State, Ex Rel. v. Bowman, Auditor

156 N.E. 394, 199 Ind. 436, 1927 Ind. LEXIS 46

• Court: Indiana Supreme Court
• Decided: April 19, 1927
• Docket: No. 25,353.
• Status: Published

Opinions

Travis, J.

This is an action to mandate the auditor of state to draw a warrant in favor óf the relator for compensation for his services as a senator of the State of Indiana, acting as such in the regular session of the General Assembly of the State of Indiana in 1927, at the rate of $10 per day, to comply with §6 of House Bill No. 1, passed over the veto of the Governor, on January 17, 1927, and declaring an emergency. The action is declared in the complaint in two paragraphs, both of which aver that the relator was duly elected as a member of the General Assembly of the State of Indiana November 4, 1924, to serve four years in the Senate as such senator from Lake county, Indiana; and that he was duly qualified and sworn as a member of said General Assembly, and that since said date he has continued to serve, and is now serving, as a member of said General Assembly at the session which commenced on January 6, 1927, and had served for twelve days during such session, and that this action is brought on his own behalf and on the behalf of all the other members of the General Assembly of both the Senate and House of Representatives who are in like circumstances as this relator. It is further averred that the lieutenant governor, as presiding officer, and the other qualified officers of the Senate of the State of Indiana, ordered and directed the defendant, as auditor of the State of Indiana, to draw a warrant in favor of the relator in the sum of $120 as compensation for twelve days services rendered by him as such senator and member of the General Assembly at the rate of $10 per day, to wit: from January 6,1927, to January 18, 1927, and the relator had demanded of defendant, as such auditor of state, that he draw his warrant for said sum in favor of relator in payment for his services, which request defendant, as such auditor of state, refused and still refuses to do.

The first paragraph of complaint averred in addition to the above that prior to April 5, 1925, a statute had been in force which provided that pay of members of the General Assembly should be $6 per day while in actual attendance, but that, on said date of April 25,1925, an act took effect which expressly amended said prior act, so as to provide that from and after January 1,1929, the pay of members of the General Assembly should be $10 per day while in actual attendance, but entirely omitted any provision whatever for the payment of compensation in any sum whatsoever to members of the General Assembly for attendance and service in 1927, or at any time before January 1,1929, so that there was not and had not been since April 25,1925, any law whatever in force in Indiana which provided for payment to such members of any compensation whatever until such a law was enacted in 1927 as in the first paragraph of complaint before stated. It further averred that the Constitution of the State of Indiana provides that the members of the General Assembly shall receive for their services a compensation to be fixed by law; and that the statute which took effect January 17, 1927, fixed the compensation of members of the General Assembly at $10 per day while in actual attendance; and that since April 25, 1925, there has been no other law whatever providing for the payment of compensation to such members.

To this complaint, defendant, the auditor of state, demurred upon the ground that the complaint does not state facts in either paragraph sufficient to state a cause of action. The trial court sustained the demurrer to the complaint, and upon plaintiff’s refusal to plead over or amend the complaint, the court rendered judgment that the plaintiff take nothing and the defendant recover his costs.

The sole error presented is predicated upon the court’s ruling which sustains appellee’s demurrer to appellant’s complaint, and each paragraph thereof. The assign-' ments of error present for decision the constitutionality of §6 of House Bill No. 1, passed over the veto of the Governor, on January 17, 1927. The propositions presented by appellant are: (a) That the Constitution does not forbid the legislature in one session to repeal, or to amend out of existence, any provision of law enacted by such legislature at any previous session; and applies the proposition to §1, Art. 4, Constitution of Indiana, which provides, that the legislative authority of the state vests in the General Assembly; and (b) that §1 of the act of the General Assembly passed by it in 1881, which fixed the compensation of members of the General Assembly at $6 per day, ceased to exist upon its amendment in 1925, except as in its amended form, as amended by the act passed in 1925 (Acts 1925, ch. 109, p. 284); and corollary thereto; (c) that the only law in force in January, 1927 (the act passed by the General Assembly in 1925, by which the compensation of the members of the General Assembly.was fixed at $10 per day, from and after January 1,1929), is the statute here in question, which provides that $10 per day be paid as compensation to the members of the general Assembly for the session of 1927; and that it does not increase the compensation as prohibited by the Constitution, (§28, Art. 4, Constitution of Indiana).

