State ex rel. Hovey v. Noble

• Decision Date: 20 April 1889
• Citation: 118 Ind. 350,21 N.E. 244
• Parties: State ex rel. Hovey v. Noble, Clerk, et al.
• Court: Indiana Supreme Court

118 Ind. 350

21 N.E. 244

State ex rel.Hovey

v.Noble, Clerk, et al.

Supreme Court of Indiana.

April 20, 1889.

Writ of prohibition issued on the relation of Alvin P. Hovey against William T. Noble, clerk, and William E. Niblack, Jeptha D. New, John R. Coffroth, Robert Lowry, and Mortimer Nye, supreme court commissioners.Lewis F. Michener, Atty Gen., Harris & Calkins, Ferdinand Winter, and John H. Gillett, for relator. John R. Coffroth, Wm. E. Niblack, Mortimer Nye, Robert Lowry, Jeptha D. New, and Wm. P. Fishback, for defendants.

Elliott, C. J.

This action brings before us for judgment the constitutionality of the act of the general assembly, entitled “An act providing for the appointment of commissioners of the supreme court, and matters connected therewith, and declaring an emergency.” The first section of the act assumes to create the offices of commissioners of the supreme court, and to provide for the appointment of persons to fill them by the general assembly. One clause of this section reads thus: “It shall be the duty of such commissioners, under such rules and regulations as the supreme court shall adopt, to aid and assist that court in the performance of its duties.” Another clause declares that the “commissioners shall, respectively, hold their offices for the term of four years, and until their successors are elected and qualified.” It is also provided in this section that “if a vacancy shall occur in any one of said commissionerships hereby provided for, during a recess of the general assembly, the governor shall appoint some suitable person to fill said office until the next session of the general assembly.” It is also provided in the first section that “they shall each receive a salary equal to that of a judge of the supreme court.” The second section enacts that “the duties to be done and the work to be performed by such commissioners shall be such as the supreme court shall assign or appoint; but in no event shall such duties and work be in any way binding upon the supreme court.” Section 3 directs that rooms and stationery shall be provided for the commissioners. The fourth section requires the librarian to furnish them with “such books as may be required for their convenient and ready reference.” Section 5 reads thus: “Such commissioners shall be authorized to appoint a messenger at a salary of six hundred dollars a year, and such other assistants as they may deem necessary for the convenient and expeditious performance of their duties.” Section 6 makes an appropriation “to meet the payments required by this act.” Section 1, art. 7, of the constitution, vests the judicial power of the commonwealth in the courts. It ordains that “the judicial power of the state shall be vested in a supreme court, in circuit courts, and in such other courts as the general assembly may establish.” The effect of this provision is to vest in the courts the whole element of sovereignty, known as the judicial, established by the constitution, and the laws enacted under it, except in a few instances, where powers of a judicial nature are expressly and specifically lodged elsewhere. Kilbourn v. Thompson, 103 U. S. 168;People v. Keeler, 99 N. Y. 463, 2 N. E. Rep. 615. One element only of the three which compose our governmental system is vested in the courts, but to no other department is more than one element given. Each of the three departments has all there is of the element assigned to it, but it has nothing more. Each department has, it is true, incidental rights of a nature intrinsically different from the body of the power distributed to it, but these incidental rights are such only as are necessary to enable it to perform its functions as an independent branch of the government, and are in fact part of the principal power itself. Of the element of sovereignty, which is exclusively and intrinsically judicial, the people gave the courts all they had to give. The domain of the judiciary is not so extensive as that of the other departments, but no other power can enter that domain without a violation of the constitution, for within it the power of the judiciary is dominant and exclusive. The element of governmental power given to the judiciary is almost unfettered. Of all the enumerated departments of government-and ours is from the foundation upward a government of enumerated and distributed departments-the judicial is the least trammeled by constitutional limitations. Less extensive than others, it is freer from restraints. Few limitations circumscribe its powers, and fewer restrictions trammel its functions. It is true that the judicial department is not absolutely supreme. Outside of its sphere it is, indeed, without power, but no one of the departments is supreme in the strict sense, for the supreme power is in the people. No one department has, or can have, until the people shall change their organic law, all the powers of government, for those powers are carefully divided and clearly distributed. To affirm the contrary is to assert that all of section 7 is a collection of meaningless words, and every word of article 3 without meaning. But written constitutions are the product of deliberate thought. Words are hammered and crystalized into strength, and if ever there is power in words it is in the words of a written constitution. Behind the words is the power of a free people, operating through the medium of a constitutional convention, called together for the purpose of framing a fundamental and inviolable system of government. Of all governmental instruments it is the most solemn and powerful. Its grants are unalterable, its delegations of power unchangeable, and its commands supreme. Until the people themselves shall change or annul their constitution, all must obey its mandates. “All power,” says the first section of our bill of rights, “is inherent in the people.” Our constitution, therefore, is one in which “the people are recognized as the fountain of all law and authority. A large proportion of the citizens, determined by the sovereign body, exercise the powers of government by representation.” James. Const. Con. § 70. In the legislative department the sovereign body is represented by the general assembly, in the executive department it is represented by executive and administrative officers, and in the judicial department it is represented by the courts. “The powers of government” ordains our constitution, “are divided into three separate departments, the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution expressly provided.”

The words employed are clear and strong. There is more than a mere theoretical separation, or else words are powerless and constitutions mere empty fulminations. The provisions of the constitution we have quoted, taken in connection with those which prescribe, define, and limit the powers of the other departments of government, remove all doubt, and make it incontrovertibly plain that the courts possess the entire body of the intrinsic judicial power of the state, and that the other departments are prohibited from assuming to exercise any part of that judicial power. The authorities sustain our conclusion, for there is neither conflict nor clash of opinion, nor is there even diversity. The difficulty is not to find authority, but to select cases which best express the universal doctrine that all judicial power is exclusively in the courts, and the departments of government absolutely separate and distinct. Says the supreme court of Nebraska: “The powers of the state government are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons, being one of these departments, can exercise any power properly belonging to either of the others, except expressly so authorized by the constitution. Under this division of distinct departments of the government the apportionment of power to one department will, of itself, imply an inhibition of its exercise by the others.” Turner v. Althaus, 6 Neb. 54. One of the greatest of American judges, Gibson, C. J., said: “But the judicial power of the commonwealth is its whole judicial power, and it is so distributed that the legislature cannot exercise any part of it.” Greenough v. Greenough, 11 Pa. St. 489. “Does any one suppose,” says the supreme court of Illinois, “that this state can rightfully confer judicial power on any other courts than those provided for and created under our fundamental law?” At another place, in the same opinion, it is said, in speaking of a section of the constitution of Illinois: “That section has exhausted the judicial power of the people of the state. It is there fully disposed of, leaving no residuum.” Telegraph Co. v. Bank, 74 Ill. 217. “If there is any one proposition immutably established,” said Sawyer, J., “I had supposed it to be that the judiciary department is absolutely independent of the other departments of government.” In re Railway Commission, 32 Fed. Rep. 267. In speaking of constitutional courts, the supreme court of Alabama said: “These judicial tribunals are established by the constitution, owe their existence to that instrument alone, and are in no wise dependent upon the act of the general assembly.” It was also said in the same case, in speaking of the courts, that “some are established by the constitution itself; that is, by the people. They do not depend on legislative enactment for existence. They are created at the same time, and in the same way, with the legislature itself. They are of the same grade in the sovereign power. They are a constituent branch of the government itself. The government under the constitution is not complete without them.” Perkins v. Corbin, 45 Ala. 103.

This court has ever been consistent and firm in...