State ex rel. Geake v. Fox

• Citation: 158 Ind. 126,63 N.E. 19
• Parties: STATE ex rel. GEAKE et al. v. FOX, Comptroller.
• Decision Date: 26 February 1902
• Court: Indiana Supreme Court

158 Ind. 126

63 N.E. 19

STATE ex rel. GEAKE et al.

v.FOX, Comptroller.

Supreme Court of Indiana.

Feb. 26, 1902.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Mandamus, on the relation of William Geake and others, as commissioners of the board of public safety for the city of Ft. Wayne, against Joseph V. Fox, comptroller, to compel the approval and filing of their bonds. From a judgment in favor of the defendant the relators appeal. Affirmed.

R. S. Taylor, J. B. Harper, W. & E. Leonard, Vesey & Heaton, W. L. Taylor, Merrill Moores, and C. C. Hadley, for appellants. Barrett & Morris, W. H. Shambaugh, Henry Colerick, and Zollars, Worden & Zollars, for the State.

HADLEY, J.

Claiming to act by authority of a statute approved March 7, 1901 (Acts 1901, p. 132), the governor appointed the relators commissioners of the board of public safety for the city of Ft. Wayne, to take charge of the police and fire departments. The act required the commissioners to execute bonds for the faithful performance of their official duties, to be approved by and filed with the comptroller. The relators tendered proper bonds, and appellee, as comptroller, refused to approve and file them, solely on the ground that the act was unconstitutional. Thereupon the relators filed their application for a writ of mandamus to compel appellee to approve and file their bonds. Demurrers were sustained to the application and alternative writ. The only question involved is the constitutionality of that part of the act which relates to the appointment of the board of public safety.

So far as important to the decision of the case, the provisions in controversy are, in substance, as follows: The government of all cities having more than 35,000, and less than 49,000, population (which applies only to the city of Ft. Wayne) shall be accomplished by six executive departments,-finance, law, public works, public safety, assessment and collection, and public health and charity. No other executive or administrative department shall be established in such city. The heads of said departments, except the department of public safety, and of assessment and collection (the latter to be administered by county officers) shall be appointed by the mayor; the department of public safety to be in charge of a board of three commissioners, who shall have been residents and voters of the city for three years, and who shall be appointed by the governor, and serve four years, and until their successors are appointed and qualified; this board shall have the care and management, supervision, and exclusive control of all matters relating to the fire and police force, fire alarm, telegraph, erection of fire escapes, inspection of buildings and boilers, market places and food sold therein, pounds and prisons, and shall have power to purchase, at the expense of the city, all necessary supplies and apparatus, and make all repairs needed in its department, and shall receive for services $400 per annum, payable quarterly out of the funds of the city. It shall be the duty of the city attorney to advise the board, but should he refuse, or the board be of opinion that the best interests of the city would be subserved by employing other counsel, the board may, if it deems it necessary, employ any attorney resident in the city to act for it, and any sum due said attorney for such services shall be determined by said board and paid by the city. The board shall appoint a clerk to keep their accounts, who shall also be clerk of the municipal court, and of the superintendent of police. It shall detail some member of the police force to be bailiff of the municipal court. It shall appoint a chief of police, and chief of fire department, and all officers, detectives, and patrolmen of the police force, and all officers and employés of the fire department; not more than one-half of such employés, excluding the chiefs, shall belong to the same political party. Such board shall also appoint a weigh master, market master, pound master, and such other officials as it shall find necessary for the department, and within certain limits fix the salaries and compensation of all appointees, and it is made the duty of the common council to provide for payment of all departmental expenses out of the funds of the city.