The acts of the General Assembly which fixed the compensation of its members are here set out in the chronological order of their passage by the General Assembly, beginning with the act approved April 21,1881. The General Assembly, in special session in 1881, passed an act entitled, “An act concerning the General Assembly, the business therein, and committees and clerks thereof.” (Approved April 21, 1881); the first section of which act only is applicable here is as follows:

“Section 1. Be it enacted by the general assembly of the State of Indiana, That the pay of the members of the General Assembly shall be six dollars per day while in actual attendance, or absent by leave, or on business of the General Assembly, or unable to attend from sickness, and five dollars for every twenty-five miles they may travel from their usual places of residence to the seat of government and back: Provided, That when a special session is called to assemble on the day succeeding the expiration of any other session, no mileage shall be allowed members therefor.” Acts 1881, ch. 54, p. 517.

The compensation of members of the General Assembly continued under the act passed in-1881 until 1925, which is admitted by both appellant and appellee, when, at the regular session of the general assembly, it enacted the following law:

“An Act to amend section 1 of an act entitled ‘An Act concerning the general assembly, the busi ness therein, and committees and clerks thereof,' approved April 21, 1881,

“Section 1. Be it enacted by the General Assembly of the State of Indiana, That section 1 of the above entitled act be amended to read as follows: Section 1. That from and after the first day of January, 1929, the pay of the members of the General Assembly shall be ten dollars ($10) per day while in actual attendance, or absent by leave, or on business of the General Assembly, or unable to attend from sickness, and five dollars ($5) for every twenty-five miles they may travel from their usual places of residence to the seat of government and back: Provided, That when a special session is called to assemble on the day succeeding the expiration of any other session, no mileage shall be allowed members, therefor. The speaker- of the house of representatives and the lieutenant-governor for acting as president of the senate shall each receive compensation for his services at the rate of twelve dollars ($12) per day.”

Acts 1925, ch. 109, p. 284. The pertinent parts of the statute (which contains §6 now under review for construction) are as follows:

“An act to appropriate $100,000.00 to defray the expenses of the 75th general assembly of the State of Indiana, providing how the expenses and employees thereof shall be incurred and paid, how the officers, employees and assistants thereof shall be selected, fixing the per diem and mileage of members of the general assembly, repealing all laws in conflict therewith and declaring an emergency.

“Section 1. Be it enacted . . . That the sum of $100,000.00 be and the same is hereby ap-. propriated ... to defray the expenses of the 75th general assembly of the State of Indiana . . .

“Section 2. It shall be the duty of the auditor of state to audit the accounts and draw his warrants upon the treasurer of state for the per diem-and mileage of senators and representatives . . . upon the certificate, in the case of senators, of the president of the senate. . . . Setting forth the time of service and amount of mileage and allowance to which such senators and representatives may be entitled. ...

“Section 6. That the pay of the members of the 75th General Assembly shall be ten dollars ($10.00) per day while in actual attendance, or absent by leave, or on business of the'General Assembly, or unable to attend from sickness, and five dollars ($5.00) for every twenty-five miles they may travel from their usual places of residence to the seat of government and back, and the speaker of the House of Representatives and the lieutenant governor for acting as president of the senate during the 75th General Assembly shall each receive compensation for their services at the rate of twelve dollars ($12.00) per day.

“Section 7. All laws and parts of laws in conflict herewith are hereby repealed.

“Section 8. Whereas an emergency exists for the immediate taking effect of this act, the same shall be in full force and effect from and after its passage.”

(Passed over the Governor’s veto, January 17, 1927.)

