State ex rel. Board of Commissioners v. Boice

On Petition for a Rehearing.

Hackney, J. —

The attorney-general’s able brief in support of the appellant’s petition for a rehearing has been devoted chiefly to the proposition that this court should uphold the fee and salary law of 1891 by resort to the engrossed bill to supply the omission of a salary for the *513treasurer of Shelby county. It is expressly conceded by him that upon a consideration alone of the enrolled act the law is not valid for the reasons stated in the original opinion. It is conceded also, that under the decisions of this and many other courts, there is no resort to the engrossed bill for the purpose of disclosing any discrepancy or irregularity which would affect the validity of an act. But, it is urged with much force and ability, that such resort may be had to support and guard from attack an act of the Legislature. As early as the case of Evans v. Brown, 30 Ind. 514, the correct rule, and the reason therefor, have been fully determined, and have since been approved so frequently as, in our opinion, to preclude reasonable doubt of their correctness. Bender v. State, 53 Ind. 254; Edgar v. Board, etc., 70 Ind. 331; Board, etc., v. Burford, 93 Ind. 383; Stout v. Board, etc., 107 Ind. 343; State, ex rel., v. Denny, 118 Ind. 449.

In the case first cited, the holding which has been approved in those last cited, it was held that the authentication of the presiding officers of the Legislature to the enrolled act was conclusive evidence of the proper enactment of the law, and that the courts and the public could not look elsewhere in denial of that authentication. The necessity for a definite rule was made manifest by the requirement that the courts and the people were held to know the law, and that if this knowledge should be made to depend upon the varying impressions and decisions necessarily arising from a resort to contradictory records, and with equal propriety to the hastily prepared journals or the treacherous memory of a member, the requirement would involve endless confusion and hardship. It was held that to avoid such confusion and to establish a definite rule, the framers of the con*514stitution required the signatures of the presiding officers to the enrolled act.

The learned judge who wrote that opinion said:

"Courts should be very careful not to invade the authority of the Legislature. Nor should anxiety to maintain the constitution, laudable as that must ever be esteemed, lessen their caution in that particular; for if they overstep the authority which belongs to them, and assume that which pertains to the Legislature, they violate the very constitution which they thereby seek to preserve and maintain.”

If the object of the constitutional requirement, that the presiding officers should sign the bill passed, was to give the authenticity necessary to a definite rule, then the same reason must exist for refusing to go behind the enrolled act for the purpose of supporting it as for its destruction. In either event, to go back of the constitutional authentication would be unauthorized.

Of course we do not venture an opinion as to the power of the courts to consider any act or circumstance following the regular signing of the bill as passed, which act or circumstance may be claimed to have despoiled the bill as passed and signed. The spoliation of an act, the act not being complete until signed, would raise a very different question from that here presented. Here there is nothing of which the court can take judicial cognizance that there was such a spoliation.

We did not consider this question on the original hearing, for the reason that counsel, then representing the appellant, expressly waived the question. They said: "The enrolled bill, as signed by the speaker of the House of Representatives, the president of the Senate, and approved by the Governor of the State, is conclusive evidence of what was enacted by the Legislature. This is not only the doctrine of our own court, but also that of *515the United States, where an entire and very important section was left out of the enrolled tariff bill, though embraced in the engrossed bill. Field v. Clark, 143 U. S. 649,” and citing the cases to which we have already made reference.

The complication existing in the pending settlements of certain county treasurers with the auditor of State, and possible embarrassment of such settlements in the future, induce us to state more fully our position in the original opinion as to the power of the appellee to retain the fees collected in the course of his term of office and for which the appellant sued.

The allegation of the complaint was that such fees were “taxed, collected and received by him as such treasurer prior to the first Monday of December, 1893, and during the quarter ending that day.” While impressed with the improbability that $417.87 could have been collected in the fees of the office for the period mentioned, if taxed under the act of 1891, we nevertheless felt constrained to hold that such was the effect of the above quoted allegation. Of course if they had been collected from a taxation thereof, under the act of 1879, they were not legitimate, and we could not hold that they belonged to the county unless they were withheld by him from the taxes collected for the county. Treating the fees sued for as having been taxed pursuant to the act of 1891, they would have belonged to the “treasurer’s fund” but for the invalidity of the act. As to clerks, sheriffs, auditors and recorders the provisions of the' act relating to their offices severally, expressly deny the ownership of the fees by the officers, and declare such ownership to be in the counties.

No similar provision is made as to treasurers. If there had been, we would have doubts of the correctness of the original opinion. While it is provided by section 125 *516(Acts 1891, p. 450), that the treasurer and other officers named shall pay the fees collected by them into the treasury, those collected by him to constitute a “treasurer’s fund,’’ it is not provided, as in the case of the clerks, sheriffs and recorders, that the payment of his salary shall in any manner depend upon the amount received and paid into said fund by him. See section 127, Acts 1891, p. 451.

The salary of the treasurer was payable from any moneys in the treasury not otherwise appropriated (section 127), though we have no doubt it was contemplated that the sums, so directed to be by him paid into the county treasury, were to be considered as a part of the sum payable upon his compensation, otherwise the fund would have accumulated to no purpose. Bearing in mind that the fees were not, as in other cases, the property of the county, they stood, upon the legislative theory of the act, as a credit upon the officer’s salary.

The holdings of this court, in Henderson v. State, ex rel., 137 Ind. 552, and State, ex rel., v. Krost, 140 Ind. 41, were that the act in question included a complete system of fees as between the office and the public; that the salary provisions of the act should be considered in their application to the various classes of officers severally; that in either respect, considered apart from the other features of the law, the provisions could be considered and upheld or defeated without affecting other elements of the law, and that the repealing clause of the act was not defeated by the partial invalidity of the act.

Applying these holdings to the present case we find that we may consider the treasurer’s salary features of the law as if they stood apart from all other provisions. So considering it, we have no doubt of the design to make a system of treasurer’s salaries complete in all of *517its parts; that it was not intended to require such officers to serve without compensation; that the principal compensation of treasurers was not to be realized in fees but was to be paid from county funds, since the fees provided by the act were necessarily small; that the requirement that the fees should be credited to the fund was an essential part of the entire system, and it could not have been contemplated that all other features of the system could fail and that feature remain in force. Therefore, having found that the principal features of the treasurer’s salary system were unconstitutional, necessarily that system, in its entirety, failed and with it the requirement that he should pay the fees collected by him into the “treasurer’s fund.”

By section 135 of the act, it is provided that he shall not receive both fees and salary. If, therefore, he chooses to keep the fees he is probably estopped to claim hereafter the payment of a salary, and, since the law of 1879 is repealed, we can not hold that fees may be collected or held as compensation under that law.

The inquiry may arise as to the source of compensation for the treasurer who may have paid into the “treasurer’s fund” the fees collected by him, but of this question we venture to offer no opinion, but we may suggest, that if the county board does not make the payment the only remedy is probably with the Legislature.

The petition for a rehearing is overruled.

Filed April 11, 1895.