Relators assert that the legislature has power to take away from cities the management of their fire departments as well as their police departments, and ask us to modify or overrule the cases of State v. Denny, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79;City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93; and State v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65. Appellee contends that this court in the cases named explicitly and correctly decided that the legislature could not deprive a city's inhabitants of local self-government, and that the maintenance and control of a fire department is an element of local self-government. We approach a consideration of the subject with that hesitation which is incident to a knowledge that the question has been, heretofore, discussed pro and con, by judges of this and other courts of distinguished ability, and that the principal reasons in support of and against the rule as adopted in this state have been forcibly and logically presented. Only the great importance of the subject, and the earnest insistence of appellant's able counsel that this court has been resting in error for 12 years, induces us to again enter upon its general review. The following preliminary propositions may be deemed as settled in this state: (1) When a party assails an act of the general assembly as being prohibited by the constitution, the burden is upon the assailant to establish his charge clearly, and beyond reasonable doubt. Larned v. Elliott, 155 Ind. 702, 57 N. E. 901;State v. Burke, 154 Ind. 645, 57 N. E. 509;State v. Menaugh, 151 Ind. 260, 51 N. E. 117, 357, 43 L. R. A. 408, 418;Townsend v. State, 147 Ind. 624, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477;State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313. (2) Aside from the restrictions of the state and federal constitution, and the laws and treaties passed and made pursuant thereto, the general assembly is unfettered in the exercise of legislative power. State v. Menaugh, 151 Ind. 260, 51 N. E. 117, 357, 43 L. R. A. 408, 418;State v. McClelland, 138 Ind. 395, 37 N. E. 799;Hancock v. Yaden, 121 Ind. 366, 23 N. E. 253, 6 L. R. A. 576, 16 Am. St. Rep. 396;Robinson v. Schenck, 102 Ind. 307, 1 N. E. 698;Mount v. State, 90 Ind. 29, 46 Am. Rep. 192; Const. art. 4, § 1. (3) The question as to whether a law is politic, or expedient, or necessary, or wise, or unwise, belongs exclusively to the general assembly, and not to the courts. Jamieson v. Oil Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652;State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566;Parker v. State, 132 Ind. 419, 31 N. E. 1114;State v. McClelland, 138 Ind. 395, 37 N. E. 799;State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313. (4) The legislature has power to provide that the police force of municipal corporation shall be controlled by a board appointed by the governor. State v. Denny, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79;City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93;State v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65. (5) If a part of a statute is valid, and a part invalid, courts will uphold the valid part, unless the provisions of the act are so mutually connected with, and dependent upon, each other as conditions, considerations, or compensations for each other as to warrant the belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not have passed the residue independently. State v. Denny, supra.

2. These propositions bring us to the principal question, namely: Has the legislature constitutional authority to place the management of the fire department of municipal corporations under the control of boards appointed by the governor? It is well to note at the beginning that the question does not challenge the right of the state to supervise the power of municipal bodies so far as it relates to subjects of public concern, such as the preservation of the peace, the construction and care of public streets, sewers, and the like, but the inquiry here is restricted to the power of the legislature to strip a town or city organization of all right to manage in its own way the exclusive private property it is authorized to acquire. In other words, may the general assembly, for the purpose of permitting an increase of local comfort and welfare; authorize a city to levy taxes upon its own inhabitants, and therewith provide engine houses, engines, horses, hose, ladders, hospitals, libraries, markets, charities, public halls, and parks, all for the exclusive use, and at the exclusive expense, of the city, and, having once acquired those things according to the tastes, ability, and judgment of those who are required to pay for them, may the state, with constitutional approval, capriciously step in and turn out the city's chosen custodians and employés, and place its own commissioners in charge, with power to change what the city has selected, to buy and sell, to contract debts, to appoint to office, to make employments, to fix salaries, and charge all costs and expenses to the city? That the statute in question authorizes acts with respect to the city's government which at first blush appear unjust and oppressive furnishes the court no justification for declaring the law invalid, and it must be upheld, and referred back to the people who made it, for correction, unless it clearly appears that the acts which give rise to the injustice are of themselves without constitutional sanction. As we have heretofore stated, the act complained of here is the state's interference with the...