The crucial point in dispute between appellant and appellee is the date when the act passed by the General Assembly in 1925 became a law or went into effect. Appellant claims that this act was in effect from and after its passage, approval by the Governor, publication, distribution, and proclamation by the Governor. Appellee claims that the act will be in effect from and after January 1,1929, and not before that date. The General Assembly, at its regular session in 1925, had two ways by which it could have changed the pay of its members: first, by a new act; and second, by an amendment of the old act. The General Assembly knew the law .and rules of construction which applied to each course under which it might proceed in making the change of compensation to its members, and the time when such compensation should begin. If it should have pursued its course to make the change by use of an éntirely new act, in the language of amended §1 of the act of 1925, it will be conceded that it would not, in that form, repeal §1 of the act of 1881. It will add nothing to the argument, in assisting in construing the amended act, to premise that such new act, had it been passed without a direct or indirect repeal, would have repealed §1 of the act of 1881 by implication to take effect January 1, 1929; and had the General Assembly pursued its course by a new act, it may be admitted that §1 of the act of 1881 would have been effectual until January 1, 1929, at which time it will be repealed by implication because it could not stand as against the new act being entirely incompatible with it. The General Assembly,, in choosing the route to accomplish its purpose by way of amendment, adopted all the rules of construction applicable in construing the amendatory act and the act which is sought to be amended. There is no plausible reason in the letter of the amendatory act itself why the general rules of such construction do not apply here. Generally, an amendatory act or section of an act, takes the place of and supersedes the act or section of the act which it amends. This rule is so strong in the jurisprudence of the different judicial sections of the United States, that it is reduced to a legal axiom that an amended statute is to be construed as if it had read from the beginning as it does with the amendment added to it, or incorporated in it. Metsker v. Whitsell (1914), 181 Ind. 126, 140, 103 N. E. 1078; Blakemore v. Dolan (1875), 50 Ind. 194, 204; Smith v. State (1924), 194 Ind. 686, 688, 144 N. E. 471; Dimpfel v. Beam (1907), 41 Colo. 25, 91 Pac. 1107; Black, Interpretation of Laws (1896), §131; Goldman v. Kennedy (1888), 49 Hun. (N. Y.) 157, 1 N. Y. Supp. 599; Kamerick v. Castleman (1886), 21 Mo. App. 587; Holbrook v. Nichol (1864), 36 Ill. 161; Conrad v. Nall (1872), 24 Mich. 275; Ludington v. United States (1879), 15 Court Claims 453; Farrell v. State (1892), 54 N. J. Law 421, 24 Atl. 725; McKibben v. Lester (1859), 9 Ohio St. 627; Lewis’ Sutherland, Statutory Construction, §237 (133). Walsh, Treasurer, v. State, ex rel. (1895), 142 Ind. 357, 41 N. E. 65, 33 L. R. A. 392.

Had the original §1 of the act passed in 1881 been then as it was arnended by the act passed in 1925, it would not have been invalid because of its being in the language of the amended section. The General Assembly might have prepared the amendatory act so that it fully and unequivocally provided that the compensation of its members.should be $6 per day until January 1, 1929. Or it might have incorporated in the amended section that such amended section was not to go into effect until the prospective time named in the act when the compensation of $10 per day should begin. The General Assembly did neither of those things, although it was well known to each of its members that the act might have been so worded. The General Assembly sought to amend by using the exact language, as far as it went, of the original §1 of the act of 1881 except the amount of compensation and the last sentence of the amendment. Any words or language replaced by other words or language in the amendment abrogate the language of the original section which is supplanted by different words or language in the amendment, so that all' those provisions or words of the original section which are not repeated in the amended statute are abrogated and are therefore of no force or effect whatever. People v. Supervisors (1876), 67 N. Y. 109, 23 Am. Rep. 94; Reid v. Smoulter (1889), 128 Pa. St. 324, 18 Atl. 445, 5 L. R. A. 517; Goodno v. City of Oshkosh (1872), 31 Wis. 127; Sener v. Ephrate Borough (1896), 176 Pa. St. 80, 34 Atl. 954; Somers v. Commonwealth (1899), 97 Va. 759, 33 S. E. 384.

' This amendment was enacted according to the provision of the Constitution of Indiana, §21, Art. 4, (at least the manner of its adoption is not questioned); and having been so enacted and being a statutory amendment, it operates to obliterate anything in' the original section of the act of 1881 that is repugnant to or inconsistent with the amendatory act. McDowell v. Warden of Reformatory (1911), 169 Mich. 332, 135 N. W. 265.

It is not inconsistent with the rules of construction for an act to go into effect as a law as provided by the Constitution; and in this state, upon the final proclamation of the Governor; even though some provisions of the act are not to become operative until a future time or upon a stated contingency. Under the Constitution a law takes effect from the time of its distribution by authority throughout the state except as otherwise provided by the Constitution, to wit: in emergency cases. Sudbury v. Board, etc. (1901), 157 Ind. 446, 452, 62 N. E. 45; State, ex rel., v. Indiana Board of Pharmacy (1900), 155 Ind. 414, 58 N. E. 531.

Without anything else standing in the way, under rules above stated, amended §1 replaced original §1 of the act of 1881 as fully and effectually as if the amended section had been the original section . when originally adopted. It must follow, original §1 being so obliterated and supplanted, and the amendatory, section by its terms providing compensation to begin only on January 1, 1929, there was no law in force which provided for compensation for the session of the General Assembly in 1927.

Appellee claims further, that inasmuch as compensation as provided by the amendatory act does not begin until' January 1, 1929, the power and authority of amended §1 of the act of 1881, continues in force and effect until January 1, 1929, for the reason that the General Assembly is without power to defeat the com pensation of members of the General Assembly as provided in former act, unless and until it provides by other legislation some compensation. In other words, appellee contends such members are entitled to compensation theretofore fixed without power of repeal unless other compensation is fixed by virtue of the word “shall” in the sentence “The members of the General Assembly shall receive for their services a compensation to be fixed by law.” §28, Art. 4, Constitution of Indiana. To so construe the Constitution, we must read it that not only shall'members of the General Assembly receive, but that they shall fix such compensation by law, and that, being once fixed, compensation cannot be entirely taken away. But the Constitution by this provision does not provide that the General Assembly shall fix such compensation by law.. It only provides that it is to be fixed by law, and when there is a statute which so fixes such compensation, the members of the General Assembly shall receive such compensation. To hold according to the contention of appellee, it would be necessary to construe the Constitution that the General Assembly had power as provided in this instrument to amend certain laws but not others, none of which are designated therein. The language of the Constitution is plain and does not need construction.

Argument is used by appellee to the effect that if there is no compensation provided for the 1927 session of the .General Assembly or any other session of this body, it might act violently and create a compensation for itself at the then session, which would violate all good judgment and sound reason; and supported this argument by the language of the Constitution which provides that “no increase of compensation shall take effect during the session at which such increase may be made,” using the premise to substantiate the statement that the $6 per diem created by the act of 1881 is still in force until the per diem of $10 created by the amendatory act becomes payable. This seems to be a violent construction clearly not within the literal interpretation of the words of §28, Art. 4, of the Constitution.

It appears plain from the literal wording of the amendatory act that it was not the intent of the legislature to continue in force and effect §1 of the act of 1881 which it amended, without any words to continue the per diem compensation of $6 against the general rules of statutory construction.

It is, therefore, held that the amendatory act of 1925 entirely supplanted and took the place of the section of the act which it sought to amend, to wit: §1 of • the act of 1881 (Acts 1881, ch. 54); which left no law theretofore fixed by the General Assembly in force which provided for the per diem compensation of members of the General Assembly at any general or special session after the session of the legislature in 1925, and prior to the regular session of 1929. There being no law in force for such compensation, the General Assembly had the authority, under §28,.Art. 4, of the Constitution of Indiana, to fix by law compensation for the members of the General Assembly for service at its session in 1927. Section 6 of House Bill No. 1, which became an enrolled act by virtue of the passage of the act over the veto of the Governor on January 17, 1927, is constitutional.

The trial court committed error by its action in sustaining appellee’s demurrer to appellant’s complaint. The cause is remanded to the trial court and the trial court is ordered to overrule appellee’s demurrer to appellant’s complaint, and for further action not inconsistent with this opinion.

Judgment reversed.

Gemmill, C. J., concurs. Martin, J., concurs in result and files concurring opinion. Myers and Willoughby, J. J. dissent; Willoughby, J., filing dissenting opinion.