State, ex rel. Holt v. Denny

• Decision Date: 24 April 1889
• Docket Number: 14,836
• Citation: 21 N.E. 274,118 Ind. 449
• Parties: The State, ex rel. Holt et al., v. Denny, Mayor, et al
• Court: Indiana Supreme Court

21 N.E. 274

118 Ind. 449

The State, ex rel. Holt et al., v. Denny, Mayor, et al

No. 14,836

Supreme Court of Indiana

April 24, 1889

From the Marion Superior Court.

Judgment affirmed, with costs.

J. S Duncan and C. W. Smith, for appellants.

L. T Michener, Attorney General, W. L. Taylor, A. C. Harris, W. H Calkins, F. Winter, R. O. Hawkins, C. F. Griffin and J. H. Gillett, for appellees.

Olds J. Mitchell, J., dissents, for the reasons given in his opinion in the case of State, ex rel., v. Denny, ante, pp. 382, 411.

OPINION

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 9th, 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, hosereels, 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, tenor 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 twenty-nine thousand 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 1st, 1893, one until January 1st, 1892, and one until January 1st, 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 fifteen hundred dollars per annum. The said board shall have power to select 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 ten hundred inhabitants of said city, except in cases of emergency. The officers and patrolmen shall receive such compensation as the board shall determine--the superintendent not less than one nor more than two thousand dollars per annum; captain not less than seven nor more than twelve hundred dollars; sergeant not less than six nor more than ten hundred dollars; patrolmen not less than five hundred and fifty nor more than eight hundred dollars; 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 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. The act abolishes all other police and fire boards, and officers and forces maintained under any other law, and makes them unlawful.

The act 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 not exceeding $ 2,000; appoint firemen and all necessary employees of the fire department and fix their compensation, said firemen and employees 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 departments of such cities, and made the duty of the board of aldermen and common council of such city as shall have two boards, and of the common council of such as has 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 prisoners detained in the station-houses--in short, to provide everything necessary for the departments, 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 voter, 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 from 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 that the objections were spread upon the journal and the bill again passed, by a vote of 54 ayes and 39 nays; and the certificate of the secretary of the Senate certifies that upon the bill having passed the House, notwithstanding the Governor's objections thereto, the same was transmitted to the Senate, and it was then ordered that the Governor's objections 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 appellees 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, article 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 the bill was passed over the objections of the Governor.

Section 14, article 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 by the presiding officers is required, but it expressly declares "it shall be a law." It seems to us clear...