State ex rel. Black v. Burch

• Decision Date: 22 July 1948
• Docket Number: Nos. 28433-28436.,s. 28433-28436.
• Citation: 80 N.E.2d 560,226 Ind. 445
• Parties: STATE of Indiana ex rel. Clyde R. BLACK et al., Appellants, v. Alvan V. BURCH, as Auditor of the State of Indiana, Appellee.
• Court: Indiana Supreme Court

226 Ind. 445

80 N.E.2d 560

STATE of Indiana ex rel. Clyde R. BLACK et al., Appellants,

v.Alvan V. BURCH, as Auditor of the State of Indiana, Appellee.

Nos. 28433-28436.

Supreme Court of Indiana.

July 22, 1948.

Appeal from Marion Circuit Court; Floyd W. Burns, Special judge.

Dissenting opinion.

For majority opinion see 80 N.E.2d 294.

EMMERT, Judge (dissenting opinion).

I agree with the majority opinion that the relators, Clyde R. Black, Elmer C. Weller, Charles T. Miser and Beecher Conrad, are employees of the state who do not ‘perform any official functions in carrying out their duties in these respective jobs;’ but I feel compelled to dissent from the absurd result and the reasoning by which it is reached, which holds that each relator, as an employee, was violating § 1 of Article 3 of the Constitution of Indiana. Such result in itself violates this provision requiring separation of governmental powers by constituting this court a self-appointed guardian of the ethics of the members of the Legislature and of the executive department of this state. It is most dangerous for this court to adopt a policy of balancing the interests, which is properly used in extending the growth of the common law, as a basis for interpretation of a constitutional provision, by reasoning that whatever should be the Constitution, therefore is the Constitution for the purpose of a particular state of facts. Words and meaning become so elastic that the Constitution can mean anything, depending upon the varying concepts of constitutional power and authority entertained by a temporary majority of the court, which causes the Constitution in this case, if precedents have any force whatever, to mean one thing when applied to an employee of the state, something else to an employee of a political subdivision of the state, and something entirely different on a question a legislative function as delegated to an administrative authority or agency. Nor will it do to say the relators should hold but one governmental position at a time. Unless the Constitution prohibits their acts, as it does dual office holding by § 9 of Article 2 of the Constitution, such a public policy is one to be enacted by Law of the Legislature and not by any judicial legislation of this court. The Legislature had adopted a statute prohibiting nepotism,¹ but it would be a usurpation of legislative power for this court by decision to declare nepotism forbidden by the Constitution. But there far more is involved than the positions held by these relators or the compensation claimed. The interpretation given becomes a precedent for the conduct of state government, and the future ability of the state to meet the varying problems of a changing economy and society may be hamstrung thereby.

The American principle of separation of the powers of government into legislative, executive and judicial departments has caused difficulty when considered by the courts, both federal and state, because in practical operation it has been found imposible to separate the powers and maintain a high and impenetrable wall which prohibits any coordinate cooperation for the ends of government. The specific provision separating the powers of government in the Indiana Constitution of 1851 is contained in § 1, Article 3, which provides:

‘The powers of the Government are divided into three separate departments: the Legislative, the Executive (including the Administrative), and the Judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another except as in this Constitution expressly provided.’

The controversy arises over the meaning of the word ‘function,’ and the history of its adoption is of value in determining the meaning of the term.

Article 2 of the 1816 Constitution of Indiana separated the powers as follows:

‘The powers of the Government of Indiana shall be divided into three distinctdepartments, and each of them be confided to a separate body of magistracy, to-wit; Those which are Legislative to one, those which are Executive to another, and those which are judiciary to another; And no person or collection of persons, being of one of those departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.’

The committee on miscellaneous provisions in the Constitutional Convention of 1851 referred to the convention for its adoption the same paragraph as the Constitution of 1816. On Friday, January 31, 1851, this section was passed on second reading and was referred to the Committee on Revision, Arrangements and Phraseology. This committee was composed of the chairmen of the various other committees with the distinguished Robert Dale Owen of Posey County as its chairman. It was numbered Section 55 at the time it was referred to the committee. However, when it was reported back by the Committee on Revision, Arrangements and Phraseology it was placed in the Constitution as § 1 of Article 3, and the language had been changed to its present form, supra.

