CONCURRING OPINION. I concur in the result reached by the court for the reason hereinafter given.
The exact provisions of the Constitution and statutes which present the question here considered, are as follows:
Constitution, Art. 4, § 29, § 132 Burns 1926: "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. . . ."
Acts 1881 p. 517, § 1, § 7561 Burns 1914:
"Sec. 1. . . . the pay of the members of the General Assembly shall be $6.00 per day. . . ."
Acts 1925 p. 284, § 8080 Burns 1926: "Section 1. . . . That Section one of the above entitled act (Act 1881 p. 517) 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. . . ."
Acts 1927, ch. 1 (House Bill No. 1): "Section 6. That the pay of the members of the 75th General Assembly shall be ten dollars ($10.00) per day. . . ."
The appellant contends that when § 6, House Bill No. 1 was passed, § 1 of the Act of 1881 was not in force, having been entirely superseded and expunged by the amendatory act of 1925 which went into effect and operation on April 25, 1925; and that § 6 of House Bill No. 1 does not increase the compensation as prohibited by the Constitution, since at the time of its passage there was no pay *Page 450 "fixed by law," and it became necessary for the general assembly to fix the pay of its members. This view is expressed at length in the main opinion.
The appellee contends that the act of 1925 is now only a "potential" law and will not become operative as an amendment of the act of 1881 until January 1, 1929, and that when § 6, House Bill No. 1 of 1927 was passed, § 1 of the act of 1881 was still in force and that therefore an unconstitutional increase of salary was attempted; and also that even if § 1 of the act of 1881 had ceased to exist, § 6, House Bill No. 1 would still be unconstitutional because the $10 pay which it provides is an "increase" over the last pay provided for, which was the $6 pay in the act of 1881. This view is expressed at length in the dissenting opinion.
Erudite reasoning, close distinctions and lengthy arguments both orally and by briefs, have marked the progress of this appeal, and an examination of the principal and dissenting opinions discloses that a close and difficult question of statutory construction has been presented. An open-minded examination of both of these able opinions also shows that this is not a case where it can be said that § 6, House Bill No. 1 of the 1927 General Assembly is clearly, plainly and undoubtedly in contravention of the Constitution and invalid. It must be admitted that there is some doubt about the proper construction of these three acts when four of the judges of this court are evenly divided in their opinions, but under the well known rules of law laid down in the cases hereinafter cited all doubts must be resolved in favor of a laws validity and if possible an interpretation will be adopted which will prevent a conflict between different laws.
The courts approach the grave and delicate duty of deciding constitutional questions with great deliberation and caution, giving to them the most careful and serious *Page 451 consideration, State v. Hogreiver (1899), 152 Ind. 652, 53 N.E. 921, 45 L.R.A. 504; Dartmouth College v. Woodward (1819), 4 Wheat. (U.S.) 518, 4 U.S. (Law Ed.) 629; Nicol v.Ames (1898), 173 U.S. 509, 43 U.S. (Law Ed.) 786, and are reluctant to strike down acts of the legislature as unconstitutional. Thorlton v. Guirl Drainage Co. (1916),184 Ind. 637, 112 N.E. 5.
This court, in Carr v. State (1911), 175 Ind. 241, 94 N.E. 1071, said: "The power given to courts to overthrow an act of the legislature is the highest and most solemn function with which they are vested, and it is to be exercised only under the compulsion of the clearest and most positive conviction that some constitutional provision has been violated by the lawmaking body in the enactment of the law assailed"; and in State, ex rel., v. Roby (1895), 142 Ind. 168, 41 N.E. 145, 51 Am. St. 174, note 33 L.R.A. 213, said: "To declare an act void for unconstitutionality in a doubtful case through a mistake of a court of last resort would have the effect not only of paralyzing one of the co-ordinate departments of the State government, but it would be a usurpation of power by the court, a power withheld from it by the people in the constitution."
A statute comes before the courts sustained and authenticated by the sanction and approval of a great co-ordinate department of government, hence there is a strong presumption in its favor of its validity, and this presumption has been recognized in a long series of cases in practically every court of the land. 6 R.C.L. 97; Koplovitz v. Jensen (1926), 197 Ind. 475, 151 N.E. 390;McPherson v. State (1909), 174 Ind. 60, 90 N.E. 610, 31 L.R.A. (N.S.) 188; State v. Gerhardt (1896), 145 Ind. 439, 44 N.E. 469, 33 L.R.A. 313; State, ex rel., v. Roby, supra;State v. Hogreiver, supra.
A decent respect for the wisdom, integrity and patriotism of the legislative body which enacts a law requires *Page 452 this presumption in favor of its validity until the contrary is shown beyond reasonable doubt, and therefore if there is any reasonable doubt or hesitation in the mind of the court as to the validity of the statute, it must be resolved in favor of the legislature and unless the invalidity appears clearly, palpably and plainly, the courts should not exercise their high function and authority to pronounce legislation to be contrary to the Constitution. State v. Hogreiver, supra; McPherson v. State,supra; State, ex rel., v. Roby, supra; Robinson, Treasurer, v.Schenck (1885), 102 Ind. 307, 1 N.E. 698; Bush v. City ofIndianapolis (1889), 120 Ind. 476, 22 N.E. 476; State v.Louisville, etc. R. Co. (1911), 177 Ind. 553, 96 N.E. 340, Ann. Cas. 1914D 1284; Henderson, Auditor, v. State, ex rel. (1894), 137 Ind. 552, 36 N.E. 257, 24 L.R.A. 469; Carr v.State, supra; Fletcher v. Peck (1810), 6 Cranch (U.S.) 87, 3 Law Ed. 162; Munn v. Illinois (1876), 94 U.S. 113, 24 Law Ed. 77; Sinking-Fund Cases (1878), 99 U.S. 700, 25 Law Ed. 496;Henderson Bridge Co. v. Henderson City (1898), 173 U.S. 592, 43 Law Ed. 823; Fairbank v. United States (1900),181 U.S. 283, 45 Law Ed. 862. This has been the uniform conclusion of the Supreme Court of the United States as is shown by the following brief quotations from opinions by Chief Justice Marshall, Chief Justice Waite and Justice Harlan, respectively: "The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." Fletcher v. Peck, supra. "Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained." Munn v. Illinois, supra. "All doubt as to the validity of legislative enactments must be resolved, if possible, in favor of the binding force of *Page 453 such enactments." Henderson Bridge Co. v. Henderson, City,supra.
The courts will not resort to construction for the purpose of giving acts of the legislature such an interpretation as will show a conflict between them, or any of them, and the Constitution; but where statutes are capable of a construction that will make them constitutional they will be so construed, and their validity upheld, on the theory that the legislature intended to enact a constitutional law. Thorlton v. GuirlDrainage Co., supra; School Town of Andrews v. Heiney (1912),178 Ind. 1, 98 N.E. 628, 43 L.R.A. (N.S.) 1023, Ann. Cas. 1915B 1136; Crittenberger, Auditor, v. State, etc., Trust Co. (1920), 189 Ind. 411, 127 N.E. 552; Cincinnati, etc., R. Co. v.McCullom (1915), 183 Ind. 556, 109 N.E. 206, Ann Cas. 1917E 1165; State v. Louisville, etc., R. Co., supra.
From the foregoing review of decisions it is clear that any doubt as to the construction of the three acts in question, should be so resolved as to uphold if possible the validity and constitutionality of all of them, and since the act of 1927 reasonably can be construed to be constitutional it should be so held. I accordingly concur in the decision of the court that the act in question is valid, and that the trial court committed error in sustaining appellee's demurrer to appellant's complaint, and that the judgment should therefore be reversed.