Overshiner v. State

• Decision Date: 15 February 1901
• Docket Number: 19,547
• Citation: 59 N.E. 468,156 Ind. 187
• Parties: Overshiner v. The State
• Court: Indiana Supreme Court

59 N.E. 468

156 Ind. 187

Overshiner v. The State

No. 19,547

Supreme Court of Indiana

February 15, 1901

From the Grant Circuit Court.

Affirmed.

J. A Kersey and A. E. Steele, for appellant.

W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley for State.

OPINION

Hadley, J.

Appellant was convicted of practicing dentistry without a license, or certificate of registration, in violation of the provisions of the act of 1899 approved March 6, 1899 (Acts 1899, p. 479). The section involved is in these words: "§ 2. A board of examiners consisting of five reputable practicing dentists shall be appointed on or before the last Tuesday of June, 1899, and biennially thereafter, one by the Governor, one by the state board of health, and three by the Indiana state dental association, said board to serve for the term of two years from the date of such appointment. When convened said board shall examine all applications, issue certificates thereon, and also may examine all applicants for certificates of qualification and issue such certificates to all such applicants as shall pass a satisfactory examination." Appellant assails the judgment upon the ground that the statute upon which it rests is violative of § 1, article 3; § 1, article 5; § 18, article 5, and § 3, article 6 of the State Constitution and the fourteenth amendment of the federal Constitution. Appellant admits that he practiced dentistry without the license required by the statute under which he is prosecuted and that the judgment is right if that statute is constitutional.

A statute upon the same subject and in all material respects the same as the one before us, Acts 1887, p. 58, § 2, (§ 5596 Burns 1894) was held to be constitutional in Wilkins v. State, 113 Ind. 514, 16 N.E. 192. In that case the point was made against the act, that the authority to appoint three members of the board of examiners was an enlargement of the corporate powers of the state dental association, by special law, in contravention of the Constitution. Again the same statute was held to be in harmony with § 23, article 1 of the Constitution forbidding the granting of privileges which shall not upon the same terms equally belong to all citizens. Ferner v. State, 151 Ind. 247, 51 N.E. 360. It is here asserted that the statute is bad for being in conflict with the various provisions of the Constitution above set out, the contention being that the appointment by the state dental association of three members of the board of examiners was void for want of authority in the legislature to confer the power of appointment upon a private corporation, or individual outside the executive department.

The power of the General Assembly to enact laws is subject to no restrictions save those imposed by the State and federal Constitutions. Hovey v. State, 119 Ind. 395, 21 N.E. 21; Lowe v. Board, etc., ante, 163. Its laws are presumed to be valid, and they are to be upheld by the courts, not only when clearly authorized, but in all cases of doubt, and until it is made clearly to appear that they contravene some constitutional provision. Courts will not, therefore, search the Constitution for express sanction, nor for reasonable implications, to sustain a legislative enactment, but the successful assailant must be able to point out the particular provision that has been violated and the ground upon which it has been unequivocally infringed. Robinson v. Schenck, 102 Ind. 307, 319, 1 N.E. 698; Hedderich v. State, 101 Ind. 564, 51 Am. Rep. 768; French v. State, 141 Ind. 618, 639, 29 L. R. A. 113, 41 N.E. 2.

We concede in fullest terms appellant's contention that our State government is composed of three distinct and coordinate branches, namely, the legislative, executive (including the administrative), and judicial, and that the powers committed by the people to one branch cannot be exercised by those performing duties in another without express authority to do so, or the exercise of such power becomes essential or appropriate to the effective discharge of the duties imposed upon such branch. And while it has been many times decided by this and other courts that, as a general rule, the power of appointment to office is an appropriate executive prerogative, yet, as said by Mitchell, J., in Hovey v. State, 119 Ind. 395, 21 N.E. 21, "It is a fundamental error, however, to assume that the exclusive right to exercise the power of appointment is included in the general grant of power to the executive." In the distribution of governmental power the people had the undoubted right to lodge any part of it where it pleased them, and when expressly placed the court will suffer no encroachment upon it by those acting in another department; but where the Constitution is silent and the question is one of public policy, or relates to the best means or agency for the attainment of some governmental end, it must be presumed that the framers of the Constitution intended to invest the legislative body with a large discretion in the selection of the agencies most suitable and beneficial to the public.

In People v. Hurlbut, 24 Mich. 44, 93, Cooley, J., says: "The legislature, in prescribing new rules, have necessarily a large discretion as to whether the agencies for putting them in force shall be named by themselves, or left to the selection of the executive."

That eminent expounder of constitutional law, Chief Justice Marshall, in McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, on page 421, 4 L.Ed. 579, says, with respect to the federal Constitution: "We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Relating to the same subject the celebrated author and jurist already quoted cites approvingly: "Where the Constitution contains no negative words to limit the legislative authority in this regard, the legislature in enacting a law must decide for itself what are the suitable, convenient, or necessary agencies for its execution." Cooley Const. Lim. (6th ed.), p. 134, note.

The Constitution is silent upon the subject of general appointments to office. It is provided by § 1, article 5, that "the executive powers of the State shall be vested in a Governor" and by section 18, article 5 "when, at any time, a vacancy shall have occurred in any other state office, [except appointment vested in the General Assembly] or in the office of judge of any court, the Governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified" and by § 1 article 15 that, "All...