State ex rel. Law v. Blend

• Decision Date: 17 January 1890
• Citation: 23 N.E. 511,121 Ind. 514
• Parties: State ex rel. Law et al. v. Blend et al.
• Court: Indiana Supreme Court

121 Ind. 514

23 N.E. 511

State ex rel.Law et al.

v.Blend et al.

Supreme Court of Indiana.

Jan. 17, 1890.

Appeal from superior court, Vanderburgh county; Azro Dyer, Judge.

Action by the state of Indiana, upon the relation of Edward E. Law, Alexander H. Foster and Adolph Goeke, against Fred Blend, Charles Kehr, and James Nugent, to obtain possession of the office of police commissioners for the city of Evansville. Plaintiffs appeal from a judgment sustaining a general demurrer to the complaint.

D. B. Kumler, and Gilchrist & De Bruler, for appellants. John Brownlee, Philip W. Frey and Buchanan & Buchanan, for appellees.

Coffey, J.

The information in this cause charged that the relators, Ed ward E. Law, Alexander H. Foster, and Adolph Goeke, constitute the board of metropolitan police of the city of Evansville. That each of said relators was duly appointed a commissioner of police of said city by the governor, secretary of state, auditor of state, and treasurer of state, of the state of Indiana, pursuant to the provisions of the act providing for a metropolitan police in all cities of 29,000 or more inhabitants, etc.; the same being chapter 74 of the acts of the legislature of the state of Indiana for the year 1883, viz.: Said Edward E. Law was so appointed such commissioner on the first day of January, 1887; said Foster, on the 1st day of January, 1888; and said Goeke, on the 1st day of January, 1889. That at the time of their respective appointments said relators were each of them more than 21 years of age, and were each of them duly-qualified electors in the city of Evansville, county of Vanderburgh, and state of Indiana. That each of said relatorswas at such times a citizen of the state of Indiana, and of the United States. That each of said relators, at the time of his appointment as such commissioner of police, had resided in the city of Evansville for three years and more prior to his appointment. And that the relators were at the time of their several appointments, and are now, one of them of opposite politics to the other two, viz., said Edward E. Law is, and was at the time of such appointment, a Democrat, and the other relators are, and were at the time of their appointment, Republicans. That each of the relators at the time of his appointment was, and now is, eligible to said office of commissioner of police; and each of them had and has all the qualifications required by said act for such officer. That each of the relators was appointed to such office for the full term of three years, and each of them accepted such office, and took the oath and gave the bond required by said act, and did all other acts necessary to entitle him to hold said office. That said commissioners were duly organized as a board of metropolitan police for said city; and by virtue of their offices they were, on the 10th day of April, 1889, and for a long time prior thereto had been, discharging their duties as such commissioners of police, and were in charge and control of the police force of said city, and it was their right and duty at said time and is now, as such board of metropolitan police, to control and manage the police force of said city in the manner provided in said act. That on the 10th day of April, 1889, the defendants, claiming to act under the provisions of an unconstitutional and void act of the legislature of this state for the year 1889, providing for a board of metropolitan police and fire department in certain cities of this state, the same being chapter 112 of the acts of said legislature for the year 1889, wrongfully and unlawfully intruded themselves into said office of police commissioners for the city of Evansville, and, although the supreme court of this state has held said pretended act to be altogether null and void, the defendants, Fred Blend, Charles Kehr, and James Nugent, continue wrongfully and unlawfully to hold said office under a pretended authority from the common council of the city of Evansville, and refuse to surrender said offices, and they refuse to turn over to the relators the control of the police force of said city, although often requested so to do. That by said wrongful and unlawful acts of the defendants the relators are kept out of the offices and franchises to which they are legally entitled as above stated. That they have sustained damages in the sum of $3,000. Wherefore the relators pray for a decree declaring and establishing their right to said office, and that they have judgment, etc. The court sustained a demurrer to this information, and the appellants excepted. Judgment for appellees for costs.

The assignment of error calls in question the correctness of the ruling of the Vanderburgh superior court in sustaining the demurrer to the above information.

An act of the legislature passed on the 5th day of March, 1883, (section 705, Elliott, Supp.,) creates a board of metropolitan police in all cities in this state having a population of 29,000 or more inhabitants, as shown by the United States census of 1880. The act provides that such board shall be appointed by the governor, secretary, auditor, and treasurer of the state. This act also defines and specifically sets forth the duties of such board of metropolitan police. By an act of the legislature passed on the 7th day of March, 1889, the legislature attempted to abolish the board of metropolitan police created by the act of March 5, 1883, and to create a board of metropolitan police and fire department. This act provides for the election of the members of the first board by the general assembly, and confers on the mayor of such cities the power to appoint the members of all future boards. The act provides that all laws and parts of laws coming in conflict with it, and especially the act providing for a metropolitan police in cities of 29,000 inhabitants, are by this act repealed.

In the case of City of Evansville v. State, 118 Ind. 426, 21 N. E. Rep. 267, and the case of State v. Denny, 118 Ind. 449, 21 N. E. Rep. 274, the act of March 7, 1889, was held to be in conflict with the constitution of the state, and therefore void. It is contended by the appellees in this case that, although the body of the act referred to is void, still the repealing clause is valid; and that it repeals the act of March 5, 1883, and leaves the control of the police power of the cities therein named to the common council of such cities. It is earnestly maintained by the appellants, on the other hand, that when the act to which the repealing clause is attached fell the repealing clause fell with it, and that as a consequence the act of March 5, 1883, still remains in force.

In the case of Meshmeier v. State, 11 Ind. 482, it was held that a repealing clause attached to an unconstitutional act of the legislature might repeal a former valid statute upon the same subject. The general principle announced in that case is undoubtedly correct; for it must be conceded that the legislature may use such language in the repealing clause attached to an unconstitutional law as to leave no doubt as to its intention to repeal a former law in any event. In such case the law intended to be repealed would cease to exist, even though the law to which the repealing clause was attached should fail by reason of being in conflict with the constitution. Where, however, it is not clear that the legislature, by a repealing clause attached to an unconstitutional act, did not intend to repeal a former statute upon the same subject, except upon the supposition that the new act would take the place of the former one, the repealing clause falls with the act to which it is attached. Bish. Writ. Law, § 34; Tims v. State, 26 Ala. 165; Sullivan v. Adams, 3 Gray, 476;Childs v. Shower, 18 Iowa, 261;Shepardson v. Railroad Co., 6 Wis. 605;State v. Burton, 11 Wis. 51;Devoy v. Mayor, etc., 35 Barb. 264; People v. Tiphaine, 3 Parker, Crim. R. 241; Devoy v. Mayor, etc., 36 N. Y. 449; State v. Hallock, 14 Nev. 202. In the case of Meshmeier v. State, supra, the learned judge who wrote the opinion admits that the authorities are against the conclusion there reached, but says that he is unable to bring his mind to agree with the authorities upon the subject then under consideration. It is believed that the conclusion reached in that case has never been followed either by this or any other court in the Union. Mr. Bishop, in commenting on this case in his valuable work on The Written Law, § 34, says: “But not only the reason just suggested shows that this doctrine cannot be sound in principle. It is also unsound and it has been so adjudged, because, as observed in the Alabama court, ‘if the new...