elections, and the terms of such officers. The proviso qualifies these general provisions by declaring that no municipal judge shall be elected until the general election to be held in May, 1905. A proviso is generally held to repeal a preceding and inconsistent provision. End Interp. St. §§ 183-189. While the act mentions a municipal judge as one of the city officers, it does not create the office, nor define the powers or duties of its incumbent. Even if section 1 was the only portion of the act to be considered, we would feel compelled, under the well-established rules of statutory construction, to uphold the entire section, and to decide that the proviso is a qualification of the preceding provisions, and plainly manifests the legislative intent that no election for municipal judge should take place until 1905. Suth. St. Const. § 221; Potter, Dwar. St. 117; Bish. St. Crimes, §§ 57, 58; State v. Myers, 146 Ind. 36, 44 N. E. 801; End. Interp. St. §§ 183, 186, 189.

But it is observed that section 1 of the act of March 7, 1901 (Acts 1901, p. 132), does not stand alone, and that is to be construed in connection with sections 42, 45, and 46 of the act of 1893, as amended by the act of March 7, 1901 (Acts 1901, pp. 132, 134, 135). So interpreted, there can remain no doubt that the legislature intended to create the office of municipal judge on May 9, 1901, and not before, and that no election for that office should take place until the first Tuesday of May, 1905. It is said in Association v. Black, 136 Ind. 544, 553, 35 N. E. 829, 832, that "it is a well-established rule in the construction of statutes that the court will not presume that the legislature intended any part of a statute to be without meaning; but it is also a rule, equally well settled, that every part of the statute must be viewed in connection with the whole, so as to make all its parts harmonize, if practicable, and give a sensible and intelligent effect to each. Suth. St. Const. § 325." If the proviso in the act amended section 1 of the act of 1897, amending the act of March 3, 1893, be rejected, the two acts of March 7, 1901, when construed together, must be held to create the office of municipal judge on May 9, 1901, and not be fore. The act of March 3, 1893 (Acts 1893, p. 202; section 4099, Burns' Rev. St. 1894), of which the two acts of March 7, 1901, supra, are amendments, vested the judicial authority in the mayor, the office of municipal judge was not known to that act, and the creation of that office was exclusively the work of the amendatory acts of 1901, found on pages 132, 134, and 135 of the Acts of 1901. It follows that, if the acts of 1901 are valid, there could be no election for the office of municipal judge until the first Tuesday in May, 1905.

Counsel for appellee assert that so much of the act of March 7, 1901, as declares that the office of municipal judge shall come into existence May 9, 1901, that the first election

to fill the same shall take place on the first Tuesday of May, 1905, and that the governor shall fill the vacancy for the intervening period, is in conflict with section 25, art. 1, of the state constitution, with section 18, art. 5, and with sections 1, 15, art. 7, of that instrument. It is assumed in the argument for the appellee that all judges of all courts must be elected by the people, and the several sections of the constitution, just mentioned, are referred to in support of this proposition.

The necessity for any discussion of the constitutional question may well be doubted. For the purpose of the decision of this case, it makes no difference whether under the state constitution all judicial officers must be elected, or whether some of them may be appointed. It may be assumed that the office of municipal judge is an elective office. The real point of inquiry is, was there a vacancy in the office of municipal judge of the city of Ft. Wayne on May 9, 1901? If a vacancy existed at that time, the power of the governor to fill the vacancy by appointment admits of no dispute. Const. art. 5, § 18. Whether a vacancy in the office of municipal judge existed depends upon the answer which may be made to another question, had the legislature the power to fix the time when the act creating the office should take effect and become operative? All the authorities affirm that it had. The rule and limitation of the constitution (section 28, art. 4) is that no act shall take effect until the same shall have been published and circulated in the several counties of this state by authority, except in case of emergency, which emergency shall be declared in the preamble or in the body of the law. Subject to this restriction, and to the further limitation that the taking effect of no law shall be made to depend upon any authority except as provided in the constitution (section 25, art. 1), the authority of the | legislature to fix the time when any act shall take effect cannot be questioned.

