In attempting to secure a reversal of the judgment of the court below, appellant contends (1) that the act of February 28, 1897 and the amendment of 1901 (Acts 1897, p. 90, Acts 1901, p. 21, §3717 et seq. Burns 1901), providing for a metropolitan police force in certain cities of the State, are unconstitutional; and (2) that said
1. 2. It-is argued that the act of 1897 is invalid because it places the burden of supporting the police system upon the municipality, without giving it any control over the expenditures therefor. The case of City of Evansville v. State, ex rel. (1889), 118 Ind. 426, 4 L. R. A. 93, is cited in support of this contention. In that case, however, the fact was that the legislature had provided for the creation of a single board, to which it attempted to give the control of the city’s police and fire departments, and the act, taken as a whole, was adjudged invalid, as an unwarranted interference with the right of local self-government. The statute before us is quite different in principle, since it has relation only to the department of police. The mainteand towns are largely subject to legislative control. As the commonwealth is a unit in respect to its interest in such matters, the regulation thereof is a proper subject of legislation, and whether cities and towns in respect to these matters shall have a centralized or de-centralized form of government is a political question with which the courts have nothing to do. Matters of general interest are not necessarily required to be submitted to the judgment and discretion of the people of the locality. So far as principle is concerned, it is no objection that the State, while imposing upon cities and towns the burden of supporting their police organizations, designates its own agencies to make its plan efficient. The essential elements of what is'known as the metropolitan police system in the government of municipalities have been so often vindicated as against constitutional objections that the questions should now be considered at rest. State, ex
3. It is further contended that the act of 1897 amounts to an unlawful attempt to delegate a legislative power, in that, within maximum and minimum limits, it authorizes the Governor to determine the salaries of the police commissioners, and also, within fixed limits, authorizes the latter to determine the compensation of the officers of the police force. It must, of course, be admitted that the legislature may with propriety fix the salary which attaches to a public office, but whether a constitution contains an express division of the powers of government, or whether the division is to be implied from the framework of the instrument, we are of opinion that the fixing of the compensation of a public officer is not so inherently of a legislative character that it may not be delegated. The contention of counsel for appellant involves a misapprehension of the breadth of the grant to the General Assembly of power to enact laws.
Authority is not wanting on the precise question in hand. In Gooch v. Exeter (1900), 70 N. H. 413, 48 Atl. 1100, 85 Am. St. 637, the court had before it the question of the validity of a statute which vested in a hoard of police commissioners, the members of which were appointed by the governor, the right to appoint police officers. In the course of the opinion the court said: “The pay of an officer is
It appears to us that it was wholly appropriate for the General Assembly to fix maximum and minimum limits of salaries of the various officers who were to be employed under the law in the cities of the State, leaving it to other agencies to exercise a degree of discretion in determining what salaries should, from time to time/ obtain in the various cities to which the act applies.
We do not regard the decisions on which counsel for appellant rely as in point on the question in hand. The cases of State, ex rel., v. Rogers (1904), 71 Ohio St. 203, 73 N. E. 461, and Commonwealth v. Addams (1894), 95 Ky. 558, 26 S. W. 581, are ruled by the fact that it was a" matter of constitutional requirement that the legislature fix the compensation of public officers. Smith v. Strother (1885), 68 Cal. 194, 8 Pac. 852, involved an attempted delegation to a court of the power to fix the salary of an officer, and, as the supreme court of that state construed this to be an attempted grant to the tribunal itself, it is obvious that a very different consideration was involved, since courts, as such, can only exercise judicial powers. Ex parte Griffiths (1889), 118 Ind. 83, 3 L. R. A. 398, 10 Am. St. 107. The case of Smith v. Strother, supra, should be considered in the light of McAllister v. Hamlin (1890), 83 Cal. 361, 23 Pac. 357.
