Harlin v. Schafer

Gillett, J.

1. 2. The theory of appellant’s complaint in this suit is that the act creating the Elkhart and St. Joseph Superior Courts (Acts 1907, p. 7, §§1574-1595 Burns 1908) is unconstitutional, and that therefore appellant is entitled to have said act treated as a nullity as to St. Joseph county. The principal questions presented by this appeal have but recently been decided adversely to appellant. Board, etc., v. Albright (1907), 168 Ind. 564 . It is urged, however; that the section concerning the compensation of the clerk and sheriff is invalid, because the section, in effect, amends the fee and salary act without complying with the provisions of §21, article 4, of the Constitution. The section does not purport to be an amendment, but to give additional compensation for new duties. ' The constitutional provision referred to does not apply to such an enactment. See Spencer v. State (1854), 5 Ind. 41 ; Branham v. Lange (1861), 16 Ind. 497 ; Blakemore v. Dolan (1875), 50 Ind. 194 ; Barton v. McWhinney (1882), 85 Ind. 481 ; State v. Gerhardt (1896), 145 Ind. 439 , 33 L. R. A. 313; Cooley, Const. Lim. (7th ed.), 216. We have twice decided, however, that an act of this character should be upheld even if invalid as to the provision for such compensation. Woods v. McCay (1896), 144 Ind. 316 , 33 L. R. A. 97; Swartz v. Board, etc. (1902), 158 Ind. 141 .

3. It is further contended that the act is invalid as attempting, by local law, to create a special fund for the payment of the expenses of the court. The fees go into the treasury, and, even if the provision that they are to be applied to reimburse the county were regarded as void, that body would still, by the clearest implication of the remaining portions of said act, be chargeable with such expenses. In this view it appears that the provision referred to is nonessential to the general legislative scheme.

Judgment affirmed.