The general rule is thus stated in Suth. St. Const. § 107: "The power to enact laws includes the power, subject to constitutional restrictions, to provide when in the future, and upon what condition or event, they shall take effect. Where a particular time for the commencement of a statute is appointed, it only begins to have effect and to speak from that time, unless a different intention is manifest, and will speak and operate from the beginning of that day." And in End. Interp. St. § 499, it is said that “an act may be passed to take effect not only at a future day certain, but also upon the happening of a future contingency. In the former case the act takes immediate effect on the day fixed. * And until the day when an act is to take effect arrives the law has no force, even as notice to the persons to be affected by it." Const. art. 4, § 28; Rice v. Ruddiman, 10 Mich. 125; Price v. Hopkin, 13 Mich. 318; Larrabee v. Talbott, 5 Gill,

426, 46 Am. Dec. 637, 645; Com. v. Fowler, 10 Mass. 290; People v. Johnston, 6 Cal. 673; State v. Wells, 144 Ind. 231, 236, 41 N. E. 461, 43 N. E. 133; Clem v. State, 33 Ind. 418, 423; State v. Menaugh, 151 Ind. 260, 51 N. E. 117, 357, 43 L. R. A. 408, 418; State v. Mount, 151 Ind. 679, 51 N. E. 417; 23 Am. & Eng. Enc. Law, 225.

The objection that, before the time fixed for the taking effect of that act, two elections would occur, at either of which a municipal judge might be elected, is not in accordance with the facts. The office did not come into existence until two days after the general election of May 7, 1901. The next general city election will not occur until the first Tuesday of May, 1905. The general city elections are the only elections which can be considered, and no such election occurred after the act took effect, or can occur until May, 1905. An election of a municipal judge before May, 1905, would be a nullity. People v. Johnston, 6 Cal. 673.

The power of the legislature to fix the length of the term of office of a municipal judge, subject only to the constitutional restriction that it cannot exceed four years, is indisputable. Legislative authority to fix the times and intervals at which general city elections shall be held is equally well established. Such elections may be required to be held every year, every two years, every three years, or every four years, and an interval of four years is quite as regular and as fully within the competence of the legislature to establish as an interval of one year.

The motives of the legislative body in enacting that the office of municipal judge should come into existence two days after the general city election of 1901, and that future general city elections should be held on the first Tuesday of May, 1905, and on the first Tuesday of May in every fourth year thereafter, are not proper subjects of judicial examination. Neither can the court consider the policy or expediency of these regulations. State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566; Parker v. State, 132 Ind. 419, 31 N. E. 1114; State v. McClelland, 138 Ind. 395, 37 N. E. 799; Townsend v. State, 147 Ind. 624, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477; City of Chicago v. Manhattan Cement Co., 178 Ill. 372, 53 N. E. 68, 45 L. R. A. 848, 69 Am. St. Rep. 321.

For the reasons herein stated, we are constrained to hold that the acts of March 7, 1901, creating the office of municipal judge, and fixing the time for the election of that officer, were valid, and consequently that the facts stated in the answer and return to the alternative writ and the complaint were insufficient to constitute a defense to the application, and that the court erred in overruling the demurrers to such answer and return.

Judgment reversed, with instructions to sustain the demurrers to the answer and return, and for further proceedings not inconsistent with this opinion.

63 N.E.-46

(28 Ind. App. 654)

YOUNG et al. v. STEVENS et al. (Appellate Court of Indiana. April 10, 1902.) JUDGMENT-PARTIES-EFFECT-MORTGAGES

-FRAUD-PRINCIPAL AND SURETY.