6. Provisions may be found in the acts of the first session of the General Assembly after the adoption of the Constitution delegating to the Governor, or to other agencies, the discretionary power to fix the compensation of officers and employes, and this has since been a common practice, particularly in the government
7. Taking up the contention that said law is repealed by the act concerning municipal corporations passed in 1905 (Acts 1905, p. 219, §3462 et seq. Burns 1905), we may first briefly indicate the pertinent facts concerning the latter enactment. Section forty-two of the act (§3466 Burns 1905) classifies all of the cities of the State into five classes. By this section, cities having a population of 10,000 and less than 20,000, according to the last preceding United State census, are denominated cities of the fourth class. By section 158 (§3582 Burns 1905) provision is made for a department of public safety. Then follows the proviso that in cities of the third class, on the adoption of an ordinance therefor, and in cities of the fourth' class, without such ordinances, the board of public works shall exercise the powers and perform the duties required of the board of public safety. The larger part of the remaining provisions of section 158 deal with the powers of the board of public safety, and this may be said of section 159 (§3583 Burns 1905). It is also to be noted that the latter section makes express mention of cities of the fourth class. Section 158 supra, closes with the following proviso: “And, provided, further, that in any city in which a board of metropolitan police commission is now or may hereafter be established by law such board of metropolitan police commissioners shall have full control and management of the police officers of
In taking up the question as to the effect of the proviso, it will be noticed that it is provided that as to any city in which a board of metropolitan police commissioners now exists such commissioners shall have full control and management of the police officers of such city, in accordance with the laws providing for the creation of such boards and prescribing the duties of such police commissioners, and then follows an interpretation clause.
8. 9.
11. In dealing with inconsistencies occasioned by amendments, it is always proper to judge the question of construction in the light of the legislative journals. In Edger v. Board, etc. (1880), 70 Ind. 331, 338, this court said: “It has never been held by this court, that for the purpose of construction or interpretation, and with the view of ascertaining the legislative will and intention in the enactment of a law, the courts may not properly resort to the journals of the two legislative bodies to learn therefrom the history of the law in question, from its first introduction as a bill until its final passage and approval. Where, as in this case, a statute has been enacted, which is susceptible of several widely differing constructions, we know of no better means of ascertaining the will and intention of the legislature, than that which is afforded, in this case, by the history of the statute, as found in the journals of the two legislative bodies.” See, also, Walter A. Wood, etc., Mach. Co. v. Caldwell (1876), 54 Ind. 270, 23 Am. Rep. 641; Stout v. Board, etc. (1886), 107 Ind. 343; Blake v. National Banks (1874), 23 Wall. 307, 23 L. Ed. 119; Buttfield v. Stranahan (1904), 192 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 525; Simpson v. Story (1888), 145 Mass. 497, 14 N. E. 641, 1 Am. St. 480, and cases cited; Baker v. Payne (1892),
12. We may also refer to the fact that the Governor of the State, who is charged with the enforcement of the law, has throughout treated the metropolitan police law as in force in all of the cities to which the act of 1897 relates, and when to this is added the consideration that to unsettle this construction would be likely to prejudice many people of the State who have acted upon it, we have a case in which it is clear, if there be room for substantial doubt, that the leaning should be in favor of the interpretation of the executive department. Bate Refrigerating Co. v. Sulzberger (1895), 157 U. S. 1, 34, 15 Sup. Ct. 508, 39 L. Ed. 601; Hewitt v. Schultz (1901), 180 U. S. 139, 156, 21 Sup. Ct. 309, 45 L. Ed. 463. This, we may observe, was the course which was adopted in Blake v. National Bardes, supra, where repugnant matter had been introduced into an act by an amendment.
13. Counsel for appellant bring forward the old doctrine, which has been usually applied in cases of repugnancy as between a proviso and the matter which precedes it, that it is the last word of the legislature which is to govern, but in this case counsel seek, by invoking this principle, to destroy the proviso, by reason of the reference to cities of the fourth class in section 159.
14. Counsel for appellant also refer to the general repealing clause of the act of 1905, supra, in support of their contention that the act of 1897, supra, is repealed, but such repealing clause, being general, like the schedules or the definitions of words which long enactments frequently contain, ought not to be treated as out of accord with that which is specific and controlling in the expression of the intent. Such clauses will be restrained, where necessary, to avoid this result. In other words, a repealing clause, like any other provision of the statute, is to be subjected to rules of construction, and the intent will prevail over the literal import of the words. Smith v. People (1872), 47 N. Y. 330; State, ex rel., v. Moorhouse (1896), 5 N. Dak. 406, 67 N. W. 140; Home Bldg., etc., Assn. v. Nolan (1898), 21 Mont. 205, 53 Pac. 738; 1 Lewis’s Sutherland, Stat. Constr. (2d ed.), §293. It is our conclusion that appellant’s contention that the act of 1897, supra, is repealed has not been maintained.
The judgment is affirmed.