Indianapolis Brewing Co. v. Claypool

• Decision Date: 05 November 1897
• Citation: 149 Ind. 193,48 N.E. 228
• Parties: INDIANAPOLIS BREWING CO. v. CLAYPOOL et al.
• Court: Indiana Supreme Court

149 Ind. 193

48 N.E. 228

INDIANAPOLIS BREWING CO.

v.CLAYPOOL et al.¹

Supreme Court of Indiana.

Nov. 5, 1897.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Action by the Indianapolis Brewing Company against Edward F. Claypool and others for an injunction. From a judgment in favor of defendants on failure of plaintiff to plead further after a demurrer to the complaint was sustained, plaintiff appeals. Reversed.

Monks and Jordan, JJ., dissenting.

Baker & Daniels, for appellant. James B. Curtis, for appellees.

McCABE, C. J.

The legislature of 1895 passed an act approved March 1, 1895, entitled “An act to establish a department of public parks in cities having more than one hundred thousand population, according to the last preceding United States census, and a board of park commissioners, defining the powers and duties of such board and matters connected therewith, and declaring an emergency.” Acts 1895, p. 63. The appellant brought suit against the appellees, who are the acting members of said board, and certain other officers appointed by the circuit court at the instance of said board, under the provisions of said act, to enjoin them from further acting by virtue of any authority conferred on them by said act. The circuit court sustained a demurrer to the complaint for want of sufficient facts; and, the plaintiff refusing to plead further or amend its complaint, the court rendered judgment that the plaintiff take nothing by its suit. That ruling is called in question by the assignment of errors, as the only error complained of by the appellant. The ground on which the complaint seeks an injunction is that the act is unconstitutional. The first section thereof provides, inter alia, that in all cities of 100,000 inhabitants, as shown by the last preceding United States census, in addition to the executive departments now established by law in such cities, there is hereby established, as one of the executive departments of such city, a department of public parks, which shall be under the control of a board of five members, to be appointed by the mayor of such city, to be known as the “Board of Park Commissioners,” and who are required to serve without compensation except their actual expenses. They are each required to take an ordinary official oath before entering upon the discharge of the duties of their offices, respectively. The second section provides that the first members of said board shall hold office, respectively, one, two, three, four, and five years from and after the 1st day of January, 1895, and annually thereafter the mayor shall appoint one such commissioner to hold office for the term of five years, beginning with the 1st day of January in the year of his appointment; and, if any vacancy occurs in said board by resignation or otherwise, the mayor shall appoint one or more commissioners for the residue of the term or terms. The complaint alleges, inter alia: That plaintiff is the owner of 10.50 acres of land within the corporate limits of the city of Indianapolis, which land is particularly described; and that the then mayor, the Honorable C. S. Denny, appointed the defendants Claypool and Perry and three other persons, namely, Frank A. Maus, William H. Leedy, and Henry Clay Allen, as board of park commissioners of said city, who all qualified by taking the official oath. That thereafter said Maus resigned, and said mayor appointed Sterling R. Holt in said Maus' place. That said Holt qualified in like manner, and he afterwards, upon the expiration of his term, was reappointed January 1, 1896. That said William H. Leedy resigned, and the then mayor, the Honorable Thomas Taggart, appointed in his place Albert Lieber, who qualified by taking the official oath, and upon the expiration of his term was reappointed January1, 1897. That thereafter the said Henry Clay Allen resigned as one of said board, and said last-mentioned mayor appointed, in the place of said Allen, William E. English, who also qualified by taking the oath of office. That Claypool's appointment dates from his qualification, April 20, 1895; Oren Perry's from March 13, 1895; Sterling R. Holt's reappointment from January 1, 1896; Albert Lieber's reappointment from January 1, 1897; and William E. English's appointment from December 11, 1896. That the respective terms of said appointees would expire under the statute and said appointments as follows: Edward Claypool on January 1, 1898; Oren Perry on January 1, 1900; Sterling R. Holt on January 1, 1901; Albert Lieber on January 1, 1902; and William E. English on January 1, 1899. That after said defendants had qualified as aforesaid, and assumed to discharge the duties and exercise the powers devolved on them by said act, they gave out that they will continue to exercise such powers as aforesaid, and they selected for the purpose of public parks, along with real estate of other owners, the real estate hereinbefore described, and, pursuant to said act, procured the Marion circuit court to appoint the defendants Joseph Flack, Charles E. Coffin, and Daniel Burton as assessors to assess damages and benefits to the owners of the property, aforesaid, proposed to be taken for public parks, and property beneficially affected by such public parks. That said assessors accepted said appointments, and, as provided in said act, they are now publishing in the Sun newspaper a notice to this plaintiff and the other owners of real estate to be affected, that they will on June 23, 1897, begin the assessment of said real estate for the aforesaid purposes. That the aforesaid park commissioners give out that, after said assessment shall have been made, they will proceed, in accordance with said act, to apply to the circuit court for the confirmation of such assessment, and thereupon to determine what, if any, part of the damages awarded shall be paid out of the funds set apart for the use of said board of park commissioners by the common council for such purpose, to the end that, in pursuance of section 22 of said act, the title of said real estate shall become fixed and vested in said city for the purposes of public parks. Similar allegations are made as to the assessment of benefits by said assessors. That said proceedings and acts of said board and said assessors are taken without warrant or authority of law, for the reason that said act of the legislature is unconstitutional and void.

