State ex rel. Worrell v. Peelle

• Decision Date: 07 November 1889
• Docket Number: 14,978
• Citation: 22 N.E. 654,121 Ind. 495
• Parties: The State, ex rel. Worrell, v. Peelle
• Court: Indiana Supreme Court

22 N.E. 654

121 Ind. 495

The State, ex rel. Worrell, v. Peelle

No. 14,978

Supreme Court of Indiana

November 7, 1889

Petition for a Rehearing Overruled Feb. 4, 1890.

From the Marion Superior Court.

The judgment is reversed, at the costs of the appellee, and the cause remanded to the court below, with instructions to overrule the demurrer, and for further proceedings in accordance with this opinion.

L. T Michener, Attorney General, A. C. Harris, A. J. Beveridge, L M. Campbell and J. H. Gillett, for appellant.

S. J Peelle, W. L. Taylor, J. E. McCullough and L. P. Harlan, for appellee.

Olds, J. Elliott, C. J. Mitchell, J., concurs with Elliott, C. J.

OPINION

Olds, J.

The relator filed his information to obtain possession of the office of chief of the "Indiana Bureau of Statistics," to which office he claimed to have been duly appointed by the Governor of the State, and for the removal of the defendant, William A. Peelle, Jr., who it is alleged had usurped and illegally continued to hold such office.

The defendant demurred to the information in the court below, stating two causes of demurrer:

"First. That the complaint does not state facts sufficient to constitute a cause of action.

"Second. That the plaintiff has not legal capacity to sue."

The court sustained the demurrer, to which ruling the plaintiff excepted at the time, and elected to stand on the information as filed; thereupon the court rendered judgment for the defendant. From this judgment the plaintiff appeals, and assigns as error the ruling of the court in sustaining the demurrer to the information.

It is contended by counsel for the appellee that, notwithstanding the relator may be entitled to the office, and the defendant has usurped, and continues to illegally hold it, the information does not state facts sufficient to entitle the relator to the relief asked, and that the demurrer was rightfully sustained.

This question we have considered, and think the information not subject to the objections urged to it, and that it is sufficient. It alleges facts showing the date of appellant's appointment; that there was at the time a vacancy in the office; that the relator was duly appointed by the Governor of the State, and that he is eligible to the office; that the defendant had usurped and illegally held it, and a demand for the possession of the office.

This brings us to the consideration of the chief and leading questions in the case.

The Legislature of the State in 1879 passed an act creating a department of statistics, and the first section of the act (R. S. 1881, section 5717) declared the purpose of the act to be "for the collection and dissemination of information, hereinafter provided, by annual printed reports made to the Governor and Legislature of the State."

The second section provided for the appointment of a chief, and is as follows: "The Governor is hereby authorized to appoint, as soon after the passage of this act as convenient, and thereafter biennially, some suitable person to act as chief, who shall have power to employ such assistants as he may deem necessary, and said officer and assistants shall constitute the Indiana Bureau of Statistics, with headquarters to be furnished by the State."

Section three prescribed the duties of the bureau, as follows: "The duties of said bureau shall be to collect, systematize, tabulate and present in annual reports, as hereinafter provided, statistical information and details relating to agriculture, manufacturing, mining, commerce, education, labor, social and sanitary condition, vital statistics, marriages, and deaths, and to the permanent prosperity of the productive industry of the people of the State."

Section four made it the duty of all persons, officers and corporations to give and furnish information on blanks, and in answer to questions relating to the duties of the bureau. The act provided for the salary of the chief, and prescribed penalties for a failure to give information.

By an act passed in 1883 (Elliott's Supp., section 1852) section two of the act of 1879 was amended, and the amended section made it the duty of the two houses of the General Assembly, in joint convention, to select at its regular biennial session the chief, and in case of vacancy in the office by death, resignation or dismissal, the Governor should supply the vacancy by appointment, and provided that the first election of such chief should be held on the taking effect of the act.

In 1889 the Legislature passed an additional act relating to such bureau of statistics, by which they impose additional duties on the chief of the bureau. Elliott's Supp., section 1854. Section 1 provides that, "in addition to the other duties now imposed by law on the chief of the Indiana Bureau of Statistics, he shall collect, compile, and systematize statistics, with reference to the subject of labor, in its social, educational, industrial, and general condition, wages and treatment of all classes of our working people, to the end that the effects of the same upon the permanent prosperity and productive industry may be shown, and shall report to the Legislature, in convenient form, the results of his investigation."

Section 2 provides that "the duties of such bureau shall be to collect in the manner hereinafter provided, assort, systematize, print and present in biennial reports to the Legislature statistical details relating to all departments of labor in this State, including the penal institutions thereof, particularly concerning the hours of labor, the number of laborers and mechanics employed, the number of apprentices in each trade, with the nativity of such laborers, mechanics, and apprentices, wages earned, savings from the same, the culture, moral and mental, with age and sex of persons employed; the number and character of accidents, the sanitary condition of institutions where labor is employed, as well as the influences of the several kinds of labor, and the use of intoxicating liquors upon the health and mental condition of the laborers; the restrictions, if any, which are put upon apprentices when indentured; the proportion of married laborers and mechanics who live in rented houses, with the average annual rental of the same; the average number of members in the families of married laborers and mechanics; the value of property owned by laborers or mechanics (if foreign born) upon their arrival in this country, and the length of time they have resided here; the subjects of co-operation, strikes, or other labor difficulties; trades-unions, and other labor organizations, and their effects on labor and capital, with such other matter relating to the commercial, industrial and sanitary condition of the laboring classes and permanent prosperity of the respective industries of the State as such bureau may be able to gather, accompanied by such recommendations relating thereto as the bureau may deem proper."

Section 3 authorizes the chief and deputy to examine witnesses, and gives them power to compel persons to produce and give the information desired.

Section 4 prