Henderson v. State ex rel. Stout

Coffey, J.

On the 25th day of April, 1893, the appellee filed a petition in the Marion Circuit Court, the purpose of which was to compel the appellant, as State auditor, to draw a warrant on the State treasurer in favor of the relator, as sheriff of Vigo county, as compensation for the delivery of convicts at the Southern State prison.

It is alleged in the petition, among other things, that the relator is the sheriff of Vigo county, having heen elected to that office at the November election, in the year 1892; that in the year 1892 and in the year 1893, as such sheriff, he conveyed from Vigo county to the State prison south, and delivered to the warden, a given number of convicts, convicted and sentenced in the Vigo Circuit Court; that he was entitled to receive as mileage for the performance of such duty the sum of fifteen cents for each mile traveled, going and returning, for each convict conveyed to the prison, except when more than one was taken at the same time, to be paid out of the general funds in the State treasury; that there is in the general fund in the treasurer’s office far more than sufficient to pay the relator’s claim; that on the 21st day of April, 1893, the relator demanded of the appellant, who then was, and still is, the auditor of State of the State of Indiana; that he draw a warrant on the treasurer of State for the sum due him, to which demand the appellant refused to accede, putting such refusal upon the sole ground that the relator was not entitled to any warrant whatsoever, because the act of the General Assembly of the State, entitled “An act fixing the compensation and *554 prescribing the duties of certain State and county officers, and providing penalties for the violation of its provisions,” passed notwithstanding the objections of the Governor thereto, March 9,1891, p. 424, does not allow the sheriffs of the State to receive mileage for such services; that the claim of the appellant that the act of March 9, 1891, supra, precludes the relator from receiving the mileage claimed by him is wholly and totally unfounded in this, that the act is in conflict with the provisions of the constitution of the State and is utterly void.

To this petition, and to the alternative writ of mandamus issued thereon, the circuit court overruled a demurrer, and, the appellant failing and refusing to answer further, a peremptory writ was ordered, from which action and judgment of the court this appeal is prosecuted.

The assignment of error calls in question the propriety of this ruling.

On the 9th day of March, 1891, the General Assembly of the State, notwithstanding the Governor’s objections thereto, passed an act entitled “An act fixing the compensation and prescribing the duties of certain State and county officers, and providing penalties for the violation of its provisions.”

The act purports to fix the compensation of the Governor of the State, Lieutenant-Governor, secretary of State, auditor of State, treasurer of State, attorney-general, State librai’ian, clerk of the Supreme Court and his deputies and assistants, including his stenographer and type-writer; superintendent of public instruction, director of the department of geology and natural resources, inspector of mines, chief of bureau of statistics, inspector of mineral oils, secretary of the State board of health, judges of the Supreme Court, law librarian of the Supreme Court, sheriff of the Supreme Court, judges *555 of the circuit courts of the State, judges of the superior courts, judges of the criminal courts, prosecuting attorneys, county auditors, county treasurers, county recorders, clerks of the circuit courts and sheriffs of the several counties of the State.

It requires certain State officers to tax the fees therein fixed, and pay the same into the State treasury. It also requires the clerks of the circuit courts and the sheriffs of the several counties to tax the fees therein specified against litigants in court, and pay the same into the county treasury.

The twenty-first section of the act is as follows: "The county officers in this act named shall be entitled to receive for their services the compensation specified in this; act, which compensation is graded in proportion to the¡ population and the necessary services required in each of said several counties, subject to the conditions herein prescribed, and they shall receive no other compensa-' tion whatever.”

Section one hundred and twenty-three provides that the sheriffs of the several counties of the State shall, on behalf of their respective counties, tax and charge the fees provided by law on account of services performed by such officers; the fees and amounts so charged shall be designated "sheriff’s costs,” but they shall in no sense belong to or be the property of the sheriff, but shall belong to, and be the property of, the county. This section further provides that, in addition to his salary, the sheriff shall be allowed his actual traveling expenses for taking each convict to the State prison, to be paid out of the State treasury upon the certificate of the warden of the prison, accompanied by an itemized statement of such expenses, verified by the affidavit of the sheriff.

The act undertakes to compensate county clerks, sheriffs, auditors, treasurers and recorders, by a fixed salary *556 payable quarterly out of the county treasury from funds to be known respectively as “clerk’s fund,” “auditor’s fund,” “treasurer’s fund,” “sheriff’s fund” and “recorder’s fund.” The clerks, sheriffs and recorders can not draw from the treasury, on account of salaries, a sum in excess of the fees taxed, collected and paid in by each of them prior to the payment of their respective salaries.

