State ex rel. City of Terre Haute v. Kolsem

• Decision Date: 17 December 1891
• Docket Number: 16,249
• Citation: 29 N.E. 595,130 Ind. 434
• Parties: The State, ex rel. City of Terre Haute, v. Kolsem et al
• Court: Indiana Supreme Court

29 N.E. 595

130 Ind. 434

The State, ex rel. City of Terre Haute, v. Kolsem et al

No. 16,249

Supreme Court of Indiana

December 17, 1891

Petition for a Rehearing Overruled Feb. 20, 1892.

From the Vigo Superior Court.

Judgment affirmed.

R. B Stimson, S. C. Stimson, A. M. Higgins, A. C. Harris and L Cox, for appellant.

J. D. Early, J. Jump, J. E. Lamb, J. G. McNutt and S. R. Hamill, for appellees.

Elliott, C. J. McBride, J. Olds, J.

OPINION

Elliott, C. J.

A preliminary question, arising upon the contention of counsel that the appellees are barred from prosecuting this action, first requires consideration. The facts upon which counsel plant themselves are, in substance, these: The relator filed an information in the nature of a quo warranto against the appellees, asserting that they had entered into the office in controversy without right. The trial court sustained the relator, and gave judgment in its favor. The appellees prayed an appeal, but took no further steps to effect an appeal. Subsequently the appellees brought this suit to review the judgment, and obtained the relief they sought. If the appellees had perfected their appeal, there could be no doubt that the case would have been entirely removed from the jurisdiction of the trial court, and that court could not have entertained a bill to review the judgment pending the appeal. Allen v. Allen, 80 Ala. 154; Boynton v. Foster, 7 Metcf. 415; Mitchel v. United States, 9 Pet. 711; Ensminger v. Powers, 108 U.S. 292, 27 L.Ed. 732, 2 S.Ct. 643 (309); Burgess v. O'Donoghue, 90 Mo. 299. But here there was no appeal, for this court never acquired jurisdiction. Holloran v. Midland R. W. Co., 129 Ind. 274, 28 N.E. 549. As there was no appeal, jurisdiction was not vested in this court, and the trial court did not err in entertaining jurisdiction of the bill of review.

The controversy grows out of the claim made by the appellees to the office of police commissioner of the city of Terre Haute, to which they assert title under the act of March 4th, 1891. Acts of 1891, p. 90. The relator denies their right to the office, affirming that the act under which they assert title is invalid, because it violates the provisions of the Constitution.

The power of the Legislature to provide for the appointment of members of a municipal board of police has been affirmed in every instance in which it has been so challenged and presented as to require the judgment of the courts. Those courts which hold to the doctrine that control of matters of purely local concern can not be taken from the people of the locality place their decisions upon the ground that the selection of peace officers is not a local matter, but is one of State concern, inasmuch as such officers belong to the constabulary of the State. But while the reasoning of the courts is diverse, the ultimate conclusion reached by all the cases is the same. City of Indianapolis v. Huegele, 115 Ind. 581, 18 N.E. 172; State, ex rel., v. Denny, 118 Ind. 382, 21 N.E. 252; State, ex rel., v. Denny, 118 Ind. 449, 21 N.E. 274; City of Evansville v. State, ex rel., 118 Ind. 426, 21 N.E. 267; State, ex rel., v. Blend, 121 Ind. 514, 23 N.E. 511; People, ex rel., v. Draper, 15 N.Y. 532; People, ex rel., v. Shepard, 36 N.Y. 285; People, ex rel., v. Mahaney, 13 Mich. 481; State, ex rel., v. Covington, 29 Ohio St. 102; Police Commissioners v. City of Louisville, 3 Bush 597; State, ex rel., v. Hunter, 38 Kan. 578, 17 P. 177; Mayor, etc., v. State, ex rel., 15 Md. 376; State, ex rel., v. Seavey, 22 Neb. 454, 35 N.W. 228.

In our judgment the act here assailed may be upheld upon the ground that it does not trench upon the right of local self-government. We put our decision on this point upon the principle that in providing for the appointment of officers connected with the constabulary of the State there is not an invasion of the right of local self-government, but simply the exercise of the power to provide for the selection of peace officers of the State.

A municipal corporation is not clothed with any vested right in a public office; nor, indeed, does it possess a vested right in public property. It has been long and firmly settled that the charters of public corporations may be repealed or altered as the Legislature, in the exercise of its constitutional powers, deems proper. Sloan v. State, 8 Blackf. 361; Meriwether v. Garrett, 102 U.S. 472, 26 L.Ed. 197; Coffin v. State, ex rel., 7 Ind. 157; 1 Dillon Municipal Corp. (4th ed.), sections 61, 63, 71. See, also, authorities collected in Elliott Roads and Streets, p. 320.

The rule stated by us fully and effectually disposes of the argument of counsel that the act is void because it impairs the vested rights of the city of Terre Haute, as it is quite clear that in transferring property and authority from one class of officers to another no vested right of the municipality was invaded.

The act contains this provision: "That in all cities having an enumeration of children between the ages of six and twenty-one years, of 14,000 and over, as shown by the official returns of such enumeration, made by the several county superintendents of this State to the superintendent of public instruction, for the year 1890, there shall be established within and for said city, a board of metropolitan police, to consist of three commissioners, to be appointed by the Governor, secretary, treasurer and auditor of state, or a majority of them." The appellant's counsel argue, with signal ability, that the Legislature in selecting the standard of classification has chosen an arbitrary, unreasonable and ineffective one, and that, therefore, the act must fall because it is a special one, and is of the class of special legislation interdicted by the Constitution. It may possibly be true, as counsel assert, that the standard of classification was adopted for the sole purpose of bringing a single municipality under the act, and that the motives of the Legislature were not commendable; but, granting all this, yet no reason is supplied for condemning the law, for the courts can not inquire into the motives of the legislators. All that the courts can rightfully do is to ascertain and decide whether any constitutional provision is violated. Their power extends only to an investigation and determination of the question whether the law is or is not unconstitutional.

The subject to which the act under consideration is addressed is not one upon which the Legislature is forbidden to enact special laws. If the subject were one of those enumerated in the section which prohibits the enactment of special laws, we should have a very different case from the one before us; but it is not within the classes enumerated, nor can it be brought within the enumeration save by interpolating a provision not written in the Constitution. It is, of course known to all that where special laws are not forbidden they may be enacted. Thorpe v. Rutland R. R. Co., 27 Vt. 140; Adams v. Howe, 14 Mass. 340; Sharpless v. Mayor, etc., 21 Pa. 147 (161). If the enactment of such a law as the one before us is forbidden, it must be by virtue of section 23 of article 4 of the Constitution, for the subject embraced in the act is not included in the enumeration found in the preceding section. But section 23, as has been again and again decided, does not prohibit the enactment of special laws, where general ones can not be made applicable. It has also been repeatedly held that whether a general law can be made applicable to a particular subject is exclusively a legislative question, and it necessarily results that if the question is legislative the whole matter, with all its incidents, must be determined by the Legislature. It has been steadily held since the decision in Gentile v. State, 29 Ind. 409, that the Legislature is the exclusive judge of whether a general law can be made applicable to a subject not enumerated in section 22 of article 4 of the Constitution. In that case it was said: "As the General Assembly, then, have the power to pass local laws where general ones can not be made applicable, and as the Constitution does not declare, except in the cases enumerated in section 22, in what particular cases general laws can be made applicable, or designate the proper subjects of local legislation, who is to determine when a law may be local, or when a general law can be properly applied to the particular subject? Most unquestionably, those who make the law are necessarily required, in its enactment, to judge and determine, from the nature of the subject, and the facts relating to it, whether it could properly be made general, and of uniform operation throughout the State." Among the many cases affirming and enforcing the doctrine so emphatically declared in the case from which we have quoted are these: City of Evansville v. State, ex rel., 118 Ind. 426, 21 N.E. 267 (433); Wiley v. Corporation of Bluffton, 111 Ind. 152, 12 N.E. 165; Johnson v. Board, etc., 107 Ind. 15, 8 N.E. 1 (22); Kelly v. State, ex rel., 92 Ind. 236; Stuttsman v. State, 57 Ind. 119; Vickery v. State, 50 Ind. 461; Marks v. Trustees, etc., 37 Ind. 155; State, ex rel., v. Tucker, 46 Ind. 355; Clem v. State, 33 Ind. 418; Longworth v. Common Council, etc., 32 Ind. 322; State v. Boone, 30 Ind. 225; State v. Hockett, 29 Ind. 302. It is simply and absolutely impossible to escape the force of the decision in Gentile v. State, supra, for the question was there made and there decided. The question was before the court for decision, and judgment was given upon it. This has been affirmed in many cases in terms as strong as the pen can frame. In the case of City of Evansville v. State, ex rel., supra, the question came before the court upon an act relating to precisely the same subject as that...