The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1894-12-05
Constitution Violated.
FEE OF RECORDERS.
Only One Dollar Can BE Legally
Charged for Recording n Mortgage.

Only One Dollar Can BE Legally
Charged for Recording n Mortgage.
Another important decision handed down
yesterday was in the case of the state ex
rel Thomas Mckay VS.. John F. Krost, re-
corder Of Lake county, also relating TO the
county fees. The case was founded upon
a fee for filing a mortgage and the court
holds in the desicion that but 81 can be
legally charged by county recorders in
the state. Judge Hackney also handed
down this decision, and in it he says:
The appellee was elected recorder Of
Lake county in the year 1892, and there
after the appellants re.ator demanded the
recording Of a mortgage and rendered as
a fee therefor the sum Of 81. Upon the
refusal Of the appellee 10 record such mort
gage for Jess than $1.25 the appellants
relator sought and was denied a writ of
mandamus to enforce his demand. No
question is made as to the form Of the
petition, but the appellee insists that, while
the act Of March 9, 1891, acts 1891, page
424. provides that the fee for the service
demanded is 81, the act is unconstitutional,
and therefore, he was entitled under the
law of 1875 Or. S. 1880, sec. 5,946) TO $1.25.
THE insistence is that the act in ques-
ton violates secs. % and %. art. 4, Of the
state constitution, which provides against
the passage of local or special laws in re-
alton to fees and salaries, except that the
laws may be so made as to Trade the
compensation Of officers in p Jrtion 10
the population and the necessary services
required and providing that in all cases
where a general law can be made appli-
cable al laws shall be general and of uni
form operation throughout the state
Much of the discussion Of counsel has
been directed to the proposition that the
failure Of the legislature to provide for
the recorder Of Shelby county. while pro-
viding salaries for the recorders of the
other ninety-one counties of the state,
brought the enactment within the above
constitutional inhlbitions.
Only One Real Question.
1.-The real question at issue upon the
record IS one, not Of the salary provided
by the act Of 1891, but concerns only the
fee with which the appellant was properly
chargeable for the recording of the mort
gage, a question arising between the citi-
zen who demanded the service and the
officer whose duty it was to perform that
service. The act Of 1891 provided a salary
for the appellee, and required him to pay
the receipts of his Office into the county
treasury, to constitute a fund with which
10 pay that salary; but the question before
US does not arise between the appellee and
the treasurer as to the duty Of paying
the fees into the treasury, n)r as to draw
ing the salary therefrOm; nor does it in
volve an inquiry as 10 the claims of the
appellee or Of his county to the fee for
recording the REALTORS mortgage. Our in
vestigatiOn. therefore, must be confined TO
the validity or the law so far as it is pre-
scribed for recording mortgages, unless it
shall be found that the fee provisions and
the salary provisions Of the law are so in
dependent to cause the fall of either
by the lnvalidity Of the other.
"A full reading Of the act will disclose
that the, system Of fees therein provided
is complete not only with reference TO
the services of all recorders of the state,
but also as to all other offices whose in
cumbents are required to perform services
for persons inquiring therefor. The valid
i.y Of the act so far as il provides salaries
for the various officers, could not and
should not affect the question as TO what
fees should be charged u and collected
from the citizen, and if the salary pr0vi-
siOns Of the act We're entirely eliminated
no good reason appears for holding invalid
the system so provided when considered
with reference to the authority Of the law
making power and the rights Of such citi-
zen.
Rights of the Legislature.
"No ona would contend that the legis-
lature might not provide that fee here
tofore charged for recording a mortgage
should be more or less in the future.
This position is not controverted, but it
is stoutly contended that the act, con-
sidering alone It's provision of a system
of fees, violates the constitutional in
hibitions above quoted, since it was pro-
vided by sec 1856 Of the act that the
provisions Of the act should not apply to
officers elected before the taking effect of
the act. This contention was urged i'm
Henderson versus the state, etc, 136 Ind.
as affecting both the salary and the fee
provisions of said act. and it was there
held that by the reinforcement of the
operation of the act, though in doing so
officers in various parts Of the state were
governed some by the act Of 1875, and
others by the act of 1891, did not render
the act local or special and did not violate
the requirement that it should be uni
form in its operations We adhere to the
ruling in that case. That case is adhered
to as supporting also our conclusion that
a constitutional question will not be en-
tertained unless it is directly an issue, and
Is essential TO the decision of the case,
and, further, as upholding our view, that
the whole act should not go down because
of the invalidity Of some part Of the act
which, If eliminated. would not affect the
operation of that remaining.
I'VE do not find it necessary to decide
as counsel seems to imply, that officers
are entitled to neither the fees nor the
salary, because the Jaw may be unconsti-
tutional so far as it attempts to create a
system of salaries. But we do hold that
the question presented is: What fee may
be collected for recording a mortgage by
a recorder who has been elected since the
act of 1891 went into effect? and that we
must answer: One dollar
1.-The decree Of the circuit court is re-
versed. with directions to grant the writ
as prayed by the relator and for further
proceedings in accordance with this pro-
ceeding."