DISSENTING OPINION. I cannot agree with the majority opinion in this case. This was an action for mandate to require the auditor of state to draw a warrant for the relator and each of the other members of the General Assembly at the rate of $10 per day, in compliance with the provisions of § 6 of House Bill No. 1, passed over the veto of the Governor, on January 17, 1927, and declaring an emergency. *Page 454
The appellant relator, a member of the Senate of Indiana, filed a complaint of two paragraphs in the name of the State of Indiana, on his relation, asking that the appellee auditor of state, as such auditor, be compelled by mandamus to obey said act of 1927, and to draw and issue warrants for the relator and other members of the General Assembly at the rate of ten dollars ($10) per day, as fixed by that act. Both paragraphs allege substantially the same facts. To this complaint the defendant filed a demurrer for alleged want of fact sufficient to constitute a cause of action. The trial court sustained the demurrer to the complaint and each paragraph thereof, to which plaintiff excepted. The court rendered judgment on such demurrer that the plaintiff take nothing and that the defendant recover his costs. From this judgment the appellant appeals.
The error assigned is that the trial court erred in sustaining the demurrer of the defendant to plaintiff's complaint and each paragraph thereof.
The cause for demurrer as alleged is that said complaint does not state facts in either paragraph thereof sufficient to state a cause of action against this defendant. The legislature of 1925 passed an act to amend § 1 of an act entitled, An Act Concerning the General Assembly, the business therein, and committees and clerks thereof, approved April 21, 1881. The amendatory act of 1925, Acts 1925 p. 284, is as follows:
"Section 1. Be it enacted by the General Assembly of the State of Indiana, That Section one of the above entitled act be amended to read as follows: `Section 1. That from and after the first day of January, 1929, the pay of the members of the General Assembly shall be $10.00 per day while in actual attendance, or absent by leave, or on business of the General Assembly, or unable to attend from sickness, and $5.00 for every 25 miles they may travel from their usual places of residence to the *Page 455 seat of government and back; Provided that when a special session is called to assemble on the day succeeding the expiration of any other session no mileage shall be allowed members therefor. The speaker of the House of Representatives and the lieutenant-governor for acting as president of the Senate shall each receive compensation for his services at the rate of $12.00 per day.'"
The act of 1881 which was amended by this amendatory act is as follows:
"An Act concerning the General Assembly and the business therein and committees and clerks thereof: Section 1. Be it enacted by the General Assembly of the State of Indiana, that the pay of the members of the General Assembly shall be $6.00 per day while in actual attendance, or absent on leave, or on business of the General Assembly, or unable to attend from sickness, and $5.00 for every 25 miles they may travel from their usual places of residence to the seat of government and back; Provided, that when a special session is called to assemble on the day succeeding the expiration of any other session, no mileage shall be allowed members therefor." See Acts 1881 p. 517, § 7561 Burns 1914.
It is claimed by the appellant in this case that the act of 1925 repealed § 1 of the act of 1881 and provided for compensation for the legislature which should meet after January 1, 1929, and that there was no provision in the act of 1925, or any other law of the State of Indiana for paying the members of the legislature of 1927 anything for their services or for mileage.
Section 28, Art. 4, Constitution of Indiana, § 131 Burns 1926, provides that the members of the General Assembly shall receive for their services a compensation to be fixed by law, but no increase of compensation shall take effect during the session at which such increase may be made. No session of the General Assembly except the first under this Constitution shall extend beyond the *Page 456 term of sixty-one days nor any special session beyond the term of forty days.
It appears from this provision of the Constitution that the legislature is required to provide by law a compensation for the members of the General Assembly. This section of the Constitution also provides that no increase of compensation shall take effect during the session at which such increase was made.
A decision on the merits of this case necessarily involves the 1925 law, and a determination of its legal effect at the time the 1927 law was enacted. According to appellant, the amendment of the 1881 law in 1925 became effective upon the proclamation of the Governor only to the extent of rendering both the 1881 and the 1925 laws inoperative until January 1, 1929. No one claims that the 1925 legislature intended to pass a law which would leave the members of the General Assembly of 1927 without compensation for their services, but, by construction alone, appellant would have us give the 1925 law that effect, although it expressly provides "that from and after the first day of January, 1929, the pay of the members of the General Assembly shall be Ten Dollars ($10) per day," etc., thus expressing an intention of preserving the old law by positively fixing the time when the new law should become operative.
Courts do not pass upon the legislative motive, wisdom or justice of statutes (Wells v. Davis [1916], 185 Ind. 152, 113 N.E. 237), nor do they construe statutes out of existence unless they are so doubtful or uncertain in meaning as to leave no intention of a definite purpose, but on the contrary, if by construction the intent of the legislature can be ascertained, such intention must govern, although the strict letter of the statute may not be followed. Arnett v. State, ex rel. (1907),168 Ind. 180, 80 N.E. 153. This rule of construction so long followed in this state is subject to the exception that *Page 457 where an act is repugnant to the Constitution, it is void regardless of the intent of the legislature.
It has been held that it is the duty of the courts to uphold an act of the legislature if it is possible to do so without violating the Constitution, and in doubtful cases, to resolve the doubt in favor of the action of the legislature; but where it is clear that the law offends a constitutional inhibition, then it is the duty of the courts to uphold the Constitution, rather than the statute which is in violation thereof. The Supreme Court is not authorized to pass upon or question the motives which actuated the legislature in passing an act, the constitutionality of which is in question, the concern of the court being whether the act as finally passed is or is not valid. Jackson, Secy., v. State, ex rel. (1924), 194 Ind. 248, 142 N.E. 423.
The construction placed upon the amendatory act of 1925 by appellant would make that act unconstitutional while the construction placed upon it by appellee would render it constitutional.
Where a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional, that one will be adopted, if reasonable, which will rescue the act from unconstitutionality. Crittenberger,Auditor, v. State, etc., Trust Co. (1920), 189 Ind. 411, 127 N.E. 552; State v. Barrett (1909), 172 Ind. 169, 87 N.E. 7.
The question then is presented, is there any reasonable construction of the act of 1925, which will not be in conflict with the Constitution of the State of Indiana? Reason and authority point to such construction.
In approaching this question it is proper to take into consideration the practical construction given this and a similar provision in the Constitution of 1816, by the General Assembly itself, from the first session in 1816, to the time when House Enrolled Act No. 1 was enacted. *Page 458
The Constitution of 1816 fixed a maximum compensation for the members of the General Assembly at $2 per day until the year 1819 (§ 16, Art. 11, Constitution of 1816) thereafter leaving such compensation to regulation by law with the proviso, "but no law, passed to increase the pay of the members of the General Assembly, shall take effect until after the close of the session at which such law shall have been passed."
Under that Constitution the legislature passed several acts fixing such pay. Thus, an act (ch. XXXV, Acts 1816 p. 171) was passed, which among other provisions for the pay of other officers and employees, fixed the pay of members of the General Assembly at $2 per day (the amount allowed by the Constitution); the next act (ch. XXVIII, Acts 1818 p. 67) was passed in 1818, this time providing also for the pay of the speaker of the house and president of the senate and fixing their pay with that of the members of the General Assembly at $2 per day "until otherwise directed by law"; the next act was passed in 1837 (p. 302, R.S. 1838) and provided such pay effective after "August next" at $3 per day; the next act (§ 11, ch. IV, Acts 1843 p. 13) provided among other salaries, salaries for such members (including the then session) at $3 (the rate fixed in the act of 1837) but only for the first six weeks of the session, and $1.50 per day for the remaining time of a session; this remained the law until an act, passed in 1851 (ch. CX Acts 1851 p. 120) became operative which fixed such pay at $3 for the entire session, exclusive of the then session so as to avoid an unconstitutional increase over the pay fixed in the act of 1843, in respect of the time after the first six weeks of the session; by force of cl. 1 of Art. 18, of the Constitution of 1851, the said act of 1851 was in force and fixed the pay of members of the first session of the General Assembly under the new Constitution.
In 1852, the legislature enacted a statute, (p. 306 *Page 459 R.S. 1852) fixing the pay at $3 per day, the same as the act of 1851, which remained in force for the first session by virtue of Art. 18 of the Constitution; next in 1865 (ch. XIX, Acts 1865 p. 64) an act was passed fixing the pay at $5 per day; next in 1872 (Acts 1872 pps. 31, 32) an act was passed fixing the pay at $8 per day; next an act was passed in 1875 (Acts 1875 p. 52) fixing the pay at $6 per day; next the act of 1881 (Acts 1881 p. 517) was passed, fixing the pay at $6 which act has been operative ever since and will be until January 1, 1929; next the act of 1925 (Acts 1925 p. 284) was passed amending § 1 of the act of 1881, changing the rate of pay from $6 to $10 per day from andafter January 1, 1929.
The act of 1925 provides that from and after January 1, 1929, the pay of the members, etc., which indicates that it was not the intention of the legislature that that act should be effective until after January 1, 1929. It may be conceded that the amending act obliterates the section which it amends as soon as the amendment becomes effective, but the appellee claims that the amendatory act of 1925 is not yet in force and will not become effective until January 1, 1929. The appellant claims that the amendatory act of 1925 went into effect immediately upon the distribution of the acts by authority and his reason for such claim is, as he says, that the language of the enactment is, "be amended as follows." His claim is that the language of the enacting clause being in the present tense means that the act is to take effect immediately upon the distribution of the acts by authority. The appellant's contention is not sustained by any authority cited or brought to our attention.