Article 3 as finally adopted was less broad in its scope than Article 2 of the 1816 Constitution. The words ‘And no person or collection of persons, being of one of those departments,’ had been changed to ‘and no person charged with official duties under one of these departments,’ (italics added) which made it clear that the drafters were concerned with official duties of the state. The word ‘duties' is more broad than powers, because the power may exist without a duty, but a duty would not exist without the power being implied to execute the same. In order to avoid redunancy the words ‘official duties' are not repeated, but the word ‘functions' was used. The forefathers were too practical to have intended by the use of the ambiguous word ‘functions' to hamstring the operation of state government. Our form of government was modeled after the federal Constitution, and there had already been decisions by the United States Supreme Court that the separation of powers meant the separation of exclusive and necessary official powers. In State ex rel. Yancey v. Hyde, 1889, 121 Ind. 20, 25, 22 N.E. 644, 646, this court held, in dealing with the power of appointment that: ‘The word ‘function,’ as here used, means ‘duty,’ and the clause may be read: ‘And no person charged with official duties under one of these departments shall exercise the duties of another, except as in this constitution expressly provided.’ This constitutional provision is easily understood; it is clear and concise in expression.' Other decisions hereinafter noted by their holding make it clear that the prohibition was against an exclusive and necessary exercise of official power and duty of the state. This construction is further supported by the fact that the first clause of the article divides ‘powers of the Government.’ Of course any ‘power of government’ is an official power.

The proceedings of the convention itself give a practical construction of the 1816 Constitution on separation of powers. Jacob B. Chapman, one of the delegates from Marion County, was the state printer, which fact he early called to the attention of the convention in connection with the controversy which arose as to whether or not he was entitled to do printing for the convention. I Convention Debates, 1850, p. 22. He claimed to be an officer of the state, and later this court in Ellis v. State, 1852, 4 Ind. 1, 3, said: ‘It was competent for the legislature to make the state printer an officer, and we think they have done so in this state.’ No question was ever raised that the state printer was ineligible to sit in the Convention of 1850 or that by reason of the separation of powers he as state printer was an administrative officer and so ineligible to act in a legislative capacity by being a participating member in the Constitutional Convention. If the position be taken that the Constitutional Convention of 1850 was not a part of the legislative department strictly speaking, yet its work was legislative in character, and there was never any question raised in the convention that the state printer was acting in any unethical manner in voting on all other matters except the determination of who should do the printing for the convention.

Within ten years after adoption of the Constitution of 1851 this court had squarely presented for its consideration a case involving the separation of governmental powers. The Special Session of the General Assembly of 1861 passed an act appropriating $1,000,000 to defray the expenses growing out of the Civil War. The act provided for the appointment of a committee consisting of two members of the House and one of the Senate, designated as an ‘Auditing Committee’ who were to meet at Indianapolis monthly and examine and audit the accounts of the Commissary General and Quartermaster General, and the Auditor of State was prohibited from paying any of the accounts until approved by this committee. The Auditor of State refused to issue a warrant for the compensation as provided by the statute for a member of the committee. The court held members of the Auditing Committee were not officers within the meaning of the Constitution and that the auditing to be done by the committee was not prohibited by § 1 of Article 3 of the Constitution. Although the court did not state its reason for holding this article was not violated, it was an interpretation by this court, whose members were contemporaries of the Constitution, that a legislative committee could properly perform an administrative act as a condition precedent to the Auditor of State drawing his warrant upon the funds.²Branham v. Lange, 1861, 16 Ind. 497.

Even before the Branham case, supra, this court construed § 1 of Article 3 as applying only to state government. By statute the mayor of Indianapolis was judge of the city court with the jurisdiction and powers of a justice of the...