The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-04-12
REHEARING REFUSED
SUPREME COURT FINALLY SETTLES
1891 FEE AND SALARY ACT.
How the Language of the Decision
Bears ON the Disputed Gus
tOdian Act.

The Supreme Court yesterday handed
down for the second time the fee and
salary case. refusing to grant rehear-
ing. The litigation came up from Benton
county. The court declared that the law
of 1891, so far as it applied to treasurers
and recorders was null and void because
it failed to treat the treasurer and auditor
of Shelby county as these officials were
treated in every other county. The de-
cision in the case was in regard to treas
urers, and by inference the rule applied to
auditors. Previously the law relating to
sheriffs had been declared valid, and by
inference upon the reasoning was sound
as to county clerks. The refusal to grant
points and relegates the subject back to
the Legislature.
Attorney general Ketcham joined in the
petition to the court to grant rehear-
ing, owing to his desire to have the orig
inal bill corrected. He asked then that
the court might go back to the engrossed
bill, which was correctly transcribed from
the original bill. The court declares that
it is not possible for the court properly TO
go back of the record. and instanced a
ruling on the subject OF the
United States Supreme Court in
the recent tariff act. A section which
had been Internationally left out was dis
covered and the court was asked to rein
state it, but declared that it was not the
practice of the court to do SO. The court
then discusses the complications that arise
out of the former ruling declaring the law
unconstitutional The opinion says that
bearing In mind the legislative theory Of
the act the fees should stand a credit
upon the officers salary. Considering tie
Of he ,alxo 81
of treasurers' salaries, complete in all its
parts, but now found to be unconstitu-
tional, the court says that necessarily the
system fails, and with 1t the requirement
that he should pay the fees collected by
him into the treaSurer'S fund. By Section
135 of the act it is provided that he shall
not receive both fees and salaries, and
is estopped to claim hereafter the pay
ment of the salary; but since the law of
1879 is repealed the court says 1t cannot
hold that the fees may be collected or
held as compensation under the law. The
court then continues:
1.-The inquiry may arise as to the source
of compensation of the treasurer, who may
have paid into the treasurer's fund the fees
collected by him, but of this question we
venture to offer no opinion but we may
suggest that if the county board does
not make the payment, the only remedy is
in the Legislature"
to have the law of 1891 established on the
theory that It was defeated by fraud. The
blanks until the court should give this
opinion, owing to a question as to the
mode of action. Encouragement ketch-
am said yesterday that the county officers
who used their influence in the recent Leg
islature to prevent the law from being COR
rected would now find that they had dam
of the court is that treasurers can receive
no salary under the act of 1891, because
the act is unconstitutional, and none IN
der the law that prevailed previously to it
because it was repealed. There is moth
ing for the treasurer therefore except the
fees earned This would also apply to
treasurer entitled to any compensa-
ton whatever until the new act of 1896 is
declared in force. except the fees that
may be collected, and these are small. The
judges Indicate in their decision that the
recorder cannot receive a salary because
the law is unconstitutional, neither can
the valid part of the law belong to the
county and do not in any sense belong
to the recorder. The court declares that
the only relief that may be had from the
situation for the auditors and treasursrs
is to apply to the legislature
The decision. of the court has very
custodian act, over which the Legislature
broke up in disturbance. Secretary of
State Owen has gone to the engrossed bill
for his copy of the act for printing in
the acts which the Governor will have to
promulgate. The Secretary of State in 1891
did this very same thing, for the part of
the law which he found to be missing
This the Supreme Court declares cannot be
done, for the reason that the courts are
guided absolutely by the enrolled act. The
decision of the court in the case went
somewhat further than the subject seemed
to call for in order that perplexing situa-
ton might be elucidated by the only aau-
difficulty. 1t is possible that foreseeing the
trouble over the custodian act the court
was not adverse to declaring an opinion
which would settle the principle involved
in that.