State ex rel. Cline v. Schricker, 28559

• Decision Date: 10 January 1950
• Docket Number: No. 28559,28559
• Citation: 228 Ind. 41,89 N.E.2d 547
• Parties: STATE OF INDIANA ex rel. Claude CLINE et al., Appellants, v. Henry F. SCHRICKER, Governor of the State of Indiana; Charles Francis Fleming, Secretary of State of the State of Indiana; James M. Propst, Auditor of State of the State of Indiana; F. Shirley Wilcox, Treasurer of State of the State of Indiana, Appellees.
• Court: Indiana Supreme Court

Page 547

89 N.E.2d 547

228 Ind. 41

STATE OF INDIANA ex rel. Claude CLINE et al., Appellants, v. Henry F. SCHRICKER, Governor of the State of Indiana Charles Francis Fleming, Secretary of State of the State of Indiana; James M. Propst, Auditor of State of the State of Indiana; F. Shirley Wilcox, Treasurer of State of the State of Indiana, Appellees.

No. 28559.

Supreme Court of Indiana.

Jan. 10, 1950.

On rehearing.

Rehearing denied.

For former opinion, see 88 N.E.2d 746.

Appeal from Marion County Superior Court; John L. Niblack, judge.

Claude Cline, Huntington, for appellant.

J. Emmett McManamon, Indianapolis, for appellee.

GILKISON, Judge (dissenting).

Appellants have filed a petition for rehearing herein for many pertinent reasons some of which of a procedural nature I have answered in a dissenting opinion heretofore filed. In that opinion I did not discuss the case on its merits because no issue was presented to the trial court authorizing it to pass upon the merits of the case, and no general appearance was entered by appellees. However, my brother judges, entered the gateway of error opened by the trial court, and attempted to pass upon the merits of the case, and by overruling the petition for rehearing have widened the open gateway and enhanced the opportunity for error. For this reason I feel it my duty to enter the forbidden arena and discuss the case on its merits on the petition for rehearing.

There has been and there is nothing before the court but plaintiff's complaint. All proper averments therein must be accepted as true, since the decision is made solely upon the sufficiency of its averments to state a cause of action. Among other averments therein I quote grammatical paragraphs 6 and 7 as follows:

'6. Plaintiff further says that the said General Assembly and its duly elected and presiding officers thereof failed to adjourn its session at the day and hour as above required by the above referred to provisions of the Constitution of the State of Indiana, but that the said General Assembly with the full knowledge of each and all of the defendants herein, did purposely, fraudulently, flagrantly and designedly continue the sessions of both Senate and House of the said General Assembly until five-thirteen and five-sixteen P.M. respectively, Central Standard time on Wednesday March 9, 1949, for a period of more than forty-one hours after the time as above set and fixed by the Constitution of the State of Indiana for the regular and legal adjournment thereof which prolonged sessions were in violation of said provisions of said Constitution. That in an attempt to avoid said provisions and without constitutional rights so to do, and without authority of law, the said General Assembly and its officers stopped the clocks and the time-pieces in their places of assembly at eleven twenty-two P.M. on said March 7, 1949, in a silly, foolish and illegal attempt to avoid the provisions of said Constitution. That said clocks and time-pieces were continued stopped at eleven twenty-two P.M. as of the date of March 7, 1949, until March 9, 1949, as aforesaid.

