City of Evansville v. State ex rel. Blend

Citation118 Ind. 426,21 N.E. 267
PartiesCity of Evansville et al. v. State ex rel. Blend et al.
Decision Date24 April 1889
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Mitchell, J., dissenting.

Appeal from circuit court, Vanderburgh county; R. D. Richardson, Judge.

H. A. Mattison, Gilchrist & De Bruler, and D. B. Kumler, for appellants. J. S. & C. Buchanan and Philip W. Frey, for appellees.

BERKSHIRE, J.

The complaint filed by the appellee alleges that the legislature of the state of Indiana passed an act, which became a law on the 7th day of March, 1889, pursuant to which the relators were elected and duly qualified as members of the metropolitan police and fire board for the city of Evansville, with full power and control over the police and fire departments and police department of said city, and with full control over the property and records of said city belonging to the said departments. It is alleged that the appellants refuse to recognize the authority of the relators, and refuse to turn over said property and records to them and the prayer is for a writ of mandate to compel the appellants to recognize the authority of the appellees, (relators,) and requiring them to turn over the property of the city, together with the records belonging to the police and fire departments of the city. An alternative writ issued, to which two returns were made. The city of Evansville, John H. Dannettell, mayor of said city, Harry S. Bennett, John B. Uphaus, Thomas J. Graves, John H. Stockfleth, William Koelling, George Koch, William Heyns, Albert C. Rosenscrans, Frederick J. Scholtz, William W. Ross, and Albert Johann, members of the common council, made one return. Alexander H. Foster, Edward E. Law, and Adolph Goeke, members of the metropolitan police board, and George W. Newitt, the superintendent of the police department, made the other. The court sustained demurrers to the returns, and a peremptory writ was ordered for want of a sufficient return. It is disclosed in the record that the city of Evansville received its charter from the legislature on the 27th day of January, 1847, and that by the charter the common council was given the control and management of the finances and of all the property of the city, and was authorized to purchase fire-engines and fire apparatus; to organize fire companies and to regulate and govern them; and that under and by virtue of its charter the said city has established a fire department, and the common council has managed the same for 40 years, and acquired property for the use of said fire department to the value of $100,000.

The record presents the following questions for consideration, all of which relate to the validity of the act of March 7, 1889, and upon the determination of which the rights of the parties depend: (1) Is the act in violation of section 21, art. 4, of the constitution, which provides that no act shall be revised or amended by reference to its title, but that the act revised and section amended shall be set forth in full? (2) Is the act in violation of section 19, art. 4, which requires that every act shall embrace but one subject, and matters properly connected therewith? (3) Is the act in violation of section 23, art. 4, which provides that where a general law can be passed it shall be general, and operate uniformly throughout the state? (4) Are the commissioners composing the metropolitan police and fire board officers who require commissions from the governor to authorize them to qualify and enter upon the duties of their offices? (5) Is the act properly authenticated, or rather, is there competent evidence of its having received such legislative sanction after having received the governor's disapproval, as to make it a law, if otherwise constitutional? (6) Is the act in violation of section 23, art. 1, of the constitution, which provides that the general assembly shall not grant privileges or immunities to any citizen or class of citizens which, upon the same terms, shall not belong to all citizens? (7) Is the act in violation of the constitution in that it deprives the people of the city of Evansville of the right of local self-government? (8) Is the act in violation of the constitution in so far as it gives to the legislature the power to appoint the commissioners composing the metropolitan board, and conferring upon the board the power to appoint inferior officers, and employ patrolmen, firemen, etc.? Since the appeal was taken it has been dismissed as to the city of Evansville, but this makes no difference in the consideration and determination of the case.

The title of the act is as follows: “An act providing for a board of metropolitan police and fire department in all cities of this state of twenty-nine thousand inhabitants, according to the United States census of 1880, and prescribing how the first members of said boards shall be elected and commissioned, and how their successors shall be appointed; providing for the organization of the board, defining the duties of the commissioners composing the board and of the boards; providing for the appointment of a superintendent, officers, patrolmen, and other members of the police force, and for the appointment of a chief fire engineer, officers, firemen, and other employés of the fire department of such cities, and the manner of paying them for their services; giving said board full authority over the fire department of said cities, and authorizing the board to purchase all supplies, engines, ladders, wagons, horses, and all equipments for said fire department, and prescribing how the bills for the same shall be audited, certified, and paid; providing for the abolition of existing boards of police and fire department of such cities; repealing all laws in conflict with this act, especially an act providing for a metropolitan police in all cities of twenty-nine thousand inhabitants, etc., (Acts 1883, page 89,) and declaring an emergency.” Section 1 of this act provides that in all cities of this state where the population equaled 29,000, according to the census of 1880, as taken by the United States government, there shall be established a metropolitan board of police and fire department, to consist of three commissioners; the members of the first board to be elected by the general assembly, one of whom shall be of the opposite party to the other two; the secretary of the senate and speaker of the house of representatives to furnish a certificate of election to each commissioner, which is to be his authority to act as a member of the board. The said commissioners must have been residents of their respective cities for five years preceding their election. Section 2 gives the board power to elect a secretary and property clerk, and requires him to give bond in such an amount, and with such sureties, as the board may see proper to require, and he shall receive such compensation as the board may fix, not to exceed $1,500 per annum, and hold his office at the pleasure of the board. Section 3 provides that the board shall have power to select a superintendent of police, captains, sergeants, detectives, and such other officers and patrolmen as the board may deem advisable. These are to be selected equally between the two leading political parties of said city. These persons are to receive such compensation as the board shall determine,-the superintendent not less than $1,000 nor more than $2,000, a captain not less than $700 nor more than $1,200, a sergeant not less than $600 nor more than $1,000, a patrolman not less than $550 nor more than $800, per annum. The compensation for all other officers and employés shall be fixed and determined by the board, not to exceed $1,000 per annum. The board is empowered to remove or suspend all officers and persons employed on either force at any time. Section 4 gives full control of both departments to the board, and the custody and control of all property, including station-houses, city prisons, patrol wagons, books, records, and equipments belonging to the police department; all engine-houses, engines, laddders, hose-reels, horses, wagons, books, records, and all equipments and property of every description belonging to the fire department. Section 5 provides that the board shall, immediately after its organization, assume and exercise the entire control of the fire department, and employ a chief fire engineer at a salary not to exceed $2,000 per annum, and all necessary employés of the fire department, and fix their compensation, and that they shall be selected equally between the two leading political parties of the city. Section 6 provides that it shall be the duty of the board of aldermen and board of common council, where there are the two, and, where but one, the duty of the common council, to provide, at the expense of the city, all necessary accommodations within the city limits for station-houses, hook and ladder houses, to furnish the same, to warm and light the same, and to furnish food for persons in the station-house; to provide, at the expense of the city, for the expense of the fire department incurred in the purchase of engines, ladders, hose, horses, or other necessary equipments ordered by said board, and for all expense incurred by said board in administering the fire department of said city; also for such office expenditures, records, books, stationery, printing, furniture, and for the preservation, repair, and cleaning of all buildings belonging to or in any way connected with the police and fire departments of the city. It is then expressly provided that it is the intention and meaning of the act that all necessary expense of executing the duties imposed on the board and maintaining the two departments, and which the board alone is authorized to incur, shall be a charge upon the city. All expenditures are to be audited by the board, certified to as correct by its president and secretary, and at the close of each month deposited with the city clerk, who shall lay the...

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