The holder of a note brought an action thereon against the principal maker and sureties, and also against a mortgagee of the principal maker, to have the mortgage adjudged fraudulent as to creditors. The sureties were defaulted. The holder had judgment on the note, but the mortgage was adjudged valid. and decree entered for the foreclosure. The sureties paid and satisfied the judgment on the note, and brought suit to recover the amount so paid, and to have the mortgage adjudged fraudulent as to them as creditors of their principal. Burns' Rev. St. 1901, §§ 1226, 1228, provide that, where a judgment is taken against the joint makers of a note, the sureties may, in the same or a subsequent suit, establish the fact of their suretyship, and, after they have paid the judgment, may have execution thereon. Held, that the sureties were bound by the adjudication of the validity of the mortgage in the former action, to which they were parties.

Appeal from circuit court, Wayne county; H. C. Fox, Judge.

Action by Martin L. Young and another against Thomas B. Stevens and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

M. E. Forkner and Thomas J. Study, for appellants. Jackson & Starr and S. C. Whitesell, for appellees.

ROBINSON, P. J. Suit by appellants for a money judgment and for a decree adjudging a mortgage fraudulent. In 1893 appellee Stevens, with appellants Young and Roth as his sureties, executed to William B. Barefoot his promissory note. In 1897 Stevens mortgaged certain lands to appellee Kerlin. Barefoot afterwards brought suit on the Stevens note against Stevens as principal and Young and Roth as sureties, and against Kerlin to have the Stevens mortgage to him declared fraudulent and void as to Stevens' creditors. Young and Roth were defaulted. Stevens and Kerlin answered, and Kerlin filed a cross complaint against Barefoot and Stevens asking a foreclosure of his mortgage. Judgment was given Barefoot against Stevens, Young, and Roth on the note, against Barefoot as to the validity of the mortgage, and a decree of foreclosure against Stevens and Barefoot rendered in Kerlin's favor. Afterwards, Barefoot's judgment on the note not having been paid, Young and Roth executed their promissory note to Barefoot for the amount of the judgment, and the same was satisfied of record. Young and Roth bring this suit against Stevens and wife and Kerlin, asking a recovery of the money they paid as sureties for Stevens, on the Barefoot judgment, and that the Stevens mortgage to Kerlin be declared fraudulent and void as to creditors of Stevens. The above facts are shown by the complaint and Kerlin's answer, and present the question as to what extent Young and Roth were bound by the judgment in

Kerlin's favor and against Barefoot as to the validity of the Stevens mortgage to Kerlin. Young and Roth were sued in the Barefoot suit as sureties for Stevens. Had they been sued as joint obligors with Stevens, no equltable relief to set aside the mortgage to Kerlin could have been asked without showing that there was no legal remedy against any of the joint obligors. Eller v. Lacy, 137 Ind. 436, 36 N. E. 1088. And in the complaint in this action they aver that, Stevens having failed to pay the Barefoot judgment, "and the same remaining wholly unpaid, these plaintiffs, as sureties as aforesaid for said Thomas B. Stevens, did, on the 24th day of April, 1899, pay, satisfy, and discharge said judgment by the execution of their promissory note to said William Barefoot," etc. Independently of the statute, a surety, having paid the debt, has the right to be subrogated to the rights of the judgment creditor, and to use the creditor's judgment to coerce payment by the principal. Such payment by the surety is in the nature of a purchase from the creditor, and operates as an equitable assignment giving to the assignee such rights as the creditor had. Thomas v. Stewart, 117 Ind. 50, 18 N. E. 505, 1 L. R. A. 715; Downey v. Washburn, 79 Ind. 242; Manford v. Firth, 68 Ind. 83. And under the statute (sections 1226, 1228, Burns' Rev. St. 1901), where a judgment is taken against the parties as joint makers of a note, the sureties may, in a subsequent suit, notwithstanding the form of the judgment, establish the fact of their suretyship; and after they have paid the judgment they may have their suretyship tried and determined, and have execution on the original judgment. Zimmerman v. Gaumer, 152 Ind. 552, 53 N. E. 829; Montgomery v. Vickey, 110 Ind. 211, 11 N. E. 38; Scherer v. Schutz, 83 Ind. 543. It is true, Young and Roth assumed a liability at the time they became sureties on the note to Barefoot, and in that sense they were creditors of Stevens. It is also true that they were not parties to the issue on the mortgage In the Barefoot sult. But it cannot be said that they were strangers to the controversy. They could, when sued as sureties, have had that fact determined; and, when judgment was taken against all the parties who signed the note, and Young and Roth were adjudged sureties, they might then have attacked the validity of the mortgage. Barnes v. Sammons, 128 Ind. 596, 27 N. E. 747. The purpose of such action on their part would have been to enforce the Barefoot indebtedness against Stevens. But this identical subjectmatter was litigated by the creditor, who sued these appellants as sureties. They might have litigated that question themselves. The creditor did litigate it, and these appellants would necessarily get the benefit of his suit.

