The State, ex rel. Hargrave, v. Reitz, Auditor.

the treasury of Vanderburgh county, an annual salary of twenty-five hundred dollars, instead of two thousand dollars. For the difference between these two sums for each year and fraction of a year he held said office of judge of said court, and for accrued interest thereon, the appellant's relator demanded of the appellee, as auditor, a warrant on the treasurer of Vanderburgh county. The appellee refused to issue such warrant, and the relator's object in the institution of this suit and in the prosecution of this ap-peal is to obtain a judgment requiring the appellee, as the auditor of Vanderburgh county, to issue such warrant. If it was the official duty of the appellee as auditor, under the law, to issue such warrant, then it is clear that the ap-pellant's relator is entitled by law to a writ of mandate against the appellee, as such auditor, to compel him, in the performance of his official duty, to issue such warrant. 2 R. S. 1876, p. 296, sec. 739.

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 be 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 50 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 special laws," among other cases, "In relation to

local or

fees or salaries."

In section 23 of the same article of the constitution it is provided, that," In all the cases enumerated in the preced

The State, ex rel. Hargrave, v. Reitz, Auditor.

ing section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State."

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 case 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

a

The State, ex rel. Hargrave, v. Reitz, Auditor.

same compensation for each and all of them." In section 38 of the act to establish courts of common pleas, 2 R. S. 1852, p. 23, the salaries of the judges of said courts were graded according to the population of their districts from a minimum of three hundred dollars to a maximum of eight hundred dollars.

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 parts of the State under the same cir

cumstances 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

Whitesel et al. v. Hiney et al.

which gives an increased compensation where the population exceeds fifteen thousand. But, in our opinion, the section is neither local nor special, within the true sense and meaning of the constitution; but, on the contrary, it is general and of uniform operation. It operates uniformly and alike, in all parts of the State, under like facts. It gives the same increase of compensation in all counties. where there is the same excess of population."

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.

WHITESEL ET AL. v. HINEY ET AL.

FRAUDULENT CONVEYANCE.-Action to Set Aside.-Pleading.—Evidence.— In an action by a judgment creditor, against his judgment debtor and another, to set aside an alleged fraudulent conveyance of real estate by the debtor to his codefendant, it must be charged in the complaint, and proved on the trial, that, at the time the conveyance complained of was made, the debtor did not have left enough of other property, subject to execution, to pay his debts.

From the Hamilton Circuit Court.

T. J. Kane and T. P. Davis, for appellants.

PERKINS, J.-On the 31st day of May, 1876, Benjamin F. Hiney filed his complaint as follows, in the Hamilton Circuit Court:

Whitesel et al. v. Hiney et al.

The plaintiff complains of the defendants, and says, that, on the 2d day of March, 1875, he recovered a judgment in this court against the defendant Philip P. Whitesel, for the sum of three hundred and sixty-seven dollars and costs of suit; that, since then, he has had divers executions issued thereon, all of which have been duly returned by the sheriff of Hamilton county, Indiana, nulla bona, except a small amount of personal property which the said defendant had set off to him under the exemption laws of the State; that said judgment is now due and unsatisfied, and said defendant has no property, except as hereinafter mentioned, subject to execution, and is openly and notoriously insolvent; that, on or about the 5th day of March, 1875, he purchased with his own means a certain town lot in the town of Clarksville, Hamilton county, Indiana, of the defendant. Isaac M. Caylor, which lot is more particularly described in the deed hereto annexed, and built thereon, out of his own means and moneys, a large and valuable frame residence, stable and out-houses, of the value of fifteen hundred dollars; that, for the purpose of cheating and defrauding his creditors, and more particularly this plaintiff, he caused the deed therefor to be made by said defendant Caylor to his wife, Mary E. Whitesel, his co-defendant, who accepted said conveyance without any consideration, with the knowledge of said fraudulent intent on the part of her co-defendant and husband, Philip P. Whitesel, which deed she and her said husband caused to be duly recorded in deed record No. 19, page 73, in the recorder's office of Hamilton county, Indiana, on the 6th day of March, 1875, a copy of which deed is filed herewith as part of this complaint; that the paper title to said premises still remains in said Mary E. Whitesel, who holds the same in fraud of the rights of the creditors of said Philip P. Whitesel. The defendant Isaac M. Caylor is made a party to this