The first reason urged for the unconstitutionality of the act is that it is an amendment of the act approved March 6, 1891, concerning the incorporation, etc., of cities of more than 100,000 population, and does not, as required by section 21 of article 4 of the constitution, set forth and publish at full length the act as revised or section as amended. But the recent case of State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, and cases there cited, settle the law that the statute in question was not an amendment of the act referred to. But a much more serious question is presented by appellant's contention that the act violates the last clause of section 2 of article 15 of our state constitution (Burns' Rev. St. 1894, § 224; Rev. St. 1881, § 224), providing that “the general assembly shall not create any office the tenure of which shall be longer than four years.” We approach the consideration and decision of that question fully impressed with the delicacy of the task, and that the well-settled rule that requires us to solve all doubts in favor of the action of the legislature is salutary and wholesome; and yet the solemn duty of declaring an act of the legislature, or a part thereof, void, because of its plain and unquestionable violation of an inhibition in the constitution, is equally imperative. To permit such an act or a part thereof to escape judicial condemnation, and to stand as law, is fraught with as much danger to the perpetuity of our republican form of government as the overthrow of statutes by judicial power merely because the court doubts their constitutionality. It appears from the facts stated in the complaint, and admitted by the demurrer, that only two of the present five members of the board of park commissioners have a term of office which does not exceed the constitutional limitation of four years. Three of them are serving on a five years' term, under section 2 of the act. If the legislature could not create such an office under the constitution, then there is no such office, and hence no such officer; and as was said in Clem v. State, 33 Ind., at page 423, “there was no warrant of law to elect or appoint one, and there could be no such officer de facto, much less de jure.” But counsel for appellees, admitting the force of the constitutional restriction and the case from which we have quoted, seeks to avoid such force by contending that that constitutional inhibition does not apply to the offices in question here, because the framers of the constitution had only in mind and therefore only meant the restriction to apply to such offices as were at that time in existence, and, there having been no such office then in existence nor in contemplation as park commissioners, they had no idea, as is contended, of limiting the tenure of such an office by the restriction mentioned. That argument proves entirely too much if it proves anything. If the framers of the constitution only meant the restriction to apply to offices then in existence, it is fair to say that it was not intended to apply to any, because the restriction is that the general assembly shall not create any office, etc. The creation of a thing already in existence is an impossibility. It is not likely that the framers of the constitution meant to provide for such an absurdity. They meant just what they said, and said just what they meant, namely, that the legislature “shall not create any office the tenureof which shall be longer than four years.” That language embraces every office the legislature could...