Dissenting Opinion.
Dowling, J.I find myself unable to agree with the majority of the court in this case, and, in view of the importance of the issue presented, I will briefly state the reasons forfiny dissent from the prevailing opinion.
Two questions arise upon the record: (1) Did the act of March 1, 1895, (Acts 1895, p. 74) entitle the county auditor to special compensation for his services as a member of the board of review; and (2) if so, did the act of March 11, 1895 (Acts 1895, p. 319) deprive him of it, and require him to pay it into the county treasury ? After a careful examination of the subject, I have reached the conclusion that the auditor was not entitled to a per diem allowance for his services as a member of the board of review, and that, even if he had been, his right to receive it was taken away by the later statute. Stated more briefly, *628and in its practical form, the question for decision is this: Was the auditor of DeKalb county, in addition to the salary of $2,500 given him by §38 of the act of March 11, 1895, supra, entitled to an allowance of $3 per day for his services as a member of the said board ? The proper determination of the cause calls for a construction of §lli of the act of March 1, 1895, and a ruling upon the effect of the passage by the legislature of the act of March 11, 1895.
Whatever may be the rule in other states, or in other jurisdictions, this court is committed to the principle of the strict construction of statutes regulating the fees, salaries, and compensation of public officers. To entitle the officer to any fee, salary, or compensation, he must be able to put his finger upon the statute allowing it to him. Doubts are to be resolved in favor of the public and against the officer. Constructive services and constructive fees are unknown to the law of this State, and double compensation for official services is not to be tolerated.
It was said by Mitchell, J., in Board, etc., v. Gresham, 101 Ind. 53: “There can be no such thing in legal contemplation as an implied assumpsit on the part of a county with respect to the sfervices of county officers. In performing services for the county, the officer and the county stand related to each other precisely as an individual and the officer, the statute regulating fees being the measure of compensation for the one, and the extent of the liability of the other in each case. For services imposed by law upon the officer, which are not specially rendered for the municipality, as a prerequisite to the liability of the county' for said service, the officer must show: (1) A statute fixing the compensation for the service. (2) A law authorizing or making the county liable to pay for such services out of its treasury. It is of the highest concern to the public that this should be so; otherwise it would be within the power of one body of county officials to compensate the other county officers out of the public treasury, as a matter of grace and favor, *629without limit' or restraint) This principle has been recognized in this State from the beginning, and accordingly it .has invariably been held that official duties imposed upon a public officer, to which no compensation is attached, must be performed, as all official duties anciently were, gratuitously.”
In Noble v. Board, etc., 101 Ind. 127, this court again de-" dared that “It was decided as early as Rawley v. Board, etc., 2 Blackf. 355, and it has been the law ever since, that a county can not be liable for the fees and charges of officers without an express statute on the subject.”
Again, in Board, etc., v. Johnson, 127 Ind. 238, this court said: “It is well settled that a county auditor can recover only such compensation as the statute allows him, and that he is not entitled to recover compensation for duties performed by him, except where the statute so provides, although the services may be regarded by him and by the board of commissioners as ‘extra services’ entitling him to ‘extra’ compensation. We have so often discussed this general question that we decline to again discuss it. * * * Eor many years the General Assembly has clearly and unequivocally declared its policy to be that no constructive fees shall be allowed upon any pretext to county officers, and this court has uniformly given full effect to that policy.”
In determining the question presented by the record in this case, the decisions'of the courts of other states are entitled to no weight, unless made under statutes similar to our own. McFarlan v. State, 149 Ind. 149.
In this State, no person can hold more than one lucrative office at the same time, except as the Constitution expressly permits. Const., Art. 2, §9.
Guided by these rules, it would not seem to be a difficult task to decide the question whether the appellant, as auditor of DeKalb county, was entitled to $3 per day while acting as a member of the board of review, in addition to the salary of $2,500 per year allowed him as such auditor.