Section one hundred and thirty-six of the act is as follows: “Where any clerk, auditor, recorder, treasurer or sheriff has been elected by the people of his county, before the taking effect of this act, such officer so elected, during the time that he holds such term, shall not be subject to the provisions of this act. He shall hold such term of office, and perform the duties thereof, and receive the compensation prescribed by law the same as if this act had not been passed.”

The pleadings, including the assignment of error, in this case, are in such form as to present for our consideration and decision the question as to whether this enactment is a valid law under the constitution of the State.

In passing upon and deciding the numerous intricate and important questions presented in this case by the learned counsel who have so ably briefed and argued them, it is important that we should constantly keep in mind the oft repeated declaration and rule that the power to declare a statute unconstitutional is a high one, and will never be exercised in doubtful cases. To doubt the constitutionality of a law, is to resolve in favor of its validity. An act of the Legislature is not to be declared unconstitutional unless it is clearly, palpably and plainly in conflict with the constitution. It is well to keep in mind, also, the well known rule that courts will pass upon such constitutional questions only as are necessary to a decision of the cause upon its merits. Brown v. *557 Buzan, 24 Ind. 194; Anderson v. Caldwell, 91 Ind. 451; State, ex rel., v. Insurance Co., etc., 115 Ind. 257; State, ex rel., v. Denny, Mayor, 118 Ind. 382; Parker v. State, ex rel., 133 Ind. 178.

Against the validity of the law, it is contended by the appellee:

First. That it violates section 19, article 4, of the State constitution, which declares that “every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title.”

Second. That it violates section 12, article 1, of the constitution, which requires that “Justice shall be administered freely and without purchase; completely, and without denial; speedily, and without delay.”

Third. That it violates section 22, article 4, of the constitution of the State, which provides that “the General Assembly shall not pass local' or special laws * * in relation to fees or salaries; except that the laws may be so made as to grade the compensation of officers in proportion to the population and the necessary services required.”

Fourth. That it violates section 23, article 4, of the constitution, which provides that “In all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.”

The constitutional provision set out in the first objection to the law under immediate consideration, has often been before this court for construction and application.

It has been repeatedly declared that the purpose of this provision is:

First. To prevent the passage of an act under a false and delusive title which did not indicate the subject- *558 matter contained in the act, whereby legislators might be deceived into the support of measures, in ignorance of their true character.

Second. To prevent the combining together, in one act, of two or more subjects having no relation to each other, whereby members, in order to procure such legislation as they wished, were often constrained to assist in passing other measures obnoxious to them, Hingle v. State, 24 Ind. 28.

It has been truthfully said that this provision has been the source of much perplexity, both in the Legislature and in the courts. The proper construction of its provisions was announced, we think, in the case of Bright v. McCullough, 27 Ind. 223, where it was said by this court: ‘ ‘The constitution does not assume to divide the general scope of legislation, and classify the parts under particular heads or subjects, but, of necessity, has left that power to he exercised by the Legislature, as it, in its wisdom and discretion, shall deem proper. The constitution assumes that different subjects of legislation do exist, and requires that each act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. The purposes of the provision, in view of the evils intended to be guarded against, can only be effected by requiring that the subject expressed should be reasonably specific, or, in other words, should be such as to indicate some particular branch of legislation, as a head under which the particular provisions of the act might reasonably be looked for. * * * But it should be borne in mind that the constitution only requires that a proper subject of legislation should be expressed in the title, and not the particular features or details of the law. If these relate to the subject expressed, it satisfies the constitutional provisions. The words, ‘An act concerning highways,’ *559 would express but a single subject, and yet would constitute a comprehensive title, under which almost any desired provision relating to highways might be enacted.”

It has been often decided that the title of an act need not go into details, and that it is sufficient if it indicates with reasonable precision and clearness the subject it embraces. Nor is an act invalid because it includes details not mentioned in the title, if the details are germane to the general subject designated in the title. If the subject is properly designated in the title to an act of the General Assembly, any legislation properly connected with the subject may be enacted, though there be no mention in the title, of such details. In other words, it is always necessary to designate in the title of an act the subject of legislation, but it is never necessary to mention the matters properly connected with the subject. Warren v. Britton, 84 Ind. 14; Bitters v. Board, etc., 81 Ind. 125; Benson, Admr., v. Christian, 129 Ind. 535; Farrell v. State, 45 Ind. 371; Thomasson v. State, 15 Ind. 449; Reams v. State, 23 Ind. 111; Hingle v. State, supra; State v. Sullivan, 74 Ind. 121.

