DISSENTING OPINION. I find myself unable to agree with the conclusion reached by the majority opinion.
In addition to the facts stated therein, it further appears that for each of the years 1930, 1931, and 1932, *Page 419 in making up the budget for his office expenses, appellant asked for the allowance of a salary of only $10,000 per year; that before he filed this action, he filed with the board of commissioners of St. Joseph County his claim for the additional salary of $13,750, based upon the 1930 census; that the claim was allowed by the board of commissioners and was not appealed from, but he alleged in his complaint that the county council refused to make an appropriation of any funds with which to pay the allowance until the appellant obtained a judgment for the same, and for that reason he filed this action. He alleged in his complaint that Chapter 81 of the Acts of the General Assembly of the State of Indiana, approved March 11, 1929, known as the"status quo" law, was unconstitutional and void for the reason that it violated §§ 19, 21, 22, and 23 of Art. 4 of the Constitution of Indiana and had no application to the provisions of said § 7839.
The appellees filed a motion to dismiss said action and addressed a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action because (a) there was no allegation that an appropriation had been made; (b) it appeared that the salary of the appellant was governed by the "status quo" law of 1929 (Chap. 81, p. 275, Acts 1929), providing that a change in tax valuation or population, according to the United States census of 1930, should not ipso facto alter or affect the classification of any municipal corporation in the state until "the laws or any of the laws applicable to such municipal corporation shall have been specifically amended by the general assembly" (the 1929 act defined the term "municipal corporation" to include counties); (c) the appellant's salary could not, by virtue of § 7864, Burns R.S. 1926, be increased during his term of office; (d) it appeared affirmatively that the appellant was estopped from *Page 420 claiming the additional salary; (e) there was no showing that the estimate filed included the sums demanded so as to comply with § 5881, Burns R.S. 1926 (requiring estimates of anticipated expenditures for the ensuing year to be made, filed, and published by the auditor).
Appellees' motion to dismiss was overruled and their demurrer was sustained to the complaint. The appellant refused to plead further; judgment was rendered against him and he perfected this appeal.
One question before this court is the constitutionality and effect of Chapter 81 of the Acts of 1929. As far as this question alone is concerned, if that chapter is invalid, or does not apply to § 7839, the appellant should prevail, otherwise the judgment should be affirmed.
It affirmatively appears that prior to April 1, 1930, the salary of the appellant was governed by § 7838, Burns R.S. 1926, and under the classification there designated, was fixed at $10,000 per annum. When the United States census of 1930 became effective upon that date, St. Joseph County was placed under the classification of § 7839, Burns R.S. 1926, and the auditor's salary under that section was automatically increased to $15,000 per annum, unless Chapter 81 of the Acts of 1929 had the effect to and did cause the salary to remain as fixed by the classification of said § 7838.
While the appellant charged in his complaint that said Chapter 81 violated each of the §§ 19, 21, 22, and 23 of Article 4 of the State Constitution, he has waived the alleged error as to the violation of §§ 19 and 21 by failing to discuss the same under propositions, points, and authorities, and has confined himself to the question that Chapter 81 of the Acts of 1929 is in violation of said §§ 22 and 23 of Article 4, and contends that if Chapter 81 is held to apply to § 7839, Burns R.S. 1926, its effect would be to render the latter statute unconstitutional, as violative of said §§ 22 and 23, since the result *Page 421 would be to create, by retroactive operation upon the statute, a class of counties the salaries of whose auditors are not based upon "population or necessary services required," but are permanently fixed arbitrarily at a determinate amount regardless of population or services, thus resulting in local or special legislation.
Appellees insist that the application of said § 7839 was suspended by Chapter 81, Acts 1929, and that the legislature had the power under § 26, Article 1, of the State Constitution to suspend the application of said statute, and, therefore, the appellant was never entitled to the increased salary sued for herein. They cite as authority for their position the case ofSallwasser v. City of Laporte (1933), 205 Ind. 248, 251,186 N.E. 297, which affirmed a decision of the lower court upholding Chapter 188, Acts 1909, which suspended the application of the 1910 United States census as to certain officers of cities affected by that census. Section 1 of that Act, amending a former Act concerning elective officers of certain cities, provided that cities of the fourth class having a population of more than 20,000 after the 1910 census, which would make them cities of the third class, shall continue to be cities of the fourth class until the expiration of the term of office of the officers elected on the first Tuesday after the first Monday in November, 1909.
While the constitutionality of the 1909 Act was not questioned, the effect of the decision was to uphold a statute which caused the salaries of officers of cities of the fourth class, under the old census, to remain the same, regardless of the 1910 census which would place such cities in the third class.