Had the creditor succeeded in having the mortgage declared invalid, these appellants, having had their suretyship adjudged, could have paid the judgment against the principal debtor, and through the original judgment could have levied on the mortgaged land. And in such case Kerlin would not have had the right to try again, as against appellants, the question of fraud or good faith in the execution of the mortgage. In this action appellants are suing, not simply as creditors of Stevens, but as sureties who have paid a certain judgment debt against Stevens. They ask a new judgment against Stevens, it is true, not because they are simply creditors; but because, as sureties, they paid a certain judgment debt for him. The note was merged in the judgment, and they seek now to establish a right based upon the judgment, and its payment by them as sureties. They could have asked that their suretyship be established, and that they have execution under the original judgment rendered in favor of the original judgment creditor. But, whether they pursue this course, or ask a new judgment, as they have, the result will be the same, because in either event they must derive whatever rights they acquire through the original judgment, which they claim they paid as sureties for the judgment debtor. But, whether they proceed directly under the original judgment or indirectly through the new judgment, their rights will be no greater than those given by the original judgment; just as a common-law judgment creditor might obtain a writ on the judgment, or he might bring suit on the judgment and obtain a writ on the new judgment, but it would be limited in its effect to the incidents attaching to the original judgment. Appellants seeking to establish a right because of having paid a judgment as sureties must claim through and under that Judgment. The statute manifestly intended that sureties who pay a judgment debt shall have the same rights as the judgment creditor. Had appellants purchased the judgment, and taken an assignment to themselves, they could have acquired no greater rights than the judgment creditor had. Having paid the judgment as sureties, and seeking in that capacity to be reimbursed, they are subrogated to the rights of the judgment creditor. Claiming through him, they cannot succeed to any greater rights than he had. There is no authority for saying that when they seek to be reimbursed as sureties through a new judgment they have any greater rights than if seeking to be reimbursed through an execution under the original judgment. In either case they seek to be reimbursed as sureties, and as such they cannot have, under the statute, greater rights than those of the principal judgment creditor. Judgment affirmed.