It is contended by the appellee, that this act embraces a multiplicity of subjects, and that it is for that reason void. It is contended that it embraces the following subjects, namely: (1) County officers, (2) State officers, (3) judicial officers, (4) the duties of officers, (5) compensation of officers, (6) public revenues, (7) fees, (8) salaries, and that each of these are separate and distinct subjects wholly disconnected.

We are unable to agree with the appellee in this contention. Some of the matters mentioned as subjects are matters properly connected with the subject designated in the title, while others are simply divisions of that subject. The subject of legislation, as designated in the *560 title of this act, is the compensation of certain State and county officers. It is no uncommon thing in legislation to prescribe the duties of public officers in the same act which fixes their compensation. Nor is it uncommon in this State to fix in one general law the compensation of public officers belonging to different classes. Such was the fee and salary law of 1879 (Acts 1879, p. 130), which fixed the fees and salaries of the State officers, and the fees of county and township officers.

Of like character was the act of 1852, R. S. 1852, p. 433.

To the same effect was the fee and salary law of 1859, Acts 1859, p. 174.

The same practice was followed by the General Assembly, in enacting the fee and salary law of 1865. Acts of 1865, p. 128. The same course was pursued in 1875, Acts of 1875, p. 31.

Nor are we able to perceive any valid objection to such a course. The title of the act in such cases is sufficiently comprehensive and specific to call every legislator’s attention to the subject under consideration. The compensation of the State’s public servants, for services rendered, whether such services be rendered for the people of the State at large or for the people of a single county or township, embraces, we' think, but a single general subject which may be embraced in a single act of the General Assembly.

To hold otherwise is to affirm that the public officers of the State have been compensated for their services under void legislation since 1852. We can not give our assent to such a contention.

We are unable to perceive any reason which could be urged against such an act, which would not apply also to a single act fixing the fees and salaries of the State *561 officers because the State is divided into three separate and distinct departments.

We think that a provision requiring officers to tax and collect fees for the purpose of creating a fund with which they may be paid, is properly connected with the subject of compensating such officers for their public services, as well as a provision fixing the fees to be taxed and collected. Bitters v. Board, etc., supra; Walker v. Dunham, 17 Ind. 483; Bank of the State v. City of New Albany, 11 Ind. 139; State v. Sullivan, supra; City of Indianapolis v. Huegele, 115 Ind. 581; Reed v. State, 12 Ind. 641; Brandon v. State, 16 Ind. 197; Robinson v. Skipworth, 23 Ind. 311; Hunter v. Burnsville, etc., Co., 56 Ind. 213; Gillespie v. State, 9 Ind. 380; State, ex rel., v. Board, etc., 26 Ind. 522.

Section 12, article 1, of the constitution, has been before this court for construction on two separate occasions. Wallace v. Board, etc., 37 Ind. 383; Fulk v. Board, etc., 46 Ind. 150.

In the first case, the judges of this court were equally divided upon the question of the constitutionality of a law requiring fees for services performed by a county officer to be paid'into the county treasury. In that case Judge Downey wrote an opinion holding that such a law was valid, while Judge Worden wrote an opinion holding the opposite view.

In the later case of Fulk v. Board, etc., supra, a majority of the court adopted the opinion of Worden. Neither of these opinions is elaborately reasoned, nor does either of the learned judges cite a single authority in support of his opinion.

The case of Fulk v. Board, etc., supra, we believe, stands almost entirely, if not quite alone, and is out of line with all the authorities upon the subject of which it *562 treats. The validity of provisions similar to those found in this statute, upon the subject of paying fees into the county treasury, has been affirmed by the Supreme Courts of Tennessee, Iowa, Nebraska, Rhode Island, Arkansas, North Carolina and Nevada. Harrison v. Willis, 7 Heisk. 35; State v. Howran, 8 Heisk. 824; Adae & Co. v. Zangs, 41 Iowa, 536; Steele v. Central R. R., 43 Iowa, 109; State v. Verwayne, 44 Iowa, 621; State, ex rel., v. Board, etc., 4 Neb. 537; Perce v. Hallett, 13 R. I. 363; Lee County v. Abrahams, 34 Ark. 166; Murphy v. State, ex rel., 38 Ark. 514; Hewlett v. Nutt, 79 N. C. 263; State v. Judges, 21 Ohio St. 1; State v. Forgus, 19 Nev. 247; State, ex rel., v. Ream, 16 Neb. 681.

