State ex rel. Collett v. Gorby

Decision Date04 February 1890
Citation23 N.E. 678,122 Ind. 17
PartiesState ex rel. Collett v. Gorby.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Dearborn county; W. H. Banbridge, Judge.

An information by relator, John Collett, to obtain possession of the office of the department of geology and natural resources for the state of Indiana from the defendant, Sylvester S. Gorby. Defendant demurred to the information, and from the order sustaining the demurrer relator appeals.

Mitchell, C. J., and Elliott, J., dissenting.

Louis T. Michener, Atty. Gen., A. C. Harris, J. K. Thompson, George M. Roberts, J. H. Gillett, Frank Blacklidge, and A. J. Beveridge, for appellant. J. E. McCullough, L. P. Harlan, and S. J. Peelle, for appellee.

Coffey, J.

The information in this case charges, substantially, that the relator. John Collett, was duly appointed and commissioned by the governor of the state of Indiana on the 9th day of May, 1889, director of the department of geology and natural resources for the state of Indiana; that at that time the office had no incumbent, except as hereinafter set out; that on the 11th day of May, 1889, he took and subscribed the oath of office on the back of said commission, as required by law, and on said day deposited a duly-certified copy of said oath in the office of the secretary of the state of Indiana; that in all other respects relator, at the time last mentioned, duly qualified for said office; that the relator is now, and for many years last past has been, a citizen of the United States of America, and of the state of Indiana; that he is over the age of 21 years, to-wit, of the age of 60 years; that the relator is now, and for 39 years last past has been, a legal voter in Engine township, Vermillion county, and state of Indiana; that he is not, and has not been for more than 10 years, a member of the general assembly of said state, nor has he held any office since the 22d day of April, 1885, nor was he at the time of said appointment, or at any time since, in any way disqualified from being appointed to or holding said office of director of the department of geology and natural resources for the state of Indiana, but, on the contrary, he was at the time of said appointment, ever since has been, and still is, eligible to said office; that the above-named defendant, on the ------ day of March, A. D. 1889, intruded into, and now usurps, unlawfully holds, and exercises, the office of director of the department of geology and natural resources for the state of Indiana, by virtue of a pretended election thereto by the general assembly of Indiana at its last session; that said defendant is, and during all the time last aforesaid has been, without any other claim or title to said office; that on the 14th day of May, A. D. 1889, relator demanded the possession of said office from defendant, but he refused to surrender it. Wherefore, etc. A demurrer to this information for want of facts sufficient to constitute a cause of action was sustained by the circuit court, and the appellee had judgment for costs. The assignment of error calls in question the correctness of this ruling.

Waiving all questions of a technical character, this information and the demurrer thereto raises and requires a decision of the question of the legal mode of selecting the officer therein named, as well as the authority of the general assembly of the state to make such selection. If the general assembly of the state possesses the power to elect the incumbent of the office in question, it follows that the court did not err in sustaining the demurrer to the information, for there was no vacancy in the office at the time the relator was appointed and commissioned by the governor of the state. In considering and passing upon this question it may not be unprofitable to review, briefly, the recent adjudications of this court upon the subject of the legislative power over appointments, and, as a basis for settling the question now before us, to definitely ascertain and settle the grounds upon which they rest. In the case of State ex rel. Jameson v. Denny, 118 Ind. 382, 21 N. E. Rep. 252, it was held that the general assembly had no power to elect or appoint the members of a board of public works and affairs for the cities named in the act of March 9, 1889. That decision rests upon the grounds, as therein expressly stated- First, that so much of the act as attempted to confer on the general assembly the duty of electing or appointing the individual members of that board sought to confer on it executive or administrative functions which, under the constitution, it was forbidden to exercise; and, second, that the people had the right to local self-government, including the right to select their own local officers, to manage their own purely local affairs, and that, by the adoption of our present constitution, they did not surrender such right. In the case of City of Evansville v. State, 118 Ind. 426, 21 N. E. Rep. 267, and in the case of State ex rel. Holt v. Denny, 118 Ind. 449, 21 N. E. Rep. 274, it was held that the general assembly does not possess the power to elect or appoint the individual members of a metropolitan board of police and fire department provided for by an act of the general assembly of the 7th of March, 1889. The decisions in these two cases rests upon the grounds stated in the case first above cited. In the case of Hovey v. State ex rel. Carson, 119 Ind. 395, 21 N. E. Rep. 21, it was held that the general assembly had the power to elect or appoint the trustees of the Indiana Hospital for the Insane, involved in that case. The decision rests upon the ground, as stated in the principal opinion, though not concurred in by a majority of the court, that as the constitution enjoins upon the legislature the duty to make provision, by law, for the support and maintenance of an institution for the treatment of the insane, this is equivalent to an express grant of authority to provide for the selection of all such agents or officers as that body may deem necessary to accomplish the duty imposed, and that for that reason it might either appoint such officers or agents itself, or commit the power to do so to the governor. The decision rests upon the further ground that the long-continued practice of the legislature in making such appointments, and the acquiescence of the other departments of the state therein, had given to the constitution a practical construction by which the courts were bound. In the case of Hovey v. State ex rel. Riley, 119 Ind. 386, 21 N. E. Rep. 890, it was held that the general assembly had authority to elect or appoint the trustees of the blind asylum. The decision in that case, as stated in the opinion, rests upon the ground that such institutions are, in a sense, in the possession and under the control of the general assembly, and that for that reason it has the power to elect or appoint agents or officers to manage them; and upon the further ground that, by a long-continued exercise of the right by the general assembly to make such appointments, and the acquiescence therein of the other departments of the state, a construction has been placed upon the constitution which the courts are bound to respect. In the case of State v. Hyde, 22 N. E. Rep. 644, and in the case of State v. Peelle, Id. 654, it was held that the general assembly did not possess the power to appoint or elect either the director of the department of geology and natural resources or the state statistician. It was further held in these cases that, under our state constitution, these officers are elective by the people, and that the legislature could not provide by law that they should be permanently filed by appointment. The latter holding was based upon the assumption that the legislature had created by statute two new departments of the state government, and that the incumbents of these offices are, in a sense, administrative state officers. It is true that there is some language, inadvertently used, in the case of State v. Hyde, from which it could be inferred that it was the opinion of the court that the oil inspector might be an elective office under the constitution; but what was there said upon the subject of an elective office was intended to apply to the office of director of the department of geology and natural resources, and must be so understood and construed.

It will thus be seen, by reference to the recent decision of this court upon the subject of legislative authority in the matter of the election or appointment to office, and an examination of the grounds upon which they rest, that there is no conflict, but, on the contrary, that they constitute one harmonious whole. But, however harmonious these decisions may be in relation to the power of the legislature to appoint to office, it is plain, from the dissenting opinions in the case of State v. Hyde, supra, that there has arisen, and now exists, a sharp, irreconcilable conflict in the opinions of the individual members of the court upon that subject, such as may arise at any time upon any intricate, unsettled legal proposition. Such disagreement, as we understand it, does not arise out of the conclusion to be drawn from any given premises, but arises out of an effort to agree upon the premises from which the conclusion shall be drawn. If it were agreed that an appointment to office was intrinsically the exercise of an executive or an administrative function, then the conclusion would so inevitably follow, from the language used in section 1, art. 3, of our constitution, that the legislature could not appoint, except in cases where the constitution expressly confers such power,-that the controversy would be at an end. But it is not so agreed. Indeed, the majority and the minority of the court have come to directly opposite conclusions as to the nature of the appointing power conferred by our constitution. This disagreement is greatly to be regretted, as it tends...

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