Hovey v. State ex rel. Riley

Decision Date18 May 1889
Docket Number14,902
Citation21 N.E. 890,119 Ind. 386
PartiesHovey, Governor, v. The State, ex rel. Riley
CourtIndiana Supreme Court

Petition for a Rehearing Overruled June 20, 1889.

From the Marion Circuit Court.

Judgment affirmed.

L. T Michener, Attorney General, J. H. Gillett and A. C. Harris for appellant.

J. E. McCullough and L. P. Harlan, for appellee.

Elliott C. J. Berkshire, J., dissents for the reasons stated in City of Evansville v. State, ex rel., 118 Ind. 426. Coffey, J., also dissents.


Elliott, C. J.

The central question which this record presents is this: Is the relator, by virtue of his appointment by the General Assembly of the State, entitled to the office of trustee of the institution for the education of the blind? In our judgment he is.

That there is a class of officers that may be appointed by the General Assembly can not now be justly denied, and the only question which is still open to debate is, what officers belong to this class? It is our judgment that, in view of the provisions of the Constitution and the effect given them by practical exposition, the governing officers of all of the benevolent institutions of the State may rightfully be appointed by the General Assembly.

The Constitution contains provisions which, if they do not do more, do at least supply color for the claim of the right of the General Assembly to appoint the governing officers of the benevolent institutions of the State. It is neither necessary nor proper for us to decide as to the general extent of the legislative power to appoint to office, except in so far as it is incidentally involved in the disputed right to the offices of the class claimed by the relator. We are not here confronted with any question as to the right to a local office, or to a general administrative office, for here we have a controversy involving offices of a peculiar nature, the duties of which relate exclusively to institutions that it is made the duty of the Legislature to establish and maintain.

As there is some warrant in the Constitution for the claim of the legislative right to appoint the governing officers of the benevolent institutions, it is our duty to ascertain what practical exposition has been given to the Constitution, and if we find a principle established by long continued practice, we must yield to it, unless we are satisfied that it is repugnant to the plain words of the Constitution. We are far from asserting that the plain provisions of the Constitution may be broken down or overleaped by practical exposition, but what we do assert is, that where, as here, there are provisions not entirely clear and free from doubt, practical exposition is of controlling force.

Our own and other courts have time and time again adjudged that practical exposition is of controlling influence wherever there is need of interpretation. The language employed by the courts is strong, and the current of opinion is unbroken. In speaking of the effect of a practical exposition, it was said by an able court that: "It has always been regarded by the courts as equivalent to a positive law." Bruce v. Schuyler, 4 Gilm. 221. In adhering to long continued exposition, another court said: "We can not shake a principle which in practice has so long and so extensively prevailed." Rogers v. Gooden, 2 Mass. 478. But it is unnecessary to quote the expressions of the courts, for harmony reigns throughout the whole scope of judicial opinion upon this subject. Board, etc., v. Bunting, 111 Ind. 143, 12 N.E. 151; Weaver v. Templin, 113 Ind. 298, 301, 14 N.E. 600; Stuart v. Laird, 5 U.S. 299, 1 Cranch 299, 2 L.Ed. 115; Martin v. Hunter, 14 U.S. 304, 1 Wheat. 304, 4 L.Ed. 97; Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 5 L.Ed. 257; Ogden v. Saunders, 25 U.S. 213, 12 Wheat. 213, 290, 6 L.Ed. 606; Minor v. Happersett, 88 U.S. 162, 21 Wall. 162, 22 L.Ed. 627; State v. Parkinson, 5 Nev. 15; Pike v. Megoun, 44 Mo. 491; People v. Board, etc., 100 Ill. 495; State v. French, 2 Pinney (Wis.), 181.

Practical exposition establishes a principle. Particular instances fall within general rules, and practical exposition establishes general rules for the government of particular instances. Practical exposition does not give rights in particular cases, since to give it that effect would create an evil as great as that of class legislation, and against that evil is directed some of the strongest provisions of our Constitution. Courts must search for the general principle which practical exposition establishes, and, when that principle is discovered, apply it to all cases within its legitimate sweep. The science of jurisprudence is not made up of particular instances, nor can it be so constructed, for, if it be a science at all, it must be composed of principles. To us it is clear that what we have here to do is to find what principle has been established, and under that principle bring the particular instance.

The principle which the long continued practice has established is, that the General Assembly has the power to appoint the governing officers of all of the benevolent institutions, or at its option, authorize their appointment by some other department of the State government. This is the effect of the practice, and it is narrowing the effect of this practical exposition much beyond what reason and authority justify, to hold that it applies to some of the institutions and not to the others. We can not believe that the General Assembly may rightfully appoint the trustees of the hospital for the insane, and yet have no authority to appoint those of the institution for the education of the blind. That the General Assembly has power to appoint trustees of the latter institution has been expressly decided, and practical exposition has also asserted the same thing. The practice establishes a principle, if it establishes anything, that principle applies to a class of officers, and within that class are the officers of all of the benevolent...

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2 cases
  • Hovey v. State ex rel.Riley
    • United States
    • Indiana Supreme Court
    • May 18, 1889
  • Bd. of Election Com'rs of City of Indianapolis v. Knight
    • United States
    • Indiana Supreme Court
    • November 23, 1917
    ...to which my attention has been called, or which I have found, and it thus has the force of positive law. Hovey, Governor, v. State ex rel. Riley, 119 Ind. 388, 21 N. E. 890. I am not unmindful of the fact that it is argued herein that in placing in the Constitution the provision: “All town ......

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