It is plain, we think, that the General Assembly never designed, by this act, to levy a tax for general revenue. Its purpose in requiring fees to be taxed and collected is to create a fund out of which those who perform official services may be paid the salaries fixed by the law. It is a matter of no concern to a litigant whether the sheriff who serves his writs is paid by him direct, or whether he receives his pay through the medium of the county treasurer, provided the amount paid by him is the same in either case. The sheriff’s fees taxed to litigants under this law are less than the fees taxed under the law of 1879, and yet we have a litigant here seeking to overthrow this law on the ground that the fees taxed under it are a tax on litigation, in order that he may collect the higher fees'for his own use. The claim, we think, is unreasonable, and without a shadow of equity to support it.

In the case of State v. Judges, supra, the Supreme Court of Ohio says: “It is competent for the Legislature to provide for compensating all public officers by salaries. If it should see proper to do so, we know of no provision of the constitution that would forbid éx *563 acting from persons requiring, and who are specially benefited by the performance of official services, a reasonable compensation therefor, to be paid into the public treasury to reimburse the public for the expense incurred in providing and maintaining such offices. It is not essential to such exactions that they should enure to the personal benefit of the officer. The officers are but the agents of the State for transacting the public business; and it is, in its nature, a matter wholly immaterial to those requiring their services whether the amount to be paid therefor goes to the officer or into the public treasury, provided no more is exacted than is just and reasonable for the facilities afforded, and the services performed. If the exactions are called taxes, they become none the less such, as to those on whom they are imposed, by being paid to the officer, than if paid into the public treasury.”

This argument would seem to be unanswerable. Indeed, it may well. be doubted as to whether a case has ever arisen in this country, to which the clause of the constitution under immediate consideration was applicable. It is first found, in substance, in Magna Charta, and was intended as a death blow to the corrupt and disgraceful practices of a corrupt judiciary in demanding oppressive gratuities for giving or withholding decisions in pending causes.

We are clearly of the opinion that the provisions of the statute under consideration are not in conflict with Section 12, article 1, of our State constitution, supra.

In support of the third and fourth objections to the validity of this enactment, it is contended that it is local and special because it does not include in its provisions persons who were elected to office prior to the time it took effect. It is said that under its provisions we have a class of officers in one county receiving fees under one *564 law, while the same class of officers in other counties are receiving salaries for the same class of services under another and different law, and that by reason of this fact the statute is local and special in its operation.

We are unable to agree with the appellee in this contention. This statute is not different, in legal effect, from what it would be did it read: “Be it enacted by the General Assembly of the State of Indiana, that all State and county officers hereafter elected shall receive the following fees and salaries, and no other.”

In other words it was intended to, and does, apply alike to all officers elected after it took effect. We do not think such a statute is in conflict with any provision of our State constitution. If such a law is invalid, then it would be utterly impossible to make a valid statute reducing the salaries of our judicial officers, for it is expressly provided by the constitution that such salaries shall not be reduced during the term of an incumbent. A statute which is of general and uniform operation throughout the State, and operates alike upon all persons, under the same circumstances, is not subject to the imputation of being local and special. Gilson v. Board, etc., 128 Ind. 65.

It is further contended by the appellee, that this statute is local and special in that it fails to fix a salary for the auditor, treasurer and recorder of Shelby county. This statute does fix a salary for the clerk and sheriff of every county in the State, including Shelby county, and whether this appellee can be heard to complain that the General Assembly failed to fix a salary for the auditor, treasurer and recorder of that county depends upon the preliminary question as to whether the provisions of the statute are so interlocked, and so dependent upon each other that the act must stand or fall as a whole, for we will not permit him to litigate a matter in which he has *565 no interest. A party can not be permitted to harrass others, and take the time of the courts in litigating matters in which he has no interests, and, for this reason, if the provisions of the act under immediate consideration are of such a character as that it can stand as to the appellee, while it might fail as to the auditors, treasurers and recorders, we will not stop to inquire whether it is or is not valid as to the latter.

