I concur. The point upon which the case is now decided is that the provisions of the act of 1907, in so far as they operate to increase the compensation of officers for terms running at the time the act took effect, are not to be given a retroactive operation, that is, that those provisions do not apply to the compensation for the then existing terms, and that in those cases where the act makes a change in the mode of measuring the compensation, from fees to salaries, and where, consequently, it cannot be ascertained in advance that there is no increase, it is to be presumed from this uncertainty and the absence of an express statement otherwise, that the legislature intended thereby to provide only for officers to be elected for subsequent terms. This point was fully argued upon the last hearing before this court, but previously it had been only incidentally suggested. Upon further reflection I am satisfied that this is the better rule *Page 761 to apply and that it is not contrary to the principles of statutory construction.
A retrospective law "is one which operates upon matters which occurred, or rights and obligations which existed before the time of enactment." A fundamental rule for the construction of statutes is "that they will be considered to have a prospective operation only, unless a legislative intention to the contrary is expressed or necessarily to be implied from the language used or the particular circumstances, especially where to construe the act as retrospective in its operation would render it obnoxious to some constitutional provision." (26 Am. Eng. Ency. of Law, pp. 692, 693.) The act of 1907 is a part of the Political Code. "No part of it is retroactive, unless expressly so declared." (Pol. Code, sec. 3.) The act declares that it shall take effect immediately; but this does not necessarily mean that it shall operate retroactively.
The constitution forbids a legislative increase in the compensation of any county or township officer during his term of office. (Art. XI, sec. 9.) This prohibition, in effect, and with regard to legislation on the subject, makes the entire term of an office, with the concurrent right of the incumbent to compensation, a matter which occurs and a right which exists as soon as the term begins, and which are thereafter, in that aspect, past transactions. Any legislation affecting the compensation of such officer is to be deemed as operating upon an existing right, and the legislature will not be presumed to have attempted to change the compensation during the term, unless it expressly so declares. If such intent does not appear, the law will be construed as intended to apply only to officers elected for subsequent terms. This construction is just both to the officer and to the public. If it intends to reduce the compensation of officers in any class of counties, during the pending terms, as it may constitutionally do, the legislature can say in plain words that the change applies to present incumbents. If it changes from fees to salaries, as it may if it finds that the salary allowed will not increase the compensation, it can declare that there is no increase and that it is to apply immediately to the present incumbents. Perhaps the fact of no increase would be inferred from the declaration that it should apply to present incumbents; but where neither statement appears, it is to be inferred that an increase *Page 762 was contemplated and that it was intended to apply prospectively only.
This rule is always followed where the new law shows on its face that there is an increase. In such cases, an increase to incumbents being forbidden and beyond the power of the legislature, the logical result of any other rule, where the law takes effect during a term, would be that the new law would be unconstitutional and void and if so it might be doubtful if it could ever take effect. It has been said that an unconstitutional law is "as inoperative as though it had never been passed."(Norton v. Shelby Co., 118 U.S. 442, [6 Sup. Ct. 1125];Commissioners v. Kansas City etc. Co., 5 Kan. App. 43, [47 P. 326].) But these laws are not held void. Notwithstanding the fact that they have become laws in force, they are construed to be intended only for prospective operation and hence not void, but only in abeyance until the conditions occur to which they can apply with effect. In the mean time they are not effective, even as an implied repeal of the old law. The old law stands and controls the right to compensation until the time arrives at which, by the constitution, the new law is permitted to supersede it, and the implied repeal then takes place. The same reasons exist and the same rule may well be applied where the increase is not apparent on the face of the two statutes, or from facts of which courts take judicial notice, and there is nothing which declares or implies that the legislature had determined that there was no increase and intended the change of method to apply to incumbents.
Angellotti, J., concurred.
Rehearing denied.