The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-01-11

were number of other points discussed in
the brief, but owing to the shortneSS OF the
time he could not present them.
Mr.. Frank II. Blackledge then addressed
the court in substance follows:
Counsel for the relator urges that the
act Of 1891, concerning compensation OF Of
hcers, is violation of Article II of the
bill Of rights, which provides that courts
shall be Open" and that Justice shall be e
administered freely and without purchase
That the act in effect creates a revenue by
recurring the surplus in excess OF the sal
ty treasury, and. therefore, that 1t consti-
tutes a tax upon litigation This question
was presented to this court I'm the case OF
Wallace vs. Board, 81 Ind, SsS, and In me
case OF Fulk VS.. Board, 46 Ind, 150. These
cases brought in question the validity or
an act OF the Legislature passed In lSIl,
regulating fees and salaries, in which II
is provide that fees shall be collected and
deposited with the treasurer OF the county,
and that any surplus above the al amount
stitute a county revenue fund. In the case
first cited the court was equally divided,
but the court In effect held that such
surplus did not constitute a tax. Subse-
Quently, however, when the question of the
validity Of the same act was presented IN
that such a provision was prohibited by
the bill OF rights. We believe that this
last expression of the court, in the light
clauses in the Constitutions of other States
and in the face of history, cannot be
maintained. There is a clear distinction
between a tax which must be the result
of a general levy and appropriated to pub
lie uses and fee which is distinctly
private compensation. This compensation
is further set forth and sustained in the
case of the Commissioners VS.. Bailey, 81
KY, 995 The law of 1891 was enacted in
full view Of the decisions of our State al
ready referred TO and the further amend
ment OF the clause of Article 4, Sec. p of
aries II was the deliberate purpose Of the
Legislature TO correct the gross inequality
of the existing fee and salary law, which
permitted enormous incomes In the larger
counties while in smaller counties the re-
turns of the fees were scarcely sufficient
to insure intelligent and competent officers
It's purpose was to place limitation upon
fees in populous counties, and not to create
n revenue. This position is supported by
tae highest 6So The e s1d IF the
others holds that such act directing
that surplus, after the payment of speei-
fed fees, shall be turned into the public
treasury, does not constitute 1t such a
revenue act within the meaning of the
Constitution"
This clause in the Constitution provid-
ing that Justice shall be administered
freely and without purchase cannot be
severed from it's historic association. His
tory has placed upon it a construction
which cannot be disregarded. The pro-
vision first appears in Chapter % of Magma
abuses of the times. We learn from the
history of those times that justice was de-
ereign. and that these denals, delays. ad-
vancement and affirmance of causes were
made the means of increasing the royal
revenue. In the time of the Charleses, as we
are assured by Halam, those charged with
the administration of justice were guilty
of the most fragrant abuses and later the
great Mansfield did not escape the arrow
OF censure. Our Declaration of Independ-
ence gave voice to the same idea, and 1t
found expression In the constitutions OF the
original States. In the case Of Perez vs..
Hallett. r. l., full emphasis is given to the
historic aspect of this question, and II Is
placed beyond doubt that the construction
which we urge is correct. Indeed, any other
conclusion would be difficult 10 entertain.
The assertion by counsel for relator that
the trainers of our Constitution did not for
a moment entertain the idea that justice
might be purchased is mere assumption. 1t
cannot be successfully contended that such
a provision is any less applicable in Indiana
than under the same conditions elsewhere,
convention would have dreamed of such a
thing being possible The trainers OF the
Constitution must proceed upon far broader
grounds. However free from the faint OF
scandal the judiciary of our State may
have been, they could not assume that hu-
man conduct is likely TO be any different
i'm the future than it has been in the past
and they were under solemn obligation
to formulate a fundamental law, not only
construction, therefore, which has been
placed upon this clause by history and the
clear and indisputable that the intention
of the clause was to provide against the
possibility of improper motives In the adj
ministration of justice. We insist there
fore that the ruling of the court I'm the
case of Fulk VS.. Board was not made in the
tom and Gr that it should give wey TO better
reasoning"
John r Beasley made the opening argu-
me 1T for the applicants, urging that the law
is unconstitutional because 1t is local and
special, because there is a plurality of
subjects legisiated upon ana because under
on justice. Further than that, IL makes no
provision for compensation for the auditor,
recorder and treasurer of Shelby county
officers
provided for, but the three enumerated.
Now what Mr.. Beasley asked the court,
is to be done with the money collected by
these three officers? You cannot pay either
OF them what he collects" said he, be
cause there is no provision in this law for
1t. 1t must be paid into the county treas
ury and the taxpayers of Shelby county
are thus relieved TO that extent OF this
much of expense. Is any other county so
blessed? This law gives rights and privi-
leges to the people of Shelby county that IL
does not give to any other county In the
State"
Mr. Beasley held that it was tax
upon justice because a portion of
the fees collected under 1t goes into the
county treasurys general fund and is thus
a tax upon litigants. For instance, a
sheriffs officer collects 50 cents for serving
a writ and part of this money goes into the
treasury, thus becoming a tax upon those
who require the services OF that official
The Constitution itself. said the speaker,
has so separated judicial from administrativ tive
officers that IL is not in the power of a
Legislature to put them together in one
general law. III the Legislature In DeneSt
of excited and prejudiced people passes
laws of this sort and they are allowed TO
stand another constitutional convention is
certainly necessity.
Mr. Beasley spoke for nearly an hour and
was followed by Mr.. Kern, one of his as
sociates in the case. The latter said that
the counsel for the State were asking the
court to strain and twist the Constitution
out of shape by permitting to stand an
act in defiance of the fundamental law
Mr.. Kern drew a picture of a partisan
Legislature enacting a law providing that
the officials in certain counties should re-
ceive fees while those of other counties
n law he maintained would be in line with
the one enacted. The law. he urged. does
not comply with the constitutional require
ment of uniformity of taxation and'is de-
fective In title.
The Attorney-general concluded the argu-
ment for the appellant He took occasion
to call the attention of the court to the
Legislature that enacted the fee and SAL
airy law which he was now endeavoring to
overthrow was even a member OF the
committee which reported TO the House,
and. as an officer sworn to support the
Constitution, he voted for IL. He also
called attention to the fact that Mr.. Kern
was a Senator in 1893, and he, too, as a
that year.
IF that section which provides that the
act shall not apply to persons in office or
elected thereto at the passage is an at
tempt" said he Ito put an act in force in
q way not authorized by the Constitution,
as claimed by the appellee, then the sec
ton is void, and the act when il went
piled to all parties then in Office or who
have been indicted into office since II