'7. Plaintiff further says that subsequent to the hour of midnight on Monday March 7, the said General Assembly in violation of each and all of the hereinbefore referred to constitutional provisions, remained in continuous session until the hour and date aforesaid and falsely, fraudulently, knowingly, willfully and in utter disregard of said Constitutional provisions, pretended to function as a legal General Assembly of the State of Indiana, after the said date of March 7, 1949. That the presiding officers of each of said Houses accepted and entertained resolutions, motions and bills and that the members of said Houses of said General Assembly voted on each and all of said actions and that a false and pretended record was made of each and all of said actions and that the said presiding officers of each of said Houses of said General Assembly falsely, fraudulently and willfully attested and certified to the genuineness and correctness of the said actions of each of said houses, then and there well knowing that the said actions of said Houses were not taken within the limitation of time so fixed by the provisions of the Constitution of the State of Indiana. That in pursuance of said illegal acts as aforesaid the presiding officers of each of said Houses of the General Assembly permitted the entry in the journal of each of said Houses of a record of each of the actions of said resolutions, motions and bills as made in each of said Houses subsequent to midnight, March 7, 1949. That said presiding officers have certified each of said actions to the Secretary of state in the manner as provided by law, then and there well knowing that said action is illegal and a fraud upon the people of the State of Indiana. And further that the said General Assembly by its officers and employees falsely and fraudulently made an official record in its journal showing that the Assembly adjourned sine die at eleven fifty-nine P.M. March 7, 1949, then and there well knowing that said statement was false and untrue.

'That among the said bills so passed illegally and fraudulently and in violation of the above Constitutional provisions were the following: House Bills numbered 379, 380 and 381 [Laws 1949, cc. 257, 232, 233] being budget bills of various officers and functions of the State of Indiana involving an expenditure of the funds of the State of Indiana in the sum of approximately $_____; House Bill 25, [Laws 1949, c. 277] being designated World War Number Two Bonus Bill involving a large expenditure and also fifteen or twenty other bills involving expenditures and activities of various units and functions of government the exact nature and provisions thereof being unknown to plaintiff. That each and all of said above referred to bills as so falsely certified as having been passed by the said General Assembly are illegal and a fraud upon the taxpayers and citizens of the State of Indiana and in direct violation of the provisions of the Constitution of the State of Indiana.'

The Constitution of Indiana with reference to sessions of the General Assembly affecting this action, is as follows: 'The sessions of the General Assembly shall be held biennially at the capital of the State, commencing on the Thursday next after the first Monday of January, in the year one thousand eight hundred and fifty three, and on the same day of every second year thereafter, unless a different day or place shall have been appointed by law. But if, in the opinion of the Governor, the public welfare shall require it, he may, at any time by proclamation, call a special session.' Art. 4, § 9, Indiana Constitution.

'The members of the General Assembly shall receive for their services, a compensation to be fixed by law; but no increase of compensation shall take effect during the session at which such increase may be made. No session of the General Assembly, except the first under this Constitution, shall extend beyond the term of sixty-one days, nor any special session beyond the term of forty days.' Art. 4, § 29, Indiana Constitution.

In his superb answer to Edmund Burke's 'Reflections on the French Revolution', Thomas Paine in 1791 defined and explained a constitution of a republic thus: 'A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government. It is the body of elements, to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organized, the powers it shall have, the mode of elections, the durations of parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and, in fine, everything that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound. A constitution, therefore, is to a government, what the laws made afterward by that government are to a court of judicature. The court of judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made; and the government is in like manner governed by the constitution.' (My italics.) 'Rights of Man' 1791, pages 48 and 49.

In the one hundred fifty-eight years that have elapsed since this definition and explanation was made, nothing with greater clarity or simplicity has issued from any source on this subject. For similar definitions see 16 C.J.S., Constitutional Law, § 1, page 20, § 3, page 21; 11 Am. Jur., Constitutional Law, § 2, page 602. Many similar definitions and explanations have been given by this court. From some of these I quote as follows:

'* * * On this continent we came to the time when the people, by revolution, took to themselves sovereignty, and, in exercising supreme political power, chartered governments by written Constitutions. These organic instruments declared and guaranteed the rights and liberties of the individual, which had come to the people through centuries of struggle against absolutism in government. The majority was to rule, but under restraints and limitations which preserved to the minority its rights. 'By the Constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law.' Cooley, Const. Lim (7th Ed.) 56. The government so instituted was representative of the creator of it, the...