There has been no answer or explanation made concerning the numerous well decided authorities in this state construing § 1 of Article 3 of the Constitution of Indiana to permit, in certain instances, one department of state government to exercise "the functions of another."1 It was never intended that there be an absolute and exclusive separation of the functions of government, and until this appeal was decided, the authorities so held.
It is not to be presumed that this court, by its own order book entries, would violate § 1 of Article 3 of the Constitution. Yet the precedent of the majority opinion would so indicate. The fixing of the salary of a public officer is a legislative function. 46 C.J. 1018, § 249; 43 Am. Jur. 138, § 345; Arnett v. State, ex rel. (1907), 168 Ind. 180, 80 N.E. 153, 8 L.R.A. (N.S.) 1192. Under Chapter 38 of the 1945 Acts (§§ 13-1401 to 13-1406) Burns' 1942 Replacement, (Supp.), the office of Public Defender was created and provision made for the operation of the office. By § 13-1404, Burns' 1942 Replacement, (Supp.), "The public defender shall be paid an annual salary to be fixed by the Supreme Court of this state, not to exceed five thousand dollars ($5,000) per year. . . ." Pursuant to this section *Page 492 this court has twice fixed the salary of the Public Defender. Thus we have the highest court of the judicial department of this state exercising a function of the legislative department, but it is a function which may be delegated under the rule that the prohibition of § 1 of Article 3 of the Constitution only extends to necessary and exclusive functions of the three separate departments.
It has now been brought to the attention of the court that the relator Miser resigned as a member of the House of Representatives, which was admitted in the pleadings in the trial court. The appellee contends that the relator Miser had no right to resign as a member of the House of Representatives of the General Assembly. However, it has always been recognized in this state that a public officer had a right to resign. The State exrel. Cornwell v. Allen (1863), 21 Ind. 516; State ex rel. v.Huff (1909), 172 Ind. 1, 87 N.E. 141. The General Assembly recognized this right and practice by Chapter 119 of the 1945 Acts (§ 49-206a, Burns' 1933, Supp.) regulating the right of those in the public service, whether officers, servants or employees, to withdraw a written resignation. The Constitution places no unlimited restriction on the right of a member of the General Assembly to resign, but it does contemplate such a right in instances not prohibited. "No Senator or Representative shall, during the term for which he may have been elected, be eligible to any office, the election to which is vested in the General Assembly; nor shall he be appointed to any civil office of profit, which shall have been created, or the emoluments of which shall have been increased, during such term; but this latter provision shall not be construed to apply to any office elective by the People." Section 30, Article 4, Constitution of *Page 493 Indiana. If it had been intended that a State Representative must always be a State Representative during the term to which he was elected, the constitutional convention could have said so in few words. It did make judicial officers ineligible for other state offices in clear and simple terms by Section 16 of Article 7. "No person elected to any judicial office, shall, during the term for which he shall have been elected, be eligible to any office of trust or profit, under the State, other than a judicial office." The relator Miser had the right to resign his office as a State Representative.
With the right of the relator Miser to resign his position established, I am unable to see why he should be forced to institute another lawsuit in the Superior Court of Marion County under § 4-1501, Burns' 1946 Replacement (Acts 1889, ch. 128, § 1, p. 265; 1895, ch. 112, § 1, p. 231).
The rights, powers and duties of the Auditor of State can not exceed those granted by the Constitution, which in his particular office must be determined by legislative enactment.2 The Constitution of 1851 makes it clear that he is not given any general grant of power or authority, and he is in the same position as a statutory officer who must find his authority within the statute under which he operates, or he has no such authority. Sherrick v. State (1906), 167 Ind. 345, 79 N.E. 193; Branham v. Lange (1861), 16 Ind. 497; Dailey v.State, ex rel. (1909), 171 Ind. 646, 87 N.E. 4. The Auditor of State acts under the law and not above the law. *Page 494
I can not agree to a construction of § 49-1809, Burns' 1933 (Acts 1859, ch. 138, § 7, p. 227) which authorizes the auditor to exercise an arbitrary and capricious discretion in the allowance or disallowance of claims against the state. The auditor is not a court nor a quasi judicial officer. He is bound by the law the same as any other public official, and if he acts in violation of the law, he does so at his peril. In this case and all during the controversy the facts have been admitted, and when the auditor acts in violation of the law, his action is contrary to law, which, under the many decisions of this court with reference to administrative boards, bureaus, and commissions, makes his action arbitrary and capricious.
By Clause 4 of § 49-1702, Burns' 1933 (1 R.S. 1852, ch. 7, § 2, p. 146), the auditor is required to "Examine, adjust and settle the accounts of all public debtors, for debts due the state treasury, and require all such persons, or their legal representatives, who may be indebted to the state for moneys received or otherwise, and who shall not have accounted therefor, to settle their accounts." This statutory mandate required the auditor to set off the prepayment of salary made to the relator as a member of the House of Representatives. The difference, which would be determined by mathematical computation prorating the salary of the legislator, should have been paid by the auditor to him.
When writs of mandate in the circuit and superior courts of this state were abolished, the causes of action theretofore remedied by writs of mandate were remedied by means of a complaint and summons, "as other civil actions." By Chapter 223 of the 1911 Acts, the relator was not required to demand in his complaint the exact amount due under the law and facts, and the relator was entitled "to such relief as the facts and *Page 495 law grant." State, ex rel. v. Board of Finance, etc. (1914),181 Ind. 365, 373, 104 N.E. 756. Section 4 of said Act (§ 3-2204, Burns' 1946 Replacement) makes this construction imperative by providing, ". . . if the finding and judgments be for the plaintiff, the court shall grant and adjudge to the plaintiff such relief, and such only, as he may be entitled to under the law and facts in such action, together with damages as in actions for false returns, and costs shall be awarded as the court may direct." The dictum to the contrary in State, ex rel. v.Foland, Auditor (1921), 191 Ind. 342, 132 N.E. 674, is based upon cases which were superseded by State, ex rel. v. Board ofFinance, etc., supra, and totally ignores the plain provision of the statute, which established in Indiana the rule generally held that "the fact that the application or petition for mandamus prays for more relief than it shows the petitioner is entitled to is not a fatal defect and does not preclude the granting of the relief to which the relator is entitled under the facts stated, and established by evidence, although it is of course essential that the relief granted, whatever it may be, is within the prayer for relief. . . ." 38 C.J. 882, § 597.
The judgments of the trial court should have been reversed.
NOTE. — Reported in 81 N.E.2d 850.
1 "The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." Indiana Constitution, art. 3, § 1.
2 "There shall be elected, by the voters of the State, a Secretary, an Auditor and a Treasurer of State, who shall, severally, hold their offices for two years. They shall performsuch duties as may be enjoined by law; . . . (Italics supplied.) Section 1, Article 6, Constitution of Indiana. *Page 496