Chapter 81 of the Acts of 1929 does not purport to be an amendment to any specific existing statute. It is an independent act. It makes no reference to any particular statute or part of statute by its title or otherwise, *Page 422 but refers to the law generally wherein any municipal corporation (which term by definition of the Act includes a county) is classified by population as shown by the United States census and assessed valuation of property, and provides that such municipal corporation (county) shall continue to operate under the laws applicable thereto at the time of the passage of the 1929 Act, and that such laws shall not be affected by the census of 1930, until such laws shall be amended by the general assembly. The effect of the 1929 Act was to adopt the fee and salary laws, then in existence, and continue them in force and in "statusquo" unaffected by the United States census of 1930, or by any change in valuation of taxable property. Such general statutes are held to be valid. 25 R.C.L. 907, § 160; State ex rel. v.Leich (1906), 166 Ind. 680, 78 N.E. 189, 9 Anno. Cases 302.
At page 682 of the Leich case it is said:
"When the adopting statute makes no reference to any particular statute or part of statute by its title or otherwise, but refers to the law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of the adopting act but also all subsequent laws upon the particular subject referred to." (Citing authorities.)
The 1929 Act did not make any change in the salary of the appellant. All salaries remained the same after the passage of said Act as they were before.
The General Assembly, at its regular session in 1929, possessed the power to alter the classification of municipalities and the fee and salary laws by two methods: (1) by a new act, and (2) by an amendment of the old act. State ex rel. v. Bowman (1927),199 Ind. 436, 156 N.E. 394. Either the new act or the amendment is to be construed as if it were a part of the old act (that is the Act of 1921 in the instant case), from its beginning. *Page 423 Walsh, Treasurer, et al. v. State ex rel. (1895),142 Ind. 357, 41 N.E. 65; State ex rel. v. Bowman, supra; Metsker v.Whitsell (1914), 181 Ind. 126, 140, 103 N.E. 1078.
Therefore, the 1921 Act must be read to include the provisions of the 1929 Act. When so read, no doubt remains as to appellant's salary. It is $10,000 per annum.
The constitutional provisions which the appellant seeks to invoke are not applicable to such statutes. See State ex rel. v. Greenwald (1917), 186 Ind. 321, 116 N.E. 296. In that case it was held that the 1911 Act was complete in itself in providing for two additional judges in Lake County and that the rules as to amendments did not apply, though it had the effect of modifying and curtailing the existing law, and was valid under the sections of the constitution questioned in this appeal.
The 1929 Act retained § 7839, Burns' R.S. 1926, and other similar statutes in "status quo," and in operation the same as they "would have done if there had been no increase or decrease in the population or the assessed valuation of such municipal corporation, as shown by such census of population or assessment of property, and such municipal corporation shall so continue to operate until the laws or any of the laws applicable to such municipal corporation shall have been specifically amended by the general assembly." The effect of the Act was to repeal the automatic feature of such statutes. It is the same, in effect, as if a new act has been passed fixing the appellant's salary at $10,000 per annum, or as if the 1921 Act, when enacted, contained all the provisions of the 1929 Act.
The General Assembly of 1933, by the passage of Chapter 21 of that session, enacted new fee and salary laws for such municipal officers, and fixed the auditor's salary of St. Joseph County at $5,200 per annum. The legislature possesses the right to increase or diminish *Page 424 salaries of public officers in cases where the same is not restricted by the constitution. The 1929 Act refers to "any law of this state" and does not profess to amend any statute. It refers to existing laws and modifies the same in the particulars mentioned therein. In reference to Article 4, § 22, of the Constitution, it is for the legislature to determine what compensation is "in proportion to the population and the necessary services required," and can only be set aside by the court when there is a "gross departure and manifest abandonment and defiance of the constitutional requirements." This court would not be justified in saying that Act transgresses either § 22 or § 23 by a grant of "privileges or immunities." Board,etc. v. Lindeman (1905), 165 Ind. 186, 73 N.E. 912; Harmon v. Board, etc. (1899), 153 Ind. 68, 54 N.E. 105; Board, etc. v. Chapman (1898), 22 Ind. App. 60, 53 N.E. 187.
Since it is the duty of the legislature to determine what compensation is in proportion to the population and the necessary services required, the court will presume that the legislature adopted the Act in question with that standard in mind. That the Act placed the auditor of St. Joseph County on an equality with other county auditors.
The Act does not cease to be a general law, under the constitution, by reason of the fact that different salaries are designated in the several counties. To hold that there must be one law for the whole state, governing alike populous and sparsely inhabited counties, making the same provisions for the one as for the other would defeat the purpose of the constitution. A general law cannot provide adequately for all the necessities of all the governmental subdivisions of the state. Section 7838, Burns R.S. 1926, providing for a $10,000 per annum salary for county auditors in counties of a designated population, to which class St. Joseph County belonged *Page 425 prior to the Federal Census of 1930, the validity of which statute is not questioned by the appellant, would be held valid even though St. Joseph County were the only county in the state falling within that class. City of Indianapolis v. Navin (1897), 151 Ind. 139, 47 N.E. 525; Campbell v. City ofIndianapolis (1900), 155 Ind. 186, 204, 57 N.E. 920;Evansville, etc., R. Co. v. City of Terre Haute (1903),161 Ind. 26, 67 N.E. 686; State ex rel. v. Kolsen et al. (1891),130 Ind. 434, 29 N.E. 595; State ex rel. v. Reitz, Auditor (1878), 62 Ind. 159.