Section 104 Burns 1926, § 1, Art. 4, Indiana Constitution, provides that no act shall take effect until the same shall have been published and circulated in the several counties of this state by authority, except in case *Page 460 of emergency, which emergency shall be declared in the preamble or in the body of the act.
It may be observed that this section of the Constitution does not provide that the act shall take effect when the same shall have been published and circulated in the several counties of this state by authority. The provision merely states that no act shall take effect until the same shall have been so published, circulated, etc. That does not mean that the act shall take effect when it has been so distributed and published. In this act the amending section itself provides that it shall take effect from January 1, 1929. The language is positive. On that subject therefore the publication and distribution of the act would not put it in force, but it would be an act which took effect at the time provided for in the act itself. No law shall be passed, the taking effect of which, shall be made to depend upon any authority, except as provided in the Constitution, Art. 1, § 25, Constitution of Indiana, § 77 Burns 1926.
That being the case the act of 1881, which was amended by the act of 1925, is still in force and has not been in any manner changed or affected by the passage of the act of 1925. When this act is so construed it does not conflict with the provisions of the Constitution of the State of Indiana.
The conclusion reached is that the act of 1881 fixing the compensation of members of the General Assembly was in force on January 17, 1927. It follows that § 6 of the act appropriating money to defray expenses of the seventy-fifth General Assembly which provides that the pay of the members of the seventy-fifth General Assembly shall be $10 per day, etc., is unconstitutional and void for the reason that at the time of its passage there was a valid law of the State of Indiana providing that the per diem of the members of the legislature should be $6 per day. And this § 6 which raised that amount *Page 461 from $6 to $10 per day is in violation of § 28, Art. 4, of the Constitution of the State of Indiana, § 131 Burns 1926. This view is supported by many authorities among which are the following:
In the case of Thiel v. Philadelphia (1914), 245 Pa. St. 406, 91 A. 490, the court said: "It is well settled that where the provisions of a revising statute are to take effect at a future period, or upon the happening of a certain contingency, or the doing of certain acts, and the statute contains a clause repealing former laws on the same subject, the repealing clause does not take effect until the provisions of the repealing act go into operation. Smith on Statutory Construction § 783; McArthur v. Franklin, 16 Ohio St. 193. . . . This court recognized the principle in Com. v. Heller, 219 Pa. 65, 67 A. 925."
In State v. Paul (1915), 87 Wash. 83, 151 P. 114, the court holds that an express repealing clause in a statute does not have any force prior in time to that of other provisions thereof, in the absence of clear expression therein to the contrary. In the early case of Spaulding v. Alford (1822), 1 Pick. 18 Mass. 33, Justice Wilde, speaking for the court touching the effect of a repealing clause, where the going into effect of the act involved was postponed to a future date, said: "All matters and clauses in the former act `which are contrary to the provisions of this act' are repealed. This act passed in February, 1819. And the plaintiff's counsel contend that the repealing clause took effect immediately, so that the plaintiff might lawfully practice in the interval between February and July, and would not come within the provisions of either act. There is however nothing inconsistent or contradictory in allowing the first act to operate till July, 1819, as to the licenses to practitioners."
In McArthur v. Franklin (1865), 16 Ohio St. 193. the *Page 462 court disposed of the question similarly presented by the following observations: "The point made is, that the new act took effect immediately on its passage, so as to repeal the section which it was designed to amend; but, that its operation for all other purposes was postponed to the first day of May following. The husband of the plaintiff died, it is said, between the 27th of March and the 1st of May. Hence, it is claimed that the plaintiff has not a right of dower, for the reason that there was no law in force giving dower at the date of her husband's death. The rule upon the question raised, is thus stated in Smith's commentaries on the construction of statutes: `Where the provisions of a revising statute are to take effect at a future period, and the statute contains a clause repealing the former statute upon the same subject, the repealing clause does not take effect until the other provisions of the repealing act come into operation.' Smith's Com. on Stat. Const. § 783, p. 902. We have no doubt this is the correct construction of the act now in question. The effect of the general statute prescribing when laws containing no special provision on the subject, shall go into operation, has the same effect upon the act in question, as if the latter had contained a provision prescribing the 1st of May as the time at which it was to take effect."
