62 Ind. 159 | Ind. | 1878
In this cause, the relator of the appellant, in and by his verified complaint, prayed the Vanderburgh Circuit Court to issue a writ of mandate requiring the appellee, the auditor of Vanderburgh county, to draw a warrant or order on the treasurer of said county, in favor of said relator, for a balance of salary alleged to be due him as judge of the Vanderburgh Criminal Circuit Court.
To the relator’s complaint, the appellee demurred, upon the following grounds of objection:
1. That it did not state facts sufficient to constitute a cause of action;
2. That it did not negative the fact that the relator had another remedy; and,
3. That it was, in other respects, informal and insufficient.
This demurrer was sustained by the court, and to this decision the appellant’s relator excepted; and, declining to amend his verified complaint, judgment was rendered against the relator, and in favor of the appellee, for the costs of this action, from which judgment this appeal is now prosecuted.
The decision of the circuit court, in sustaining the demurrer to his verified complaint, is assigned as error by the appellant’s relator.
In his verified complaint the relator alleged, in substance, that, on the 14th day of June, 1872, he was appointed and
We have given a full statement of the allegations of the relator’s verified complaint in this ease,because they show, very fully and clearly, not only the facts of the case, hut also the legal points upon which the appellant’s relator relied in his application for a mandate against the appellee.
This section 3 was set out at length in the relator’s verified complaint, and we have given it in full in our statement of the substance of said complaint. It will be observed, that, in and by this section, the annual salary of each of the judges of the criminal circuit courts was fixed at the sum of two thousand dollars, to be paid quarterly out of the treasury of the county in which such: court is established. This was. the general provision in-said section, and this provision was neither local nor special;. for it was expressly applicable in terms “to each of the-judges of the criminal circuit courts.” But the section contained this proviso:
“ Provided, That in all counties having a city with a population of forty thousand, the salary of said criminal circuit court judges shall be twenty-five hundred dollars, to be paid quarterly out of said county treasury, as aforesaid.”
Under and by virtue of this proviso, the appellant’s relator claims that he should have been allowed axxd paid as judge of the Vanderburgh Cximinal Circuit Court, out of
This brings us to the consideration of the main question in this case, and this question may be thus stated: “ Was the appellant’s relator, as judge of the Vanderburgh Criminal Circuit Court, by any fair or reasonable construction of said section 3, before cited, of the salary act, entitled to an annual salary of twenty-five hundred dollars, to he paid out of the treasury of Vanderburgh county?” If he was so entitled, then the court below erred in sustaining the demurrer to his verified complaint; but, if he was not so entitled, then no error was committed in sustaining said demurrer, and the judgment of the circuit court thereon must be affirmed.
In section 22 of article 4 of the constitution of this State it is provided, that “ The General Assembly shall not pass local or special laws,” among other cases, “ In relation to fees or salaries.”
In section 23 of the same article of the constitution it is provided, that, “ In all the cases enumerated in the pieced
The theory of the relator’s case, as stated in his verified complaint, is, that the provisions of said section 3, quoted in his complaint, of the salary act of March 10th, 1873, are in some manner hostile to and in conflict with said sections 22 and 23 of said article 4 of the constitution. It is apparent from the averments of the relator’s complaint, that he was at least embarrassed by the dilemma in which this constitutional question placed him. For, if said section 3. was constitutional, he had nothing to complain of, as he' had been fully paid the salary which the section gave him.. If, however, the section was unconstitutional, it was absolutely void, and the relator had no case; for he could not claim a salary under an unconstitutional and void law, simply because Marion county had, under such void law, paid the salary of the judge of its criminal circuit court. It was necessary, therefore, to the relator’s case, that he should quietly assume that the proviso in said section 3,. under which the judge of the Marion Criminal Circuit Court was allowed a salary of two thousand five hundred dollars, was constitutional and valid, and that the law would not be “ of uniform operation throughout the State,” unless it was so construed that it would give the same salary to each and all of the judges of criminal circuit courts in this State.
In support of this construction of section 3 of the salary act, supra, the appellant relies upon the decision of this court, in the ease of Cowdin v. Huff, 10 Ind. 83. The case is in point, and it must be confessed that it fully sustains, the construction which the relator asks us to place upon said section 3 of the salary act. In that case it was held,, “ that a law for paying, by salary, the judges of the court of common pleas, to be general and uniform, should fix the
In the case of The State v. Byrne, 11 Ind. 547, in construing said section 38, it was held, per curiam, without assigning any reason for the decision, “ that under the constitution and laws of the State, each judge of the court of common pleas is entitled to a salary of eight hundred dollars per annum.”
The two cases last cited have never been expressly overruled, but practically they have been, and they cannot now be regarded as authorities, on the point under consideration.
In the case of Groesch v. The State, 42 Ind. 547, a more liberal and accurate view was taken by this court of the effect of sections 22 and 23, of article 4, of the constitution, upon the legislation of this State. In that case, it was said of the subject now before us: “ It cannot be held that the framers of the constitution intended that the operation of laws throughout the State should be uniform in any other sense than that their operation should, be the same in all pai’ts of the State under the same circumstances and conditions.”
The recent case of Hanlon v. The Board of Commissioners of Floyd County, 53 Ind. 123, is directly in point; for in that case, as in this, the question for decision was the effect of the constitutional provisions before cited upon a section of a statute which gave to certain officers different salaries and made such difference to depend upon the question of population. In that case it was said by Worden, J., in delivering the opinion of the court: “ The objection is pointed to that portion of the section
The doctrine of the case last cited is clearly right, and is decisive of the case at bar. Section 3 of the salary act of March 10th, 1873, is constitutional and valid in all its provisions. Therefore it follows that the court did not err in sustaining the appellee’s demurrer to the relator’s verified complaint.
The judgment is affirmed, at the costs of the appellant’s relator.
Note. — Niblack, C. J., was absent and did not participate in the decision of this cause.