State ex rel. Holt v. Denny

• Decision Date: 24 April 1889
• Citation: 118 Ind. 449,21 N.E. 274
• Parties: State ex rel. Holt et al. v. Denny, Mayor, et al.
• Court: Indiana Supreme Court

118 Ind. 449

21 N.E. 274

State ex rel.

Holt et al.

v.Denny, Mayor, et al.

Supreme Court of Indiana.

April 24, 1889.

Mitchell, J., dissenting.

Appeal from superior court, Marion county; D. W. Howe, Judge.

Duncan & Smith, for appellants. L. T. Michener, Atty. Gen., W. L. Taylor, City Atty., A. C. Harris. W. H. Calkins, Ferdinand Winter, R. O. Hawkins, Chas. F. Griffin, and John H. Gillett, for appellees.

Olds, J.

This is a proceeding to test the right of the board of metropolitan police and fire department of the city of Indianapolis, elected by the general assembly of the state of Indiana March 9, 1889, under the provisions of enrolled act No. 83, house of representatives, to the possession, custody, and control of the station-house, city prison, patrol wagon, books, records, and equipments belonging to the police department of said city; also the possession, custody, and control of all engine-houses, engines, ladders, hose-reels, horses, wagons, books, records, and all the equipments and property of every description belonging to the fire department of said city; and to determine the right of the said board of metropolitan police and fire department of the city of Indianapolis to discharge the duties of their office, as defined and prescribed by said enrolled act No. 83. The questions presented by these proceedings relate to and involve the validity of said act. The first question presented is whether the act involved has been properly certified, so that the courts can take judicial knowledge of it as a law. The second question challenges the authority of the general assembly to enact a law of like scope, terms, and effect to the one in question, and requires an adjudication as to its constitutionality and validity. The law in question provides that in all cities of this state of 29,000 or more inhabitants, according to the United States census of 1880, there shall be established within and for such cities a board of metropolitan police and fire department, to consist of three commissioners. The members of the first board or boards, under the act, shall be elected by the general assembly upon the taking effect of the act, one of whom shall be of opposite politics to the other two, one to serve until January 1, 1893, one until January 1, 1892, and one until January 1, 1891, their successors and succeeding members to be appointed by the mayor of said cities, and the terms of those thus appointed shall be three years; that the said commissioners shall have resided in such cities for at least five years next preceding their election; that before entering upon their duties they shall take an oath of office before the clerk, and a further oath that in any appointment or removal to be by them made to or from the police force or fire department created and to be organized by them under the act they will, in no case, and under no pretext, appoint or remove any policeman or officer of police, or fireman or officer of the fire department, because of any political opinion held by any such person, or for any other cause or reason than fitness or unfitness of such person. The commissioners are required to give bond, and shall each receive a salary of $600 per annum, payable monthly out of the city treasury. They shall elect one of their number to act as president, who shall be ex officio a member of the board of health of such city. They shall elect some person not a member of the board to act as secretary and property clerk, who shall give bond, and receive a salary not exceeding $1,500 per annum. The said board shall have power to elect a superintendent of police, captains, sergeants, detectives, and such other officers and patrolmen as the board may deem advisable; said captains. sergeants, detectives, and other officers and patrolmen to be selected equally between the two leading political parties of said cities. Said board shall not have power to appoint more than one patrolman for each 1,000 inhabitants of said city, except in cases of emergency. The officers and patrolmen shall receive such compensation as the board shall determine; superintendent not less than $1,000, nor more than $2,000, per annum; captain not less than $700, nor more than $1,200; sergeant not less than $600, nor more than $1,000; patrolmen not less than $550, nor more than $800,-and the salaries of other officers to be fixed by the board. All members of the force shall be able to speak the English language. The board shall have the power to remove or suspend any member of the force, and provide rules of discipline, and to make and promulgate general and special orders through the superintendent, who shall be the executive head of the force. Said commissioners shall, immediately after their organization, assume and exercise the entire control of the police force and fire department of such city, and shall possess full and exclusive power and authority over the police organization, government, appointments, and discipline within the city. They shall have the custody and control of all public property, including station-houses and city prisons, patrol wagons, books, records, and equipments belonging to the police department, all engine-houses, engines, ladders, hose-reels, horses, wagons, books, records, and all equipments and property of every description belonging to the fire department of such city; and it abolishes all other police and fire boards, and officers and forces maintained under any other law, and makes them unlawful. It further provides that said board shall immediately assume and exercise the entire control of the fire department of such city, and appoint a chief fire engineer, at a salary of not exceeding $2,000, appoint firemen and all necessary employés of the fire department, and fix their compensation; said firemen and employés to be selected equally from the two leading political parties of said city.

It is provided in detail that the board shall have exclusive control and management of the police and fire department of such cities, and made the duty of the board of aldermen and common council of such cities as shall have two boards, and of the common council of such as have but one board, to provide, at the expense of such city, all necessary accommodations within the city limits for station-houses, engine-houses, hook and ladder houses, to furnish, warm, and light the same, provide food for persons detained in the station-houses; in short, to provide everything necessary for the department, and to pay all the expenses of maintaining the departments of police and fire. It is further made unlawful, and punishable by fine and dismissal from the service, for any member of the police force or fire department, while on duty, to solicit any person to vote at any general or special election for any candidate for office, or to challenge any votes, or in any manner attempt to influence any elector at such election, or to be a delegate or candidate to any political convention, or to solicit votes for any candidate for any delegate to any such convention. There is an emergency clause. The bill is signed by the president of the senate and speaker of the house, and attested by the clerk of the house. There is also a certificate of the clerk of the house and secretary of the senate. The certificate of the clerk of the house sets forth the fact that the bill was, on the 7th day of March, 1889, returned to the house with the objections of the governor, and the objections were spread upon the journal, and the bill again passed by a vote of 54 ayes and 39 nays; and of the secretary of the senate certifying that upon the bill having passed the house, notwithstanding the governor's objections thereto, the same was transmitted to the senate, and it was there ordered that the governor's objection be spread in full upon the journal, which was done, and the bill passed, notwithstanding the objections of the governor thereto, by a vote of ayes, 27, nays, 19. It is urged that the act is not properly certified, so that the courts will take judicial knowledge of it as a law. It is contended by counsel for appellee that, to entitle it to the solemnity and force of a law, after it was vetoed by the governor, and passed by both houses of the general assembly, it must be again attested by the presiding officers of the two houses, as required by section 25, art. 4, on its original passage; that, unless it be so attested, courts will not take cognizance of it as a law; that courts can only look to the bill itself, and not to the journals of the two houses of the general assembly, to determine whether or not a bill was passed over the objections of the governor. Section 14, art. 5, provides: “Every bill which shall have passed the general assembly shall be presented to the governor. If he approve, he shall sign it, but, if not, he shall return it, with his objections, to the house in which it shall have originated, which house shall enter the objections, at large, upon its journals, and proceed to reconsider the bill. If, after such reconsideration, a majority of all the members elected to that house shall agree to pass the bill, it shall be sent, with the governor's objections, to the other house, by which it shall likewise be reconsidered, and, if approved by a majority of all the members elected to that house, it shall be a law.” It will be seen by this section that no attestation of the presiding officers is required, but it expressly declares “it shall be a law.” It seems to us clear that the constitution does not require an attestation of the bill a second time, or after it has been passed over the objections of the governor, and that section 25, art. 4, has no relation to the passage of a bill after it has been vetoed. It is held in the case of Evans v. Browne, 30 Ind. 514, that the courts must for themselves ascertain what is the public law of the state, and that the courts cannot look beyond the enrolled act and its...