In Leyner v. State (1857), 8 Ind. 490, 492, it was said: "It is insisted that the repealing and saving clauses took effect upon the approval of the act in February, 1855. But this position is clearly untenable. It is true that the thirty-ninth section is in the present tense — that all acts are hereby repealed, and actions now pending are saved (Laws of 1855 pp. 222, 223); but this section must be taken in connection with the forty-second section, which expressly provides that the act shall take effect and be in force after the 12th of June next, Id. p. 223. The repealing and saving clauses, therefore, speak from *Page 463 that date, and not from the date of the approval."
In Grant v. City of Alpena (1895), 107 Mich. 335, 65 N.W. 230, by the defendant's charter, as it was prior to the amendment of 1891, the common council was authorized to appoint a marshal, and to remove him at pleasure. May 20, 1891, plaintiff was appointed marshal for the ensuing year, at a salary of $1,000. A new common council went into office early in August, under the amended charter of 1891, approved July 2, 1891, and ordered to take immediate effect, and August 17 declared the office of marshal vacant, and appointed a new man to fill the place. The amended charter provided for a board of police commissioners, to be appointed on the nomination of the mayor after the annual election in 1892, the first Monday in April and before May 1. To this board when so appointed was committed the appointment of a marshal and the control and management of the police department of the city. By this amendment the power to appoint a marshal was taken away from the common council and lodged in this board. The effect was either to abolish the office of marshal during the interim from July 2 to some time after April 1, when the board should be appointed or to leave the office in the control of council until that time. The result of either holding would be to defeat the plaintiff's claim. A law or any single provision thereof cannot begin to speak until it takes effect. Rice v.Ruddiman (1862), 10 Mich. 125; Price v. Hopkins (1865),13 Mich. 318. Had the act provided that it should go into effect at the election in April, 1892, clearly the old charter would have remained in force until then. The same rule applies to any provision of the act. The police department was left in the control of the council until transferred to the board of commissioners which could not be done until April, 1892.
In State, ex rel., v. Edwards (1896), 136 Mo. 360, *Page 464 38 S.W. 73, in discussing a law providing for certain tax assessments and which it was claimed was repealed by another statute, the court held the repealed statute was in force until the amendatory act took effect.
In Schneider v. Hussey (1881), 2 Idaho 8, 1 P. 343, it is held that the phrase, passage of an act, means when by law the act goes into effect. And that it will not be contended that one section of an act will take effect or be in force at any earlier date than the other sections unless the act itself shall so state. The court says: "The first section of the act of January 15, 1875, fixes the time when this act, among others, takes effect, which is July 1, 1875. It will not be contended that one section of an act will take effect or be in force at any earlier date than other sections unless the act itself shall so state. There is no clause in this act providing that this section shall take effect sooner than any other section of the same act. This section, therefore, and no clause of it, can take effect until the first day of July, 1875."
In Ex parte Ah Pah (1911), 34 Nev. 283, 119 P. 770, it was held that two acts passed on the same day, one providing that the act should not take effect until January 1, 1912, and the other fixing a date in 1911, the statute of 1912, did not supersede the statute of 1911 until January 1, 1912, the time fixed for its taking effect.
In Board of Education of Ogden City v. Hunter (1916),48 Utah 373, 159 P. 1019, it is held that where a statute is made effective only from a future date but in terms repeals the former law upon the subject, the repealing clause becomes effective only at the time the statute goes into effect. Where a statute repeals all former laws within its purview, the intention is obvious, and is readily recognized to sweep away all existing laws upon the subjects with which the repealing act deals. 1 Sutherland, Stat. Const. § 246. 1 Sutherland, Stat. Const. § 175, says: "Where the provisions of a revising statute are *Page 465 to take effect at a future period and the statute contains a clause repealing the former statute upon the same subject, the repealing clause will not take effect until the other provisions come into operation." In the same volume § 280, it is further said: "Statutes speak from the time they take effect, and from that time they have posteriority. If passed to take effect at a future day, they are to be construed, as a general rule, as if passed on that day and ordered to take immediate effect."
Section 182, R.C.L. p. 932, states the rule as follows:
"A repeal by implication, the same as any other repeal, does not take effect until the new statute goes into effect and becomes operative. So where an act does not go into operation until a future date, former statutes repealed thereby do not become repealed until such future date."
We conclude that no part of the act of 1925, was intended to be operative affirmatively until January 1, 1929. That date clearly relates to the pay for the speaker and the president as much as the pay of the members. Indeed, House Enrolled Act No. 1, in § 6 thereof, recognizes that the provision for the pay of the speaker and the president of the senate in the act of 1925, is not operative before January 1, 1929, and so it is provided in said § 6 that those officials, for acting as such "during the seventy-fifth General Assembly" shall each receive twelve ($12) dollars per day.
The judgment ought to be affirmed.
Myers, J., concurs.