Arnett v. State ex rel. Donohue

• Decision Date: 22 February 1907
• Docket Number: 20,748
• Citation: 80 N.E. 153,168 Ind. 180
• Parties: Arnett, Controller, v. State, ex rel. Donohue
• Court: Indiana Supreme Court

80 N.E. 153

168 Ind. 180

Arnett, Controller, v. State, ex rel. Donohue

No. 20,748

Supreme Court of Indiana

February 22, 1907

From Howard Superior Court; B. F. Harness, Judge.

Mandamus by the State of Indiana, on the relation of Michael Donohue against William H. Arnett, as controller of the City of Kokomo. From a judgment for plaintiff, defendant appeals.

Affirmed.

C. O Willitts, Warren R. Voorhis and Blacklidge, Shirley &amp Wolf, for appellant.

Charles W. Miller, Attorney-General, C. C. Hadley, William C. Geake, Henry M. Dowling and Bell & Purdum, for appellee.

OPINION

Gillett, J.

In attempting to secure a reversal of the judgment of the court below, appellant contends (1) that the act of February 28, 1897, and the amendment of 1901 (Acts 1897, p. 90, Acts 1901, p. 24, § 3717 et seq. Burns 1901), providing for a metropolitan police force in certain cities of the State, are unconstitutional; and (2) that said acts are repealed by an act concerning municipal corporations approved March 6, 1905 (Acts 1905, p. 219, § 3462 et seq. Burns 1905).

It is argued that the act of 1897 is invalid because it places the burden of supporting the police system upon the municipality, without giving it any control over the expenditures therefor. The case of City of Evansville v. State, ex rel. (1889), 118 Ind. 426, 4 L. R. A. 93, 21 N.E. 267, is cited in support of this contention. In that case, however, the fact was that the legislature had provided for the creation of a single board, to which it attempted to give the control of the city's police and fire departments, and the act, taken as a whole, was adjudged invalid, as an unwarranted interference with the right of local self-government. The statute before us is quite different in principle, since it has relation only to the department of police. The maintenance of peace and quiet and the suppression of crime and immorality are matters of general interest, and to the attainment of these ends the cities and towns are largely subject to legislative control. As the commonwealth is a unit in respect to its interest in such matters, the regulation thereof is a proper subject of legislation, and whether cities and towns in respect to these matters shall have a centralized or de-centralized form of government is a political question with which the courts have nothing to do. Matters of general interest are not necessarily required to be submitted to the judgment and discretion of the people of the locality. So far as principle is concerned, it is no objection that the State, while imposing upon cities and towns the burden of supporting their police organizations, designates its own agencies to make its plan efficient. The essential elements of what is known as the metropolitan police system in the government of municipalities have been so often vindicated as against constitutional objections that the question should now be considered at rest. State, ex rel., v. Kolsem (1892), 130 Ind. 434, 29 N.E. 595, 14 L. R. A. 566; State, ex rel., v. Fox (1902), 158 Ind. 126, 56 L. R. A. 893, 63 N.E. 19; People v. Draper (1857), 15 N.Y. 532; People v. Shepard (1867), 36 N.Y. 285; People v. Mahaney (1865), 13 Mich. 481; People v. Common Council, etc. (1873), 28 Mich. 228, 15 Am. Rep. 202; Gooch v. Exeter (1900), 70 N.H. 413, 48 A. 1100, 85 Am. St. 637; Mayor, etc., v. State (1859), 15 Md. 376, 74 Am. Dec. 572; Commonwealth v. Plaisted (1889), 148 Mass. 375, 19 N.E. 224, 2 L. R. A. 142, 12 Am. St. 566; State v. Covington (1876), 29 Ohio St. 102; Police Com. v. City of Louisville (1868), 3 Bush 597; State, ex rel., v. St. Louis County Court (1864), 34 Mo. 546; State v. Hunter (1888), 38 Kan. 578, 17 P. 177; State, ex rel., v. Seavey (1887), 22 Neb. 454, 35 N.W. 228; 2 Cooley, Taxation (3d ed.), 1295, 1296; 1 Dillon, Mun. Corp. (4th ed.), § 60; 2 Smith, Mun. Corp., § 1378.

