The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-11-28
AND SALARIES
LAW AS TO COUNTY TREAsuRERs
UNCONSTITUTIONAL.
Decision Of the Supreme Court n Pre-
cedenf for a Similar Ruling as to
Auditors and Recorders.

opinion written by Judge Hackney, decided
that the fee and salary law adopted in
Aiarcn, 1881. Is unconstitutional. as far az
II relates to county treasurers. The case
went up from Benton county. Under the
ute OF the State ex rel, the Board of
commissioners, versus Abram c. Boice.
The treasurer involved was elected after
the law went into effect. Judge Hackney
was asked, yesterday, as to the scope of
the decision. and said:
lhis case involved a question as to the
salary system. The court holds that the
law Is unconstitutional because it violates
tnat part or the Constitution which re-
CURES all laws relating to the fees and
salaries or county officers to be uniform
throughout the State and Of general opera
uon. In no instance is the law allowed to
De special or local. BY reason Of the omis-
sion In the act of 1sei to provide for the
salary or the treasurer in Shelby county,,
as In each Of the other ninety-one counties
OF the State, the law became local and,
therefore,, unconstitutional. The act of 1893
"nich purported to amend the law by pro-
viding a salary for the omitted officers of
oheioy county was considered by the court.
Inc original law being invalid, il was as If
there was no law and the amendment
therefore, could not avail to remove its I'M
soundness. By ~analo~v a newspaper might
say That the same rule renders the law un-
constitutional In regard to the Offices of
recorder and auditor, for the reason that
these offices were not treated i'm this coun-
~ as In all other counties. The newspapers
could reason thus by analogy, but the court
could not because il is a rule of law that
a court will not pass upon any question
that is not properly before it,"
Judge Hackney was asked to reduce to
common p~arlance the decision of the court
in the case of the State ex rel. of Thomas
Mckay VS.. Jonn Il. Krost, recorder of
Lake county, on appeal from the Lake
Circuit Court. This involved the law as it
applies to the office of recorder. Judge
Hackney said:
THE RECORDERS FEE.
This was a case in which Krost, the re-
corder elected after the passage of the law
refused to accept from the ~relator, Mckay,
a fee of 81 for filing a deed, this being the
sum named in the law as the legal fee to
be charged. He demanded A.25 for the
work. and Mckay vent before the court
and sought a mandamus to compel the re-
corder to accept the fee named in the law.
Inc court refused to grant a mandamus,
thus holding that the law was unconstitu-
tlonal as the recorder averred In his de-
Iense. The case came up TO the Supreme
Court, therefore,, on appeal. The court acted
on the theory that the act Of 1891 had pro-
vided two distinct systems Of charges, one
o. salaries and one by fees. for the COM
pensation of public officials for their serv-
ice to the people. In determining the valid
ity of the provisions. we decided that the
two systems were separate. By that we
mean that because one was invalid, the
tenn providing for fees is complete and
valid The real question being one OF fees
the amount chargeable for filing a deed
even IL IL were unconstitutional as TO sala-
ries. this does not affect the system OF
fees. BY analogy again it is proper for a
newspaper TO reason that the law, as 1t APP
Office, is also complete and valid. The de-
cision OF last winter in the Stout case
settled that The law, as 1T applies to the
sherin's Office Is also complete and valid.
I'm regard TO the case of deciding the law
H.oa Tie salary feature, il will be readily
seea thar there is no inhibition placed upon
= law providing salaries for county Off
'ers, n the law is made Of general applica-
Ion and uniform in its operation through
out the State. The error. therefore. as re-
CARDS Shelby county. in the act of 1891, is
responsible for the downfall OF the law. The
5.il, as II was passed. did not have this
Ie sss or H"l pnrc fh,Sasbie t enro aireS Clerk. ea the
omission was mad which caused the
trouble. In other words, the law as passed,
was not defective in this regard, but was
transcribed by some one VINO either pur-
posely or careiessly left this defect in the
copy which the Governor signed. This is
what governs, the Supreme Court holds,
and yet IL Is exactly the same sort OF an
error which the present Governor. as Sec
rotary or State, corrected in the gerry
mander act of 1891. This was declared un-
constitutional by the Supreme Court. but
entirely upon another course of attack. 1t
would have been just as legal for the Sec
rotary of State to have inserted the evil
IDENTIFY omitted portion OF this transcribed
bill as in the gerrymander case. The law
breaks down, therefore, ON a technical de-
stands as to the others. The effect is to
open the way for an unscrupulous and de-
termined lobby of influential men who will
tnrong the Statehouse and make the third
house a scene of great activity during the
next session. The decision will greatly add
to the amount of important business that
the Legislature Will have to transact and
will necessitate beginning the first day If
all IS to be done in proper forLl."
t opinion Of the court in the case from
Benton county deciding the salary was as
follows:
"Abram Boice was elected treasurer of
assuming tine duties 9e Of e That i's once snd # a WsF
alleged he received in fees collected from
persons for services performed as such
held from the Treasurer's fund estab-
lished by the act of March 3, 1891 (acts
1891, p. 324, sec. 1851 1t was further alleged
use as a part of the compensation of his
office, and denied the right of said county
TO assert or maintain any interest therein.
40 a. Ea1A akOA Tx OOilu I'll HI
treasurer fer the recovery of the sum TO
the use of the Treasures fund.- and to
the complaint the lower court sustained
the demurrer of the appellees. In support
of that ruling IL is insisted that the act of
March 9. 1891 %. S24. Sec. 1867 1t was fur
Their allowing inhibitions OF the State Con-
stitution:
The General Assembly shall not pass
local or special laws in any or the following
enumerated cases: n0 Regulating the cleo
ton OF county and townsh D officers and
their compensations; QS) in relation TO the
fees and salaries, except that the laws may
be so made as to grade the compensation
OF officers in proportion to the population
and the necessary service required Also,
that in All cases enumerated in the pre-
a general law can be made applicable, all
law shall be made general and of uniform
operation throughout the State
SHELBY COUNTY OMITTED.
THE character. scope and objects OF the
act in question were fully considered by
us in the case Of Henderson VS.. the State,
etc. OBS Ind.). and 1t Is unnecessary to
state them. The act sought to establish a
system of fees and salaries for numerous
classes OF offices and officers. among which
was that Of county treasurers. For that
class OF officers salaries were provided as
TO all the counties of the State, emitting
Shelby county, as to which county no COM
pensation by way of fees or salary was
provided. Thus. il is insisted, with other
propositions, that the act became local and
lacked uniformity OF operation throughout
salaries contemplated and adopted by ii.
In the State ax rel McCOy vs. KroSf (nt