*6301. Such extra allowance is not given to him by the words of the statute. Section 114 of the act of March 1, 1895, on which appellant’s claim to the extra compensation is based, reads as follows: “There shall be an annual board for the review of all assessments and the equalization of the valuation of real and personal property in each county. Such board shall be composed of the county assessor, county auditor and county treasurer, and two freeholders to be appointed by the judge of the circuit court, who shall each be paid out of the county treasury, the sum of $3 for each and every day while they are acting as members of said board.” The assessor, auditor, and treasurer were already salaried officers of the county, whose duties, within proper constitutional limits,. the legislature at all times had the power to prescribe,' increase, or diminish in its discretion. There was no occasion to provide further compensation for them. But the two freeholders who were to be appointed members of the board could receive nothing for their services unless compensation was given to them by statute, and they were evidently the members of the board who were “each to be paid the sum of $3 for each and every day while they are acting as members of said board.” Not only is this the reasonable and natural construction of the language of the statute, but it is in harmony with the grammatical arrangement of its words. It will be observed that the section reads: “Such board shall be composed of the county assessor, county auditor and county treasurer, and two freeholders to be appointed by the judge of the circuit court, who shall each be paid out of the county treasury, the sum of $3 for each and every day,” etc. The interposition of the conjunction “and” between the words “county auditor” and “county treasurer” indicated that as to those officers the sentence was complete. The statute designated them as members of the board and nothing more. The subject of the succeeding clause, introduced by a second conjunction “and”, is two freeholders to be appointed by the *631judge of the circuit court, aud in the concluding part of the sentence, “who shall each be paid out of the county treasury, the sum of $3 for each and every day while they are acting as members of said board,” the relative pronoun “who” refers exclusively to the two' freeholders, and not to the three salaried county officers named in the first clause. If the legislature had intended that the special compensation of $3 per day should be paid to the three county officers, it would have said: Such board shall be composed of the county assessor, county auditor, county treasurer, and two freeholders, to be appointed by the judge of the circuit court, who shall each be paid out of the county treasury the sum of $3 for each and every day while they are acting as members of said board.
Resorting to previous acts of the legislature, as we have the right to do for the purpose of ascertaining the meaning of the present statute, we find that the revised statutes of 1881 made the board of commissioners of each county and four freeholders the county board of equalization. The duties of this board were similar to those now performed by the board of review. The law provided that the freeholders on the board should receive the sum of $2.50.per day for their services while actually employed; but no compensation was given to the members of the board of commissioners beyond the allowance made to them by law as such commissioners. §6391 R. S. 1881.
Again, while the board of review, as created by the act of March 6, 1891, was composed of the county assessor, county auditor, and county treasurer, alone, and its duties were precisely those prescribed for the board of review by the act of March 1, 1895, no compensation whatever beyond their salaries was given to the three officers constituting the board. Not until “two freeholders” were added to the board by the act of March 1, 1895, was any special-compensation for any of the members of the board mentioned. As these freeholders were not public officers under salary, they *632could, not be expected to serve without compensation. The assessor, auditor, and treasurer, each received a salary. Therefore no necessity existed for making to them a further allowance. When the act of March 1, 1895, was passed, they were performing all the duties of members of the board of review, under the act of 1891, without extra pay. Why should an addition to their compensation be made when their labors were divided and lightened by two freeholders who were placed on the board to assist them ?
The legislature had the right to impose upon the assessor, auditor, and treasurer new and additional duties, and to require these officers to perform them without compensation other than the salaries already allowed. Gilbert v. Board, etc., 8 Blackf. 81; Board, etc., v. Blake, 21 Ind. 32; Board, etc., v. Johnson, 31 Ind. 463 ; Turpen v. Board, etc., 7 Ind. 172; Noble v. Board, etc., 101 Ind. 127; Sudbury v. Board, etc., 157 Ind. 446.
County officers are in many cases required by statute to perform services unconnected with their usual official duties. The technical designation of the county clerk is “the clerk of the circuit court.” Const., Art. 6, §2. But in certain contingencies he must call special sessions of the board of commissioners. §7822 Burns 1901. He acts as clerk of the board of canva'ssers of elections. '§6271, supra. The clerk, auditor, and recorder are made the trustees for the county library. §4965, supra. The clerk, sheriff, and auditor may, under some circumstances, appoint a special judge of the circuit court. §§1444, 1447, supra. The county auditor may participate in the election by the township trustees of the county superintendent, and give the casting vote in case of a tie. §5900, supra. The auditor must act as the clerk of the board of commissioners. §7825, supra. Yet in none of these cases is special compensation made to any of these officers, and in all of them the officer acts in his official character as clerluof the circuit court, sheriff, recorder, or as county auditor. The duty is made an in*633cident of the office. The assessor, auditor, and treasurer were by the act of March 1,1895, made members of the board of review ex officio, and the services to be performed by them were properly added to their existing official duties.
Referring once more to the words of the act of March 1, '1895, creating the hoard of review, it will be observed that the assessor, auditor, and treasurer are not appointed or elected members of that body by the executive^ by the legislature, hy the judge of the circuit court, or other public officer, or by the electors of the county. Section 114 provides that the two freeholders shall be appointed by the judge of the circuit court. The three county officers are brought into the hoard and subjected to the provisions of the act by the words: “Such board shall be composed of the county assessor, county auditor and county treasurer, and two freeholders to be appointed by the judge of the circuit court,” etc. None of the duties prescribed by §114 of the act of 1895 was inconsistent with, or essentially different from, the duties required by existing statutes to be performed by the three county officers who were made ex officio members of the board of review. Each of them was directly connected with the general revenue system of the county and State. By virtue of his office, each possessed special facilities for the discharge of those public duties which were committed to the board of review. They were the only persons having official knowledge of the subjects to be considered by such board. Elad that board been composed of persons other than the assessor, auditor, and treasurer, it could have done nothing without the attendance of these public officers, and the exhibition and explanation by them of the books, papers, and records of their offices. Such attendance could certainly have been exacted as a part of the duty of these officers under the acts in force in 1891 and 1895.