It is further contended that the act of 1897 amounts to an unlawful attempt to delegate a legislative power, in that, within maximum and minimum limits, it authorizes the Governor to determine the salaries of the police commissioners, and also, within fixed limits, authorizes the latter to determine the compensation of the officers of the police force. It must, of course, be admitted that the legislature may with propriety fix the salary which attaches to a public office, but whether a constitution contains an express division of the powers of government, or whether the division is to be implied from the framework of the instrument, we are of opinion that the fixing of the compensation of a public officer is not so inherently of a legislative character that it may not be delegated. The contention of counsel for appellant involves a misapprehension of the breadth of the grant to the General Assembly of power to enact laws.

In Wayman v. Sawthard (1825), 10 Wheat. 1, 6 L.Ed. 253, Chief Justice Marshall, said: "It will not be contended, that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But congress may certainly delegate to others, powers which the legislature may rightfully exercise itself." "The true distinction," as said in Cincinnati, etc., R. Co. v. Commissioners, etc. (1852), 1 Ohio St. 77, 88, "therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." As stated in Locke's Appeal (1873), 72 Pa. 491, 13 Am. Rep. 716: "The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the lawmaking power, and must, therefore, be a subject of inquiry and determination outside the halls of legislation." In was said in Dowling v. Lancashire Ins. Co. (1896), 92 Wis. 63, 68, 65 N.W. 738, 31 L. R. A. 112, that the general rule that legislative powers cannot be delegated must be understood as applicable only to cases where the discretion is essentially legislative. It was observed in State, ex rel., v. Kolsem (1892), 130 Ind. 434, 442, 14 L. R. A. 566, 29 N.E. 595, and followed in City of Terre Haute v. Evansville, etc., R. Co. (1897), 149 Ind. 174, 37 L. R. A. 189, 46 N.E. 77, that "when the legislature has the power over a subject, it is the sole judge of the means that are necessary and proper to accomplish the object it seeks to attain."

In the case last cited this court upheld the authority of the General Assembly to vest in persons occupying judicial offices the power to appoint city commissioners, and it has been held that the legislature may even make a private corporation an agency to carry out a regulation of government. Wilkins v. State (1888), 113 Ind. 514, 16 N.E. 192; Ferner v. State (1898), 151 Ind. 247, 51 N.E. 360. Indeed, it may be said that our recent cases have gone much further in recognizing the power of the General Assembly to delegate discretionary authority than is here involved, since they have upheld the right, under the statutes, of the State Board of Health to adopt reasonable rules, by-laws, and regulations to carry out the health laws of the State. Blue v. Beach (1900), 155 Ind. 121, 50 L. R. A. 64, 80 Am. St. 195, 56 N.E. 89; Isenhour v. State (1901), 157 Ind. 517, 87 Am. St. 228, 62 N.E. 40. As was stated in Blue v. Beach, supra: "It cannot be said that every grant of power to executive or administrative boards or officials, involving the exercise of discretion and judgment, must be considered a delegation of legislative authority. While it is necessary that a law, when it comes from the lawmaking power, should be complete, still there are many matters relating to methods or details which may be, by the legislature, referred to some designated ministerial officer or body." See, also, Field v. Clark (1892), 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294; Walker v. Towle, 156 Ind. 639, 53 L. R. A. 749, 59 N.E. 20; People, ex rel., v. Burr (1859), 13 Cal. 343; Leeper v. State (1899), 103 Tenn. 500, 53 S.W. 962, 48 L. R. A. 167; Reed v. Dunbar (1902), 41 Ore. 509, 69 P. 451; City of San Antonio v. Jones (1866), 28 Tex. 19, 32; 6 Am. and Eng. Ency. Law (2d ed.), 1029.

Authority is not wanting on the precise question in hand. In Gooch v. Exeter (1900), 70 N.H. 413, 48 A. 1100, 85 Am. St. 637, the court had before it the question of the validity of a statute which vested in a board of police commissioners, the members of which were appointed by the governor, the right to appoint police officers. In the course of the opinion the court said: "The pay of an officer is an incident of his office. Obviously, power 'to name and settle' an officer and set forth his duties includes power to fix his compensation. The general court may fix the compensation directly, or delegate authority to fix it to a governmental agency." See, also, 23 Am. and Eng. Ency. Law (2d ed.), 394.

It appears to us that it was wholly appropriate for the General Assembly to fix maximum and minimum limits of salaries of the various officers who were to be employed under the law in the cities of the State, leaving it to other agencies to exercise a degree of discretion in determining what salaries should, from time to time, obtain in the various cities to which the act applies.

We do not regard the decisions on which counsel for appellant rely as in point on the question in hand. The cases of State ex rel., v. Rogers (1904), 71 Ohio...