French v. State ex rel. Harley
| Decision Date | 13 June 1895 |
| Docket Number | 17,617 |
| Parties | French v. The State, ex rel. Harley |
| Court | Indiana Supreme Court |
From the LaPorte Circuit Court.
The judgment is affirmed.
G. V Menzies and J. R. Wilson, for appellant.
W. A Ketcham, Attorney-General, and M. Moores, for appellee.
On the 12th day of March, 1895, the Governor appointed and commissioned Henry A. Barnhart, Munford D. Yontz and Henry A Root, members of the board of prison directors for the prison north of the State of Indiana. After taking an oath of office and executing bonds, the gentlemen named, organized as such board, and on the 19th day of March, 1895, selected and appointed appellant to the position of warden of said prison. The appellant qualified, gave bond and continued in the possession and discharge of the duties of said position, he having served in said position the two years immediately preceding said appointment. By the second section of the Act of the General Assembly of March 7, 1895, the Governor auditor, treasurer, secretary of State and attorney-general were constituted a board for the selection of prison directors. That board, on the 12th day of March, 1895, appointed Enos H. Nebeker, Robert S. Foster and Henry Van Voorst as members of the board of prison directors for said northern prison, and, after qualifying and giving bonds and taking an oath of office, they organized as the board of prison directors, and, on the 19th day of March, 1895, appointed the relator, Charles Harley, as warden for said prison. The relator having qualified and given bond, demanded from the appellant the position, books and records of such warden, and the appellant having refused said demand, the relator brought this suit to oust the appellant from, and to establish himself in, said position.
The sufficiency of appellee's petition, and the sufficiency of appellant's answer, to which the lower court sustained the appellee's demurrer, raise the question for decision in this court.
The constitutional validity of said section 2, Acts 1895, p. 160, is challenged by the appellant. The section is as follows:
The principal contention of appellant's learned counsel is that, under the constitution, section 1, art. 5, "The executive powers of the State" are "vested in" the "governor"; that appointment to office is an executive function, and that the constitution does not, expressly or by implication, deny the exercise of this function to the Governor. If this power was so lodged, in violation of the constitutional authority of the Governor, it is insisted, and follows, of necessity, the appointment of the directors, and, in turn, their appointment of the relator were invalid. The constitutional provisions upon which the issue rests, in addition to that vesting the executive power of the State in the Governor, are as follows: "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 the departments shall exercise any of the functions of another, except as in this constitution expressly provided." Section 1, article 3. "All officers whose appointments are not otherwise provided for in this constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law." Section 1, article 15.
In ascertaining the intention expressed in these sections it will be necessary to examine other sections, which will be set forth hereafter. Our first inquiry is directed to the question, was it intended by the constitution to confer upon the Governor all appointing power? This inquiry need not be extended to the appointment of local administrative officers, nor to judicial officers, nor to the mere agencies by which the various departments, legislative, executive and judicial, perform their separate duties and functions, since that would carry our investigations over unnecessary and undisputed grounds. One method of answering the general inquiry is to ascertain if, by the constitution, it was intended to give the power of appointment, in any instance, to the legislative branch of the Government.
By section 18, article 5, it is provided that "When, during the recess of the General Assembly, a vacancy shall happen in any office, the appointment to which is vested in the General Assembly," etc., clearly implying that there was some office, or class of offices, the appointment to which was vested in, or intended, should be made by the General Assembly.
By section 30, article 4, it is provided that "No senator or representative shall, during the term for which he may have been elected, be eligible to any office, the election of which is vested in the General Assembly." If the word election is employed synonymously with appointment, this provision implies, with equal force, the existence of power in the General Assembly to make appointments to office. If we conclude that the italicized words in these sections were put into the constitution without purpose and without meaning we but engage in making over that sacred instrument, and we condemn its framers for creating a mere medley of words. This we could not do if we would, for it is the function of the judiciary to interpret, to expose the meaning within the words of the constitution, and not to put meaning into the words, nor to eliminate sentences, phrases or words, nor to add to the terms written. We find in the constitution no other provision to which the two provisions last quoted could have been directed, excepting that found in section 1, article 15, supra.
Without having been directed to some other provision supplying the offices to be filled by the General Assembly, there is but one of two possible contingencies to be accepted: the constitution is framed in meaningless and confused language, or the words of section 18, article 5, supra, "the appointment to which is vested in the General Assembly," and probably the same words from section 30, article 4, supra, had reference to the "officers whose appointments are not otherwise provided for in the constitution," in section 1, article 15, supra.
It is insisted, however, that section 1, article 15, supra, does not give the power to the General Assembly to appoint, and that the language of the section, "in such manner as now is, or hereafter may be, prescribed by law," simply confers the power upon the Legislature to provide the manner of appointment and not to make the appointment. The consistency of the appellant's position requires the conclusion that all power to appoint to office is in the Governor; that the Legislature possesses only the power to provide the manner of appointment, and that such manner is limited to a provision that the Governor shall make it. It would seem to have been a remarkable conception of a constitutional convention to have written it down that the Legislature shall prescribe by whom appointments shall be made, but it shall be prescribed that the Governor shall make them. This conception, if written in the constitution, would be no more absurd than to have written it in part and left it in part to what the appellant insists a necessary implication. This theory does not relieve us of the embarrassment of finding repeatedly the expressions of the convention in the constitution, that there are "offices, the appointment to which is vested in the General Assembly." Such a theory would strike these words from the constitution or would render them barren and meaningless.
We need not ascertain and define the limits and extent of the appointing power of the Governor, nor is it necessary that we should take issue with the cases holding that the appointing power is naturally and properly an executive function. If the constitution has conferred upon the legislative department of the Government functions which naturally and more properly belong to another it is not for us to say that the people could not have done so nor that the unwisdom of doing so will permit us to assign to the proper departments their proper functions, and thereby do correctly for the people that which the framers of the constitution did erroneously.
It is insisted that the former decisions of this court deny the power, under the constitution, of the General Assembly to appoint to office and declare the power to appoint as existing in the Governor. City of Evansville v State, ex rel., 118 Ind. 426, 21 N.E. 267; State, ex rel., v. Hyde, 121 Ind. 20, 22 N.E. 644; State, ex rel., v. Denny, mayor, 118 Ind. 382; State, ex rel., v. Denny, mayor, 118...
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