The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-04-26
County Officials Bring Their Suit to
Overthrow the Fee and Salary Law.
Brought on q Plea for SherifTs Mileage
and the COnstitutionality of the Act
Attacked In Sweeping Terms.
Why the Democratic Legislature Re-
fused to Put 1t on a Valid Basis.
Husband Charged with Inhuman Cruelty
Hearing in the Eyster Case Post
poRed A~gain-Court Briefs.

A few minutes past noon yesterday Elliott
IL Elliott. as attorneys for James w. Stout,
sheriff of Vigo county, filed suit in the
Circuit Court for an alternative writ of
mandate to compel Auditor Henderson to
pay him a given amount claimed as mile
age for the transportation of prisoners to
the Prison South. The petition attacks the
fee and salary law on constitutional
grounds.
The action taken yesterday was predicted
BY the Journal during the recent Legisla-
ture. 1t will be remembered that at about
the time of the converting of that body the
sheriffs from various portions of the State
assembled in this city with a view to ask
ing it to makes some amendments in the law
and equalize its operation. The question
was fully discussed by them as we'll as by
other county officers who held meetings In
this city during the session of the Legisla-
ture. They even went so far as to secure
the opinion of five leading attorneys upon
the constitutional question, and it was the
unanimous opinion of all, as it has always
been, that the law would not stand the test.
When this opinion was rendered the county
officials Immediately decided that it
was to the best interests of their
DOOhUtUOOh5 " w nbNc I'LL HbbtcE
brought before the Legislature at all, but
to bide their time. and. after the adjourn
ment of the Legislature. to bring the
point into the courts, and have the law de-
clared unconstitutional, and their salaries
paid under the old fee system. This
plan was adopted, and the county officials,
by their lobby lists in the Legislature. took
care of the proposed amendments to the
law. n prevented all attempts by the
minority to have the law so amended
as to grade salaries according to
the population of the various counties
and thus eliminate the Objectionable point.
The efforts of the minority in this dIrec-
ton wero met with firm and obstinate re-
sistance on the part of the majority. and
the session of the Legislature passed with
out any amendment to the obnoxious law.
The complaint filed yesterday sets forth
these points:
elected and qualified sheriff OF yigo county, In
diana; that he has been such sheriff and cOntin-
uously In office under and pursuant to a general
election duly held on the eighth day OF Novem-
Der. 1892, in said county, and pursuant to a com-
mission duly issued 10 him by the Governor of
the State OF Indiana, and attested by Secretary
Of State, and that he, the ~relator, has duly given
bond as required by law.
That in the discharge OF his duties as such
to convey prisoners convicted ofthe commission
OF fel0nies 10 the State Prison South at Jefferson
Vile, Ind; that as such sheriff and in the dis
charge Of bis official duties he did coz vey to the
said State prison and deliver TO the keeper of the
said state prison q copy OF the Judgment pro
sons by the vigo Circuit Court of Indiana, and
did take the receipt OF such keeper. That in all
things he performed and discharged his official
he did, as aforesaid, convey to the state Prison
south the Following named convtcts. sentenced
to said prison by the yigo Circuit Court of In
diana, at the following times and dates, that Is
Cheek, Dec. Is. 1892; william Bivens. Jan. 10.
l Heaas. T Eillia~ 8, I Issa and TSas Charles in ssnve T:
ing the above named ~convicts to the
said State prison, the relator. in going and re-
each trip made by him in taking said prisoners
he travelled 1874 miles. That he Is and gas at
the several dates aforesaid entitled to receive a
mileage for the performance OF his duties afOre-
said. the sum OF Is cents for each mile travelled,
going and returning. for each convict conveyed
one convict was taken 10 said prison at the same
time.
