The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-03-09

would be affected by statute is fatal.
All must be included, or the law is not gem
the line be drawn? Here authority is in
accord with principle. bray vs.. Hudson.
Camden. 20 n. J. l., 81; Il All Rep. I37;
Manning VS.. Kllppel, 3 Ore, 367: Miller vs.
kisters o. Cal, l42; Pae. Rep a3; Town
ship of Lodi VS.. State On. J. SUPP. Is; Att
Rep, 49,"
To the same effect see Devine VS.. Board
OF Commissioners, 81 Pa St, 125; McCarty
VS.. Commonwealth. 10 Pa St. 2iS. An
other act applicable 10 one county was held
local. Commonwealth VS.. Patton, % Pa. ST,
man VS.. Williamsburg etc. Ry. Co. Is Pa
St, 1872; Sutherland on sta Con, Sec. III,
supra, and Secs. l2S 129 id.
THE ACT Is UNCONSTITUTIONAL
Although, as before stated the Supreme
Court of this State, as such, has not passed
upon the constitutionality of the act in
question, yet Justice McCabe. of that court.
In his dissenting opinion in the case OF
Henderson VS.. State ex rel Stout. supra,
has given US the benefit and weight Of his
opinion upon that subject, and inasmuch
as his opinion upon that subject is not TO
that extent In conflict with the opinion OF
the majority OF the court. il must there
fore receive due consideration. In the
course OF his opinion the learned justice
says:
''As the local and special feature of the
act is not in aid OF n graduation or ices
according to population and services re-
qu1red, the only case in which such speclal
and local features is allowed, and outside
or WHICH 1T IS forbidden, the act Is clearly
in conflict with the Constitution in that re-
spect. L think the act is unconstitutional in
another respect. 1t provides a schedule or
fees to be taxed by ali county officers in
the State, and makes such fees. when
taxed, the property Of the county in which
they are taxed; 1t provides salary for
Shelby county, where il provides no salary
or compensation for the treasurer, auditor
81 81 100 -. ~ We HdSe Sell, 'iiiI
the act both local and special, and IL IS
not done i'm aid of as incident TO a grad
uation of fees or salaries"
There can De no doubt or the unconsti-
tutionality of the act in question. far
il applies to recorders, IN view OF the
authorities from which have quoted. The
act violates the constitutional provision
that there shall be special local
legislation upon the subject of fixing fees
and salaries, not only by the omission
TO place the fees of the auditor. treasurer
and recorder of Shelby county in the gen.
eral scale OF fees. and by reason OF the
further fact that the act leaves the people
of that county and indeed all people having
business with those offers in that county,
to compensate them under the old system
OF foes which If the T,a,rislatlire had on
acted a valid law, 1t murc be presumed
that 1t intended to abolish. IL this statute
recorders the result would be that IN nine
ty-one counties of the State the law would
fix maximum compensation to these OF
hcerS. which would be received by them IN
the way OF salaries, while in the remaining
county such officer would be entitled TO
all the fees of his office although IL might
exceed double the amount that the same
officer in another county having the sans
population Shelby would receive. Even
the strained reasoning that IL should be
presumed in support or the act that ths
Legislature found that the aggregate OF
the fees OF the recorder of Shelby county
under the act of 1879 was the equiValent
of the amount which he would be entitled
to under the scale of fees adopted In the
act falls to the ground when il is consid-
cred that even If such was the case when
the act was passed, yet the act was meant,
and did apply, TO the future, and in the
ance that the recorder of Shelby county
would not in the year Immediately follow
ing receive an aggregate amount Of fees
exceeding the compensation the Legislature
intended to give him, but such a course
of reasoning is in no event worthy Of seri-
Gus consideration because in practical effect
three officers of Shelby county are at liber-
ty TO make all they can out of their offices
under the old fee system, while like officers
in other counties are put upon salaries.
No heed can be given 10 the contention
that the act should be supported because
the Legislature intended TO pass law which
was not local or special No legal PROPOSE
ton could be fraUght with more danger
than the proposition involved in this con-
tention that II is, within limits, within the
power of the Legislature by the mere form
of It's enactment TO evade the Constitution.
1t is true that court would not presume in
a given case that the Legislature acted
from other than high and patriotic motives,
but no court could for an instant yield to
a proposition so subversive to constitutional
government as that the Constitution might
be set at naught because the form of an
act was such as TO lead 10 the inference
that the Legislature intended to obey the
Constitution, when, in point OF fact. IL
utterly violated by the act. In State vs.
Judges. q Ohio St, II. the court says:
THE constitutionality of act is TO be
determined ~ its operation and not by
the form 1t may, be made to assume"
IL is not argued, and, | take IL, will not be
contended that the act OF 1898, fixing the
salary of the recorder auditor and treasurer
of Shelby county, rendered the act OF 1891
nullity. and an act which is void cannot be
the subject of amendment. Estate VS.. Tufy,
20 New 427; 6. c. 10 Amer. St. Reports 34)
The enactment of a law putting an end
possible. In many instances, for officers to
secure a competency within the short space
of a few years, system under which IL
was possible for an officer who had expended
large amount of money to secure his cleo
ton "by fraud and GOWN" in the language
of Coke, "tO make his bargain good" would
ment But courts in cases where their duty
is plain have nothing TO do with eXpediency
or with popular opprobrium or acclaim, but
must declare the law boldly and administer
1t with unfaltering hand.
While a decision by the Supreme Court as
to the constitutionality of the act in ques-
ton can alone be looked TO for an authori-
tative declaration OF the law upon the SUBJ
iect yet IL Is nevertheless the solemn duty
of every Judge, however humble, TO admin
lister his office in accordance with his opin-
ion of what the law, is, and it therefore be-
comes my duty to declare the act i'm ques-
ton. so far as 1t relates TO the fees and SAL
aries of county recorders, unconstitutional
and void. The finding will b or the de-
PENDANT.
The case will be Immediately appealed to
the Supreme Court.