Hovey v. State ex rel. Carson

Decision Date20 April 1889
Docket Number14,846
Citation21 N.E. 21,119 Ind. 395
PartiesHovey, Governor, v. The State, ex rel. Carson
CourtIndiana Supreme Court

Petition for a Rehearing Overruled June 20, 1889.

From the Marion Circuit Court.

The judgment is affirmed, with costs.

L. T Michener, Attorney General, J. H. Gillett, A. C. Harris, W H. Calkins, F. Winter, R. O. Hawkins, C. F. Griffin and W. L Taylor, for appellant.

J. E. McCullough and J. T. Hays, for appellee.

Mitchell, J. Berkshire, J. Coffey, J. Olds, J.


Mitchell, J.

The judgment from which the present appeal is prosecuted requires the appellant, as Governor of the State of Indiana, to issue to the relator, Joseph L. Carson, a proper commission as one of the trustees of the Indiana Hospital for the Insane. The affirmance or reversal of this judgment depends almost wholly upon the answer that shall be given to the inquiry whether or not the General Assembly is, or can be, under the Constitution, invested with the power to appoint trustees for the government of the various benevolent institutions of the State. The relator affirms the existence of the power, and that it has been duly exercised in his appointment, while the Governor challenges the power of the General Assembly to make the appointment, and asserts, moreover, that the law under which the relator was appointed was not constitutionally authenticated, and for that reason never became a valid enactment.

It may aid in arriving at a proper conclusion to recur briefly to the legislative history of the benevolent institutions of the State, so far, at least, as it relates to the hospital for the insane. The Constitution under which the State government was organized in 1816, made it the duty of the General Assembly "to provide one or more farms, to be an asylum for those persons who, by reason of age, infirmity, or other misfortunes, may have a claim upon the aid and beneficence of society." Sec. 4, art. 9. Pursuant to the duty thus enjoined, the General Assembly, by an act approved January 13th, 1845, created a board, consisting of three commissioners, who were named in the act, and who were directed to select and purchase a suitable tract of land upon which to locate a "State lunatic asylum." They were authorized to receive subscriptions and donations, and to advertise for plans and receive proposals for the erection of suitable buildings, and were required to report to the General Assembly at its next meeting. On January 25th, 1847, five commissioners were appointed by the General Assembly to succeed those previously appointed. By an act approved February 15th, 1848, it was declared that there should be six commissioners of the Indiana Hospital for the Insane, whose term of service should be six years from the date of their appointment, "to be elected by the joint viva voce vote of the General Assembly." This latter act, which prescribed the duties of the commissioners, and made provision for the government of the institution, was in force during the session of the constitutional convention and when the revised Constitution adopted in 1851 took effect. Section 1 of article 9 of the present Constitution reads as follows: "It shall be the duty of the General Assembly to provide, by law, for the support of institutions for the education of the deaf and dumb, and of the blind, and, also, for the treatment of the insane."

The first Legislature that assembled after the revised Constitution was adopted, in obedience to the mandate above set out, enacted laws providing for the support and government of the benevolent institutions of the State. It was provided that six commissioners of the hospital for the insane were to be elected by the joint vote of the General Assembly, three of whom were to serve two years, and three four years, and until their successors were elected by the General Assembly. These commissioners were entrusted with the general control and management of the hospital. They were authorized to appoint a superintendent, matron, and such assistant physicians, stewards and other officers as were necessary to take charge of the patients and hospital, and for the efficient administration of the affairs of the institution. Act approved January 15th, 1852, 1 G. & H., p. 378.

From the initiatory step in the organization of a hospital for the insane in 1845, until the adoption of the present Constitution, and from thence until the enactment of the law approved March 6th, 1879, under various statutes, the General Assembly appointed the commissioners or trustees, as they are called interchangeably, of the hospital for the insane of the State. The act last above named conferred the power on the Governor, by and with the consent of the Senate, to appoint trustees, but this last act was repealed in February, 1883, when it was again provided that the trustees should be elected by the General Assembly. By the act of March 5th, 1889, under which the present controversy has arisen, some changes were made in the plan for the constitution and organization of the several boards, and provision was made as before for the election of the trustees by the joint vote of the General Assembly. Under the provisions of this latter act the relator claims to have been elected. It thus appears that from the organization of the hospital for the insane of the State, under the old Constitution and the new, every Legislature that has assembled, with possibly two exceptions, has, without challenge hitherto, asserted the right to create boards and appoint officers for the government of this institution.

The constitutional power of the General Assembly having been challenged by the chief executive of the State, the duty now rests upon the court to consider the questions involved, with that degree of caution and deliberation which their magnitude and the abiding consequences which depend upon their proper solution imperatively demand. Representing one of the co-ordinate departments of the State government, acting under the solemn sanction of official obligation, and realizing that the duty which confronts the court is no less than that of sitting as arbiter to determine a question of power in contention between the General Assembly and the chief executive, representing, respectively, and under equally solemn sanctions, the other great departments of the government under which we live, we are admonished that the gravity of the situation is such as demands our most thoughtful and dispassionate consideration.

At the outset, it is to be remembered, that the authority of the Legislature in the enactment of laws is subject to no restrictions, save only those imposed by the Constitution of the State, the Constitution of the United States, and the laws and treaties made in pursuance thereof; that in construing a statute it is to be done with a view to uphold it, if that is fairly possible, and that if it be of doubtful constitutionality, the doubts are to be resolved in favor of the enactment. Beauchamp v. State, 6 Blackf. 299; Hedderich v. State, 101 Ind. 564.

That feature of our State Constitution, which is conspicuous in the organic law of every State of the Union, as well as in the Constitution of the United States, and which distributes all governmental powers into three departments, is appealed to as a foundation for the argument against the power of the General Assembly to make the appointments in question. Article 3 of the Constitution divides the powers of government into three separate departments--the legislative, the executive, including the administrative, and the judicial, and it declares that "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." Taking this general distribution of powers among the different departments as a basis, and relying upon those provisions of the Constitution which vest the executive, legislative and judicial powers, respectively, in the Governor, the Legislature and the courts, the argument by which the invalidity of the law is sought to be maintained, following general definitions of what constitutes executive, legislative and judicial power, is to this effect: The power to make appointments to office is essentially and intrinsically an executive function; legislative power is the power to enact, alter and repeal laws; while judicial power is the power to construe and interpret the Constitution and laws, and to render judgments and make decrees determining private controversies. Hence, while it is not explicitly asserted, the conclusion to which the argument, if it be well founded, necessarily leads is, that the appointing power is an executive prerogative, which can not be interfered with or exercised by the General Assembly or any other department of the government in the absence of express authority to that end.

It is universally regarded as one of the chief excellences of our system, that the departments of government are required to be separate, and that the several branches are, in most respects, practically independent of each other. It has accordingly become an established rule of constitutional law that where general power has been confided to, or vested in, one department of government, persons entrusted with power in another department will not be permitted to encroach upon the power of, nor exercise functions which pertain and are appropriate to, the other department, unless the authority to do so is conferred in express terms, or unless the exercise of the power becomes necessary and appropriate in order to discharge other constitutional duties and functions expressly committed to it. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; People v. Keeler, 99 N.Y. 463. It is a...

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