The principle that a statute may be constitutional and valid in part, and unconstitutional and invalid in part, is elementary. The rule is that where apart of a statute is unconstitutional, if such part is so connected with the other parts as that they mutually depend upon each other as conditions, considerations, or compensations for each other, so as to warrant the belief that the Legislature intended them as a whole, and if they could not be carried into effect, the Legislature would not have passed the residue independently of that which is void, the whole act is void. On the other hand, where a part of a statute is unconstitutional, if by striking from the act all that part which is void, that which remains is complete in itself, sensible, capable of being executed wholly independent of that which is rejected, and is of such a character as that it may fairly be presumed that the Legislature would have passed it independent of that which is in conflict with the constitution, then the courts will reject that which is void and enforce the remainder. Griffin, Sec’y of State, v. State, ex rel., 119 Ind. 520; State, ex rel., v. Blend, 121 Ind. 514; State, ex rel., v. Gorby, 122 Ind. 17; State, ex rel., v. Friedley, 135 Ind. 119.

The argument of the appellee is that this statute embraces but one entire scheme, and, for this reason, if any portion of the law is unconstitutional the scheme fails and the entire act must fall.

We can not bring our minds to the conviction that the *566 attorney-general of the State, for the purpose of obtaining the larger salary given by former statutes, could defeat this law because it was defective as to the typewriter in the clerk’s office of the Supreme Court. Nor do we think the clerk of the Supreme Court, for the purpose of retaining the fees taxed in his office, could defeat it because it was defective as to circuit judges. Nor do we think the Governor of the State could defeat it because it was defective as to some county officer. There is as little connection between the duty of a county sheriff, as such, and the duty of a county recorder as there is between the duty of the attorney-general and the typewriter in the clerk’s office, and his duties are as distinct from those of the county treasurer as the duties of the clerk of the Supreme Court are from that of a circuit judge.

In fact there is no connection whatever, so far as his official duties are concerned, between a county sheriff and a county auditor, treasurer, or recorder. This statute as to county sheriffs is complete within itself, and capable of being executed independent of its provisions relating to county auditors, treasurers, and recorders.

In arriving at a conclusion as to whether the Legislature would probably have passed the act independent of the provisions relating to auditors, treasurers and recorders, it is not unimportant to consider the evils which the law was intended to remedy.

It is a matter of common notoriety, of which the courts take notice, that for many years prior to this enactment there was a bitter complaint against the practice of taxing what is known as constructive fees. Penal statutes had been passed, as well as statutes inflicting forfeitures, but it was found, on actual experience, that they did not eradicate the evil.

The sum illegally demanded and collected in the way *567 of constructive fees was large in the aggregate, but the amount taxed against each individual litigant was so small that it was cheaper to pay than to contest it. This complaint was wholly directed against the clerks and sheriffs of the State, and had no connection whatever with the office of auditor, treasurer, or recorder. It was the purpose of the Legislature, in enacting this statute, to strike an effective blow at the practice of taxing illegal and constructive fees by placing the officers who had previously taxed them upon a salary, depriving them of all fees, and thus removing the temptation to wrong-doing in that direction.

In view of the evil to be cured and the manifest purpose of the General Assembly, we think it not at all improbable that it would have passed this statute independent of its provisions relating to auditors, treasurers, aqd recorders. Having reached this conclusion, the rule that we will not decide a constitutional question when not necessary to a decision of the cause upon its merits, applies, and we will not, therefore, inquire as to whether the statute is or is not valid as to county auditors, treasurers, and recorders.

The title of the act is broad enough to include county sheriffs. The Legislature has declared in the act, as we have seen, that the salaries of county officers in the several counties of the State are graded according to the population and the necessary services to be performed.

In view of this declaration, we must assume that it had before it all the necessary information to enable it to fix such salaries upon a just and equitable basis, with a view of giving to each officer therein named a reasonable compensation for the services performed.

To say that the law in this respect is perfect, would, perhaps, be saying too much; but if there are hardships *568 and inequalities in the law, the remedy is with the Legislature and not with the courts.

Filed Jan. 25, 1894; petition for a rehearing overruled May 15, 1894.

We are of the opinion that this statute, so far as it relates to county sheriffs, is not subject to the constitutional objections urged against it, and that it is as to them a valid law.

It follows, from this, that the circuit court erred in overruling the appellant’s demurrer to the complaint in this cause.

Judgment reversed, with directions to the circuit court to sustain the appellant’s demurrer to the complaint.