The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1899-05-05
FEE AND SALARY BRIEF.


A brief insisting that the fee and salary
laws Of 1891 and 1895 are unconstitutional
was yesterday filed in the Supreme Court
by ex-Judge James McCabe, Charles L.
Henry. Byron Mcmahon and James A. Van
Osdol. attorneys for Moses d. Harmon, ex-
recorder of Madison county, in his appeal of
the suit brought against him by the COM
missioners of the county. The purpose of
the suit is to test the constitutionality of
these two laws and the brief contends that
the acts do not grade the compensation of
the count officers in proportion to the
population Of the counties and in proportion
to the services. This particular point. the
brief says, was considered by the Supreme
Court only in the Legler case, and the
decision upholding the constitutionality OF
the law was by a divided court in which
three were for the majority decision and
two for the minority. Every decision TO
hold the law constitutional was by a divided
court. TIL brief comedies that the majority
opinion is binding on all inferior courts of
the State until overruled. Not so, how
ever. as to this court on the constitutional
question If the previous decision appears to
be erroneous" continues the brief. This
is so because the constitutional provision
involved still continues to speak and COM
mand obedience from the courts as much as
Ii ever diu The constitutional provision
was not abrogated by the previous de-
cisions, because nothing but the act OF the
sovereign people can ~abrogate or abolish a
constitutional provision"
The brief holds that, to maintain the first
objection, II Will not be necessary to over
rule any of the previous decisions, or even
to modify them, because in none of them
was the question considered or thought of
except I'm the Legler case and in that case
both majority and minority opinions fully
recognize and adopt the construction of that
clause Of the Constitution that requires the
compensation OF county officers TO be graded
on population and services. The brief
rgues at some length TO the effect that the
graduation OF compensation as to services
population and services at the beginning of
the term, but to those at the close of the
term and TO all county officers. The brief
holds that allegation and proof of facts to
establish that an act of the Legislature in
its enforcement and operation violates the
Constitution, is competent. Numerous
cases in support OF this contention are cited
and the claim is made that incontestable
evidence appears on the face OF both acts
the Constitution as TO the graduation and
compensation OF county officers In proper
ton to the population and services rendered.
In support Of this contention the increases
I'm salaries of the same officers, allowed
by the act Of 1895 over those allowed by the
act OF 1891, are cited and the further claim
il made that as the increase in population
permitted this increase for those years. the
increase since the last date Will permit the
same RESULT IT - CEdlLUtQ tldl Olc luCTtdSe
between the two acts named was $1,000 TO
the officer.
The second objection that both OF the
acts make an u~nfounded and arbitrary
classification of the county officers ex-
empting one class from the operations Of
the law and subjecting the other to its
operations and effects, is argued at some
1ength and the brief closes with the words,
Therefore. We insist with unbounded con-
idence that both of said acts be held I'M
constitutional by this court and thus COM
nit the duty anew to the Legislature TO
frame and enact a valid fee and salary
law. The confidence with which we urge
such a decision upon this court is born of
the conscientious conviction on the part Of
the writer thereof. that only such a de-
cision would support the Constitution and
OF the further fact that the conclusion
urged Is not only one that he should feel
constrained 20 reach himself IL he We're on
the bench. but Is one which he did feel
constrained to reach under the solemn
sanctions OF his oath to support the Con-
stitution while honored with a seat on this
hanQh