That the relator is and was entitled to receive
said mileage out of the general fund of the treas
ury OF the state of Indiana, as provided by O
statute duly enacted by the General Assembly
That on the 21st day of April. 1893, there was
in said general fund money far more than suf-
fcient TO pay the claims of the r~elator, the
amount whereof the relator does not know and
Is unable to state. but he AYERS that there was in
said fund, lawfully appropriated to the pay ment
OF the mileage OF sherifs. a sum far In excess OF
that required TO pay the mileage as aforesaid due
and owing to this relator as well as to all other
sheriffs OF the State of Indiana. That there Is
now due and there was due this relatOr for MILE
age for conveying to the State Prison South the
%convicts heretofore named, on the 2lst day OF
April. 1898. the aggregate sum OF $216.40, which
Is wholly unpaid.
That the defendant, John o. Henderson. is the
Auditor of State OF Indiana, having been the
incumbent Of said office for six months.
That on the 21st day of April. 1898, the %relator,
as the law requires, presented TO the said Hen
derson as aforesaid. the written receipts OF James
Gated at Jeffersonville, for each of the convicts
heretofore named, and q written statement on
the back OF each of said receipts OF the amount
ments OF milegae Endorsed on the receipts OF said
warden and keeper OF the prison, James b. Pat
ten, TO TINS reiator, are as follows, to,wlt; on the
for William Bivens, S54.6O; on the receipt for
Harry Cheek. $54.6O; on the receipt for
William Isen and Charles p. Young, who were
conveyed to the state prison at the same time.
$500. and on the said named last receipts are
Endorsed the following items Of actual
convict. 1913; railroad fare of assistant
$11.50; pay of assistant, So; hack fare, S3. 25:
hotel fare OF assistant and convict. so" Ihaton
each OF said receipts is Endorsed the certificate
OF the relator that "the bill as rendered Is cor
reot and just, that the amount for mileage is at
the rate of 10 cents a mile each way, based upon
the number OF miles from Vigo county to the
State Prison South, as authorized by statute
That such statements were each and all duly
signed by this relator, who was we'll known 10
the Auditor of State, defendant herein, as the
sheriff of said county OF Vigo. That the relator
at the time Of presenting. said receipts so in
o0Ao1a ~ nv tAo &aoaAtCA Va "
demanded OF him, the said Auditor OF State,
that he issue the proper warrants TO the relatOr,
upon and for each of the claims as aforesaid. and
the relatOr then and there offered to sign such
q receipt or receipts for warrants as the said
Auditor of State might ask or demand, but the
said Auditor refused 10 issue any warrant or
warrants whatsoever to this %relator. he, the said
Auditor OF State, John o. Henderson,, then and
there putting his refusal to issue q warrant or
any warrants 10 this petitioner upon the sole
and exclusive ground that the relator vas not
entitled TO any warrant or warrants Whatsoever.
because the at of the General Assembly OF the
State OF Indiana, entitled A act fixing the
compensation and prescribing the duties OF GER
tain state and county officers, aud providing pen
alties for the violation OF its provisions" passed,
ernor thereto. March o, 1891, does not allow the
sheritfs OF the State. nor any sheriff OF said State
OF Indiana 10 receive mileage, and he, the said
Auditor of State. then and there read To the
relator part or Section l23 of the act aforesaid.
and explicitly declared that he would not issue
for the compensation provided for in the part of
said Section 1913. so read TO the relator as .afore-
said.
The relator further AYERS that at the time he
made the demand as aforesaid there was ana
new Is in the treasury of the stat money appro-
priated for and applicable TO the payment OF the
said claims OF the relator, as the defendant the
Auditor of State. then and there we'll knew
That the claim and pretense OF the defendant,
the Auditor of State. that the act aforesaid OF
the General Assembl of March q, 1891. pre-
cludes this relator from receiving the mileage by
said. Is wholly and totally unfounded, I'm this.
that the aforesaid act OF the General Assembly
il IN conflict with the provisions of the Constitu-
ton of the state. and Ia utterly void.
Therefore the relator prays the court for an
alternative writ of mandamus requiring John
A IIou1ar-nu aa Andifnr nj Sfafa IN faaua n