The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-03-09
FEE AND SALARY LAW
Important Opinion by Judge Gill
lett, of the Lake Circuit Court.
He Holds that the Provisions of the Act
Relating to County Recorders Are
Unconstitutional.
Special to the indianapolis Journal.


Lake Circuit Court, to-day, Judge Gillett
rendered his opinion in the case of Thos
McCay against John +. Krost, recorder of
Lake county. This action was brought for
the purpose of testing the constitutionality
of the fee-and-salary law passed by the
General Assembly of 1891. Some time ago
McCay presented a deed TO the recorder to
be recorded, and rendered a fee of 81 in pay
ment for such service. The recorder refused
to record the deed for that fee, and suit
was brought The case heard a few
days ago, and to-day the court rendered
the following opinion:
This action is brought by the plaintiff to
compel the defendant TO record deed The
complaint shows that the plaintiff rendered
to defendant the deed which he sought to
have recorded, and also the amount or the
fee provided for such service by the act OF
the General Assembly of 1881, liking the
fees and salaries of officers generally. The
question as to the validity OF this act, as
applied to recorders, is the point In ques-
ton.
1t is the claim of the defendant, among
other things, that the act in question is
invalid as to him because 1t fails s. TO nix
by county, and that the act is therefore
special in it's character within the prohibit
ton of the Constitution. In State eX rel.
Stout vs. Henderson, the Supreme Court
OF this State has recently affirmed the val
idity of the act in question as applied 10
SneTlIIS ana clerks, the court nOiulIlS liltl
since the act made provision for the sal
aries of the sheriff and clerk of Shelby
county such act was not special as TO
them, and that as to them the law was
constitutional because its provisions, far
they related to Sheriffs and clerks, might
be severed from the principal act without
doing violence TO the legislative intent In
the course OF the opinion, after commenting
upon the fact that one of the evils sought
to be remedied was the collection of con
structive fees, a practice which existed.
where it obtained at all, almost entirsly in
the offices of sheritfs and clerks, the court
says: In view OF the evil to be cured and
the manifest purpose of the General Assem-
bly,, we think it not at all improbable that
1t would have passed this statute independ-
ent OF Its provisions relating to auditors,
treasurers and recorders Having reached
this conclusion, the rule that will not
decide constitutional question when not
necessary TO a decision or the case upon Its
merits applies, and we will not, therefore,
inquire as TO whether the statute is or is
not valid as 10 county auditors, treasurers
1t is manifest, therefore, that the ques-
ton presented in this case for the decision
decision of the Supreme Court that have
referred TO. Section Y of Article " of the
Constitution Of this State as originally
General Assembly shall not pass any local
or special laws in any OF the following
enumerated cases, that is to say: Regu-
lating the election OF county and township
officers and their compensation. In relation
to fees or salaries" In 1881 the Consti-
vision 1 have last quoted the following
words: Except that the laws may be
SO made as to grade the compensation of
the necessary services required"
The court knows judicially. that the chief
object which the trainers of the Constitu-
ton of 1851 had was to make an end, so far
as possible, of special and local legislation
This paramount purpose is evidenced by the
debates of the convention and also by the
fact that at the next session of the General
Assembly, a session in which many of its
members had been members of the conven-
ton, all of the prior legislation with speci-
fled exceptions, was swept off the statute
books. Under the Constitution of 1916 II
was possible to obtain special legislation for
The benefit of particular localities. and the
mischief increased until each locality be
came practically law unto Itself. and the
time of the General Assembly was largely
engrossed with the consideration Of private
and special acts with which the State at
VS.. State, Ind, 342, affords "a practically
contemporaneouS view of the purpose of the
Constitution of 1851 to limit the power Of
the Legislature to pass special laws. In
that case the court says:
ITO remedy these evils-to restore the
State from being coterie OF small indie
Tendencies, with body of local laws, like
so many counties palatine, to what she
should be, and was Intended to be, a unity
governed Throughout her borders all sub
jects of common interest by the same laws,
general and uniform in their operation-the
restrictions in Sections % and % were en-
bodied in the Constitution"
SPECIAL LEGISLATION.
1t is the contention of the Attorney-gen-
eral, who has at my request prepared a
brief in support of the constitutionality of
the law in question, that the amendment to
the Constitution of 1881, to which have al
ready called attention, restores to the Leg
islature the power TO pass local laws upon
the subject of fees and salaries With this
contention, however, l am compelled to dis
agree, because the Constitution still con-
tains special prohibition against local or
special laws 'in relation to fees and sal
aries" and the exception only permits any
thing like a want of uniformity in the
enactment Of such laws in cases where the
Legislature undertakes ito grade the COM
pensation OF officers In proportion to the
quired" This provision, in my Judgment,
contemplates that there shall be no de-
parture from the practice of uniformity,
except that sliding scale of fees or SAL
aries may be adopted which shall, in the
legislative. judgment, be fairly proportional
to the population or amount of necessary
services required, but If there was any
doubt as to which of the two constructions
should be placed upon the provision / have
just mentioned, all discussion must, never
theless, be said to be at rest because of
the further provision, already mentioned, in
the same section which prohibits the Cen
eral Assembly from passing local or special
laws regulating the election Of county and
township officers and their compensation. -
| This provision in the original Constitution
| ment of 1881, and this court Is not at lib
| erty, in constituting so solemn and important
! document as the Constitution of the
State, where every word, in legal contempla-
| ton, is supposed to be most carefully Sc
lected, and, s 1t were, hammered into place
to presume that the people, in adopting the
| amendment, intended to permit the Legis-
| lature to frame local or special laws in re-
/ lation to fees or salaries, except in so faI
| as they gave the express authority TO enact
| general legislation, grading compensation OF
officers in the manner specially provided
| for by the latter clause OF the section
| have quoted from. In the consideration OF
| the question in hand the mind is neces-
sarily carried along a path which permits
| Of no deviation to the single question, does
| the act OF 1891. so far as 1t relates TO re-
question once properly determined and there
/ must be an end of strife and contention. II
| the act in relation TO county recorders is
| not local or special legislation its validity
| must be affirmed; If, on the other hand, il
| in any degree impinges upon the constitu
/ tional aegis against local or special legisa,
| ton, then whether the act in It's genera
| is no longer a question worthy Of considera
| ton, because It's conflict with the Constitu
| ton renders IL utterly void.
| What are local or special laws? In Ran.
dolph VS. Wood, 40 y. ]. L., So il is SAID
| that in order for law to be general III
! must embrace all and exclude none whose
conditions and wants require such legfsla.
| ton, equally necessary or appropriate tc
| them" So In eX parte Westerfeld. So Cal
| $50, IL is said: "A general law must include
! all who come within Its scope and purpose
II must be as broad its object" But
there is not want of authority upon the
| particular question in hand. in speaking