which dies insolvent, the holder of a junior lien proposes to buy its claim, thereby reaching the same result that would follow from a foreclosure sale, purchase, and redemption. No reason can be suggested why it should not have power to save itself from the annoyance and risk of litigation, and collect its money by selling and assigning its note and mortgage to him. The legislature, by the negative and restrictive language used in the act of 1897, recognized the prior existence of the right. Bank v. Sharp, 6 How. 301, 12 L. Ed. 447. It follows that, when the note and mortgage were executed by Kline, they carried with them the promise of the maker to pay to the assignee, if they should thereafter be properly assigned by the payee. The law is a part of every contract. Pennsylvania Co. v. Clark, 2 Ind. App. 152, 27 N. E. 586. The law as it existed at the time of the execution, and not the law as it was when the assignment was made, determines the right to make it. Bank v. Sharp, supra. Had the legislature thereafter attempted to destroy the negotiability of the contract, its act would have been void. Article 1, § 10, Fed. Const.; article 1, § 24. Const. Ind.; Bank v. Sharp, supra. Nor in order to produce such result was it necessary that the act be prohibitive. “One of the tests that a contract has been impaired is that its value has by legislation been diminished. It is not by the constitution to be impaired at all. This is not a question of degree or manner or cause, but of encroachment in any respect upon its obligation, dispensing with any part of its force." Bank v. Sharp, supra; Johnson v. Board, 140 Ind. 152, 39 N. E. 311; McClelland v. State, 138 Ind. 321, 37 N. E. 1089; Edwards v. Kearzey, 96 U. S. 611, 24 L. Ed. 793; Walker v. Whitehead, 83 U. S. 314, 21 L. Ed. 357; State v. Helms, 136 Ind. 122, 35 N. E. 893; Association v. Elbert, 153 Ind. 198, 54 N. E. 755. The effect of the act is to render an assignment made without the order therein required noneffective and void. Dudley v. Congregation, 138 N. Y. 451, 34 N. E. 281; The Vigilancia, 19 C. C. A. 528, 73 Fed. 452-457; Clark & M. Corp. § 159. To make the right of assignment to depend upon the consent of a third person, which may or may not be given, is to induce a new and burdensome provision into the contract. The Vigilancia, 19 C. C. A. 528, 73 Fed. 452; The Vigilancia (D. C.) 68 Fed. 781. In the case cited the consent required was that of the holders of two-thirds of the stock of the corporation. It was held that a contract made prior to the act, and calling for the execution of a mortgage subsequent thereto, would be impaired thereby, and the act was construed to have only a prospective operation. The consent of the stockholders required by the New York act considered in Re The Vigilancia, might or might not be given; it was a matter of choice upon their

part. The act of 1897 under consideration is entirely different. The making of the order by the circuit court or the judge is a judicial act (City of Zanesville v. Zanesville Tel. & Tel. Co. [Ohio] 59 N. E. 781-786, 52 L. R. A. 150); an act to be performed when facts are exhibited and established, in some method known to the law upon which the order should be, and presumptively is, always made. When the instruments were executed, they were negotiable, and assignable when it became necessary or expedient in the legitimate transaction of the business for doing which the association had been chartered to assign them. When no such neces sity or expediency existed, the officers of the association had no power to negotiate or transfer them. The right and the power to so negotiate remains exactly as it was be fore, unimpaired and undiminished. It is a matter of common knowledge that the operations of building and loan associations extend over large areas; that their membership consists largely of persons of moderate means without opportunity to know or control the actions of the officers and managers; that great injustice had been done them at times, and that constant opportunity for frauds against them existed. The legislature, recognizing the conditions, enacted the law in question for the purpose of safe guarding the public from imposition and loss. That the legislature has the power to make police regulations for the protection of its citizens against fraud and imposition is established. Brechbill v. Randall, 102 Ind. 528, 1 N. E. 362, 52 Am. Rep. 695; New v. Walker, 108 Ind. 365, 9 N. E. 386, 58 Am. Rep. 40; Hankey v. Downey, 116 Ind. 118, 18 N. E. 271, 1 L. R. A. 447; Hocket v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201. Corporations are impliedly subject to such reasonable regulations in respect to the general conduct of their affairs as the legislature may from time to time prescribe, which do not interfere with the substantial enjoyment of privileges conferred, and serve only to secure the ends for which the corporation was created. Insurance Co. v. Needles, 113 U. S. 574, 5 Sup. Ct. 681, 28 L. Ed. 1084; Eagle Ins. Co. of Cincinnati v. Ohio, 153 U. S. 446, 14 Sup. Ct. 868, 38 L. Ed. 778; Sinking Fund Cases, 99 U. S. 700, 25 L. Ed. 496; (applied to building and loan associations) Minnesota v. American Savings & Loan Ass'n, 64 Minn. 358, 67 N. W. 1. It does not, therefore, appear that the act of 1897 impairs the validity of either the contract be tween the association and the borrower or the contract between it and the state. This cause was appealed to the supreme court, and transferred by that court to this one. Such order conclusively declares jurisdiction to be in this court. The questions presented and necessary to its decision have been examined, and no error appears.

The judgment is therefore affirmed.