The 1929 Act is general in its application, not local or special, but is so worded as to leave the compensation of all public officers unchanged. To be specific, it was evidently the legislative judgment that the salary of the appellant was ample and should not be increased to $15,000 per annum in the event that the United States census of 1930 should show an increase in population of St. Joseph County. This court possesses no power to question the judgment of the legislature upon that subject.
It is not denied by the appellant that the legislature possesses complete power and control of municipal corporations, subject only to the restrictions of the state and federal constitutions. Neither does the appellant dispute the authority of the legislature to fix the fees and salaries of municipal officers. The defect or infirmity of which appellant complains, consists in the method employed by the legislature in providing that all municipalities shall remain in "status quo" and that the automatic feature of certain statutes shall be inoperative. The defect or invalidity of the Act of 1929, as claimed by the appellant, does not extend to the absence of legislative authority to enact a new law upon the subject or amend the old one, but the objection goes to the specific method employed, and the assertion that the Act does not apply to the instant case. Upon that question *Page 426 no legal reason has been pointed out, and none occurs, why the Act does not apply to § 7839 and is a part and parcel of it. The purpose of the legislature is plain. It was intended to prevent certain officials from receiving salaries disproportionate to those of other counties, considering the necessary services required.
Even in cases of doubt as to the constitutionality or applicability of an act, the doubt must be resolved in favor of the legislature. The purpose which the legislature had in mind is clear. It sought to relieve taxpayers of additional burdens of taxation by preventing possible increase in salaries of certain officials, which was likely to happen on account of the automatic feature of statutes classifying municipalities, and likely to be changed by the approaching Federal Census of 1930. The 1929 Act was a short method of accomplishing the result; it was remedial, correcting inconsistent salaries provided for, or made possible, by the 1919 and 1921 Acts, in order to make such salaries conform to and be upon an equality with the salaries of the auditors in other counties of the state. When the 1921 Act was passed by the legislature it affected Lake County only, as this court knows by taking judicial notice of the Federal Census. It must have occurred to the legislature, when it was in session in 1929, that if the 1921 Act was permitted to stand as written, it might have the effect of placing other counties in that classification and thereby cause the salaries to be disproportionate to salaries in other counties. At that time the salaries, for example, of the county auditors in Allen and Vanderburgh Counties were $6,500 each. The same legislature of 1921, which enacted Chapter 65 providing for a salary of $15,000 a year for auditors of counties of a certain classification, enacted another law, Chapter 274, which provided that in all counties having a population of 300,000 or more, according to the last preceding United States Census, *Page 427 the salary of the county auditor shall be $7,500 per year. These references are sufficient to disclose the evident purpose of the legislature in enacting the 1929 Act in order to prevent some counties, St. Joseph County as one, from paying the auditor a salary out of proportion to that received by other auditors of the state. The Act was intended to be and is general in its application, and is entitled to favor and respect upon the part of the court, especially if the effect of it is in harmony with equity, justice and public policy. Such remedial action by the state, through its legislature, deserves to be considered in that light.
Some consideration may be given to the conduct of appellant. For the years of 1930, 1931, and 1932, he demanded only $10,000 per annum, which was paid. That appears to have been his construction of the law. He did not ask for the $15,000 until he had received $10,000 for each of those years. While this fact is not controlling, it is significant of what appellant thought he was entitled to at the time the services were rendered.
Aside from the question as to what salary the appellant thought he was entitled, the paramount object or purpose of all construction or interpretation, in respect to written laws, is to discover or ascertain the intention of the legislature. The intention of the 1929 Act is obvious. Guided by this rule, in the light of the circumstances as they existed at the time the law was enacted, it must be admitted that the purpose or object was to repeal the automatic feature of the statutes affected thereby, and to prevent increase in official salaries. The Act is expressive of the legislative determination of the amount the auditor of such county should receive for his services. It was enacted evidently for the purpose of safeguarding the public treasury and preventing profligacy of expenditure, by increasing salaries in certain *Page 428 counties on account of possible increase of population as might be shown by the approaching 1930 Federal Census, until a new fee and salary law could be enacted. It was competent for the legislature to determine how far the county should become indebted to the appellant for services as county auditor and to enact a law declaring that his salary should remain the same as then fixed by statute. The 1929 Act was in full force and effect before the Federal Census was taken in 1930 and before the appellant entered upon his second term as auditor of St. Joseph County. At the time he entered upon his first term, the population unquestionably placed him in the $10,000 per year class. The sole effect of the 1929 Act was to leave him in that class.
The lower court properly sustained appellees' demurrer to appellant's complaint.
For the reasons given above, I think the judgment of the lower court should be affirmed.
TREANOR, J.
I concur in the result reached by Tremain, J., in his dissenting opinion. For substantially the reasons set out therein I think the judgment of the lower court should be affirmed.