1906-1908 Ind. Op. Att'y Gen. p. 139b

While this act does not expressly authorize said board to make such conveyance yet the implication is clear, and the board in my opinion has the authority to make the conveyance for the pur- pose of securing the benefits of the appropriation, and I have accordingly prepared a form of deed for said southwest quarter of section 20, township 31, north range 13 east, in Allen county, Indiana, which in my opinion will comply with this provision of the appropriation act. You will also find enclosed a form of affidavit which I think the grantor Ackerman should make at the time when the deed is accepted and the deal finally closed. APPROPRIATION-WHEN INCREASES IN SALARIES ARE AVAILABLE. . March 28, 1907. Hon. John C. Billheimer, Auditor of State: Dear Sir.-In my opinion under the proviso in section 4, page 687 Acts 1907, the appropriation for the increase in salaries of the- custodian and engineer and their employes and assistants, is available on and after April 1, 1907, since both the custodian and engineer are state officers. JUDGES-CIRCUIT AND SUPERIOR JUDGES, SALARIES. March 28, 1907. Ion. John C. Billheimer, Auditor of State, Indianapolis, Indiana: Dear Sir.-You have submitted to me the question, "What is the law at this time covering payment of circuit and superior judges' salaries which are payable out of the state treasury?" Section 1438, Burns' Stats. 1901, fixed the salaries of judges of circuit and superior courts at $2,500.00 each, but permitted boards of county commissioners, in specified contingencies, to allow an additional sum as an increase of salary. Section 1439c, Burns' Stats. 1901, provided for a sliding scale of compensation for judges in certain districts, depending upon population and taxable -property; the miximum being fixed at $3,000.00. In 1903 an act was passed, reading as follows, Acts 1903 page 524: "An act concerning the compensation of judges of cir- cuit and superior courts in certain eases. a * * There shall be allowed to the judge of each circuit and to the judge of each superior court district, containing more than one county, m addition to the salary now provided by law, the sum of three hundred dollars per annum, which allow- ance shall be added to the salary of such judge in lieu of traveling expenses." The act of 1907 reads thus: "An act fixing the compensation to be paid out of the state treasury as salary to the judges of the circuit and superior courts of the state of Indiana, and declaring an emergency. * * * There shall be paid to each of the circuit and superior judges of this state, as salary from the state, annually, the sum of three thousand five hundred dollars ($3,500) payable quarterly from the state treasury out of any money not otherwise appropriated: Provided, however, That this act shall not be construed to repeal any laws or parts of laws now in force, authorizing boards of county commissioners in certain counties to make addi- tional, allowances to the judges in such counties, but no other or different salary allowance shall be made or paid by the state." From the general scope of the latter enactment, and the express exclusion of the one class of. cases mentioned, it is clear the legislature intended to repeal all former statutes relating to the subject matter of the act, except as therein otherwise pro- vided. Hence, section 1439c is repealed as is also section 1438, except in so far as it'empowers county boards to grant additional salary from county funds. It remains to consider whether the act of 1903 is repealed. The latter statute refers to an addition to the salary of the officers. Presumably the addition is of the same nature as that to which it is added; i. e., it is salary. Such addition is made not as trav- eling expenses, but "in lieu of traveling expenses." The title of the statute refers to the "compensation" of judges, and the act of 1907, in its title, purports to fix the "compensation" of these officers. Evidently judges' compesation is the title of both acts. and as the latter covers the entire subject matter of the former, there is a repeal by implication. M'oreover the act of 1907 saves from repeal the single provision concerning additions to salary made by county boards; thereby impliedly stating that all other additions are withdrawn by the operation of this statute. As the act of 1907 intends to fix the compensation of judges, it will be construed as determining the sum of money actually re- ceived by the officer from the state as salary, whether such was formerly received as pay for services rendered or in lieu of ex- penses. In Kilgore v. People, 76 Ill. 548, 552, the meaning of the term "compensation" is thus indicated: "The board is required to fix the 'compensation '-the whole compensation, including stationery, fuel and clerk hire. " In People v. Wemple, 115 N. Y. 302, 309, the court say: "The word compensation means, and I think obviously means, the sum of money which the judicial officer has been in receipt of from the state." In the case last cited, where the legislature had appropriated a sum of money "in lieu of" expenses, it was held to be included within the definition of "compensation," and to be a "clear grant of pay, or compensation, having no connection with the expenses incurred by a justice. As granted by this act it became naturally and plainly, as much a part of the compensation to the justice as though his salary, eo nomine, had been increased to compensate him further for what his office entailed upon him in the way of duties and work. Expenses or no expenses, he became entitled to the whole of the $1,200." My opinion therefore is, that the act of 1903 added $300 to the salary of each judge and became as much a part of his compensa- tion (or salary) as if so denominated expressly. Such being the case the act of 1907, which purports to "fix the compensation * * * to be paid as salary," to judges, repeals the act of 1903 by implication. INSURANCE-UNION LIFE INSURANCE COMPANY OF INDIANA. March 30, 1907. Ion. John C. Bilheimer, Auditor of State, Indianapolis, Indiana: Dear Sir.-I am in receipt of your communication of this date enclosing articles of incorporation of the Union Life Insurance Company of Indiana, and requesting my opinion thereon. The statute of 1897 (Chapter 195, Acts 1897) under which this asso-