The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-05-23
Points Made Against the COnstitutionality Of
the Act by Judge Elliott Before Judge
Brown. Of the Circuit Court.
Fort Wayne Wins Her Point in the
School Enumeration Trouble.
Left Provision for Iibrsry-Interesting
Ruliag in Mechanics Lien Case
Offenders Before the Cadi.



Judge Elliott Argues Against IL. While
smith Makes No Effort to Defend It.
The case Of the State OF Indiana ex rel.
James w. Stout. Sheriff of Vigo county.
against John o. Henderson. Auditor of
State. was called for argument IN the Cir
cult Court yesterday afternoon The case
is for writ of mandate to compel the
Auditor of State 10 issue 10 the sheriff
warrants upon the State Treasurer for the
amount claimed by bin as mileage for
transferring prisoners to the penitentiary
south. IL is the outcome of the meeting OF
various county officers from all over the
State in this city during the last Legis-
lature. It was at first intended To ask the
Legislature TO amend the law 80 as to re-
move the features which make it clear
" unconstitutional The county officers
at their meeting last winter. however. de-
cIded that better plan would be not to
disturb the law. 1t being SO pslpably de-
tective that it could not under any cir
cumstances stand the test. and. after the
adjournment of the Legislature. to bring
suit to have the law declared invalid.
Judge Elliott appears for the relstor and
Attorney general Smith for the State.
In his argument. yesterday afternoon.
Judge Elliott clearly showed the III validity
of the law In various phases. At the very
outstart be quoted authorities 20 show
that it was invalid from the nature of the
beet upon which it was pretended to
bear. The subject of fees and salaries of
county officers" said he. rs one upon
which the Legislature IS positively aud
peremptorily forbidden to enact O special
law. Nothing Is committed 10 the legis-
lstiye judgment; the Introduction Is I'M
qualified and the prohibition absolute.
There can be no question but that
the aot OF ISL 10 special. and, II
IL Is. IL Is as unquestlonebly void.
That it is special Is very clear for many
reasons. The county OF Shelby is placed
upon different footing from all other
counties. and as TO some of the officers in
this county the act of 1891 makes no provi-
sion whatever. The auditor. recorder and
treasurer are omitted in the bill as enrolled,
and the enrolled bill - conclusive as to the
act of the Legislature. The enrolled bill.
with Its infirmity. Is the only one that
went TO the Governor or could 90 to him.
The Governor Is q part of the law-making
power and just as essential to the enactment
of a law as either branch of the Legislature.
and a bill which does not 20 TO him can
not become q law. The provisions of the
bill that were signed by the presiding
officers of the Senate and House constitute
the bill ana all the bill"
After the question was raised upon the
legality of the way in which the law as il
pertained 70 Shelby county had been
enacted by Secretary Matthews the Legis-
lstnre o. 1898 sought TO relieve the law of
the defect by passing an amendments.
Judge Elliott quoted decisions showing
that an unconstitutional law being abso-
lutely void there was nothing for the Leg
islature of 1898 to amend. The act. he said.
IL special in that lt operates I'D spots and
not generally and uniformly throughout
t. the State. IL does not even operate
generally in counties. but specially,
l. e.. 1t operates as the terms OF
law Is completely broken; the citizens OF
one county pay fees under one system
while the citizens of another county pay
fees under another and different system.
The systems are diverse throughout all
some Instances In one and the
same county different laws are In force
IL the act OF 1891 has any vitality. To be
valid law must be general in its SCOPE
and uniform IN Its operation. Uniformity
Of operation Is as essential generality,
and IL 10 the operation and effect of
statute that determines the question of
generality and uniformity. and not the
form. a statute that cannot be reduced to
u general rule to operate In all parts of the
state alike, Is not q general law. The sal
aries are not and cannot be uniform. be-
cause they are made TO depend upon the
fees received. Another essential TO uni
formity Is that an act must operate uni
formly when it goes into effect. A law
speaks from the time it goes into force.
Under our Constitution there are two
modes. and only two. in which a law can
be put in to foroe: oy the declaring of an
emergency and by publication and olrcu-
lation IN the counties of the State. Here
there is an attempt to put n law into eff
feet by u third mode. and Its force - sus-
pended until the expiration of the terms of
the officers then serving and until after
the assembling of another Legislature.
The act assumes 10 cover many subjects
contrary TO the IN hibition in the Constitu-
a a m hal In
braced IN the same act. The act of 1891 as
sumes to iezislate upon county, State and
judicial officers. duties of officers. compen-
sation, the swelling of county and State
revenues. the fees and salaries that shall
be paid. and all this within one law. There
Is no attempt To grade the compensation
according To the population and services.
There Is bare. bald attempt
of the services rendered SO that
revenue may be yielded. The fees are not
intended 10 be according To the value of
the services. nor are they graded. The
scheme of gradaton Is to make litigants
and others pay more than the value of the
sersices. so that revenue may be increased.
The scheme providing that fees shall Do
paid so that surplus may remain is in
direct anita gonism Co the command that the
graduation shall be according t0the necessa-
~ services required Fees and salaries
must be fixed upon basis of population
and services. Ii liked upon that basis, lt
Is utterly impossible To make n provision
for surplus for the benefit of any gov
errmental organization. The last objection
raised 90 the law by Judge Elliott was
that population could not be made the ba-
sis for grading fees OF State officers, and
hence the tees and salaries of State
officers could not be embraced in an
act grading the fees aud salaries of county
officers.
AT the conclusion of the argument by
Judge Elliott. the Attorney general showed
an smiabls disposition to adopt tho state