2. If the act of March 1, 1895, gave to the auditor the special compensation of $3 per day while acting as a member of the board of review, that compensation was taken *634away by the act of March 11, 1895. At' the same session of the General Assembly which passed the act of March 1, 1895, creating' the board of review, and ten days later, another act was passed entitled, “An act fixing the compensation, and prescribing the duties of certain state and county officers, fixing certain fees to be taxed in the offices and the salaries of officers therein named,” etc. Acts 1895, p. 319. Section 116 of this act was in these words: “Where the auditor is required by law to perform any service not' specially mentioned in this act, for which services the auditor shall be entitled under the law existing before the taking effect of this act, to tax, charge or receive any fee or compensation in his own favor for such service, he shall hereafter tax the amount on account of such service in favor of the county, and the same shall be collected and paid into the county treasury, as elsewhere provided in this act.” The terms of this section are sweeping and admit' of no exception. Not only does it require all “fees” for services performed by the auditor to be taxed in favor of the county and paid into its treasury, but it emphatically declares that any compensation for “any service not specially mentioned in this act” which “the auditor shall be entitled under the law existing before the faking effect of this act, to * "" " receive * * * in his own favor for such service, he shall hereafter tax the amount on account of such service in favor of the county,” etc.
Even if the construction I have placed upon §114 of the act of March 1, 1895, is erroneous, and if the auditor, under the act of March 1, 1895, was entitled to receive as compensation for services as a member of the board of review the sum of $3 per day while acting as such member, then the case falls precisely within the terms of §116 of the fee and salary law of March 11, 1895. By the act of March 1, 1895, amending the act creating the board of review, the county auditor was required to perform services not specially mentioned in the fee and salary act of March *63511, 1895. That special service was to act as a member of the board of review not more than thirty days in any year. If it be true that as such member the auditor was entitled, under the existing law of March 1, 1895, to the compensation of $3 per day for that service, then by the express terms of the act of March 11, 1895, that compensation belonged not to him, but to the county. The two acts were passed at the same session of the General Assembly. If the first gives special compensation to the auditor, the second denies it. There is, then, an irx’econcilable conflict between them, and the later act must prevail. Shea v. City of Muncie, 148 Ind. 14.
Section 21 of the act of March 11, 1895, deelax’es that the county officers named therein, — and the county auditor is one of them, — -“shall be entitled to receive for their services the compensation specified in this act * * * and they shall receive no other coxnpensation whatever. Section 38 of the act provides that the auditor of DeKalb county shall have an annual salary of $2,500. Section 138 repeals all laws and parts of laws in conflict with the act of March 11, 1895, to the extent of such conflict. The act of March 1, 1895, if it gave to the auditor any compensation for special services not mentioned in the fee and salary act, and thereby conflicted with the later act, was, to that extent, repealed.
The act of March 11, 1895, applies not only to the services, fees, salary, and compensation mentioned in it, but it is expressly extended to “any services not specially mentioned in this act, for which services the auditor shall be entitled under the law existing before the taking effect of this act, to tax, charge or x-eceive any fee or compensation.” Language could not be plainer. The evident intention of the legislature was to make the salary of $2,500, allowed the auditor of DeKalb county, the only compensation to which he should be entitled for any and every kind of official service performed by him. This interpretation of these *636statutes is in harmony with the established policy of the State, which seeks to keep exactions for official services within reasonable bounds, by cutting off extra and specific allowances, and granting to the auditor and other officers salaries carefully adjusted according to the constitutional requirement.
No detriment to the public interests could result from the performance of the additional duties imposed upon the county auditor as a member of the board of review, for the reason that, if that service required his absence from his office, all his other duties as auditor could be discharged by a deputy.
If an attempt is made to justify the allowance of the per diem to the auditor on the ground that membership of the board of review constitutes a separate office, then it may be suggested that the provisions of the Constitution forbid the auditor from holding two lucrative offices at the same time. Const., Art. 2, §9; State, ex rel., v. Kirk, 44 Ind. 401, 15 Am. Rep. 239; Chambers v. State, ex rel., 127 Ind. 365, 11 L. R. A. 613.
Without pursuing this subject further, I think it clearly appears that the appellant was not entitled to the $3 per diem claimed by him, and that the judgment of the DeKalb circuit court should be affirmed.
Monks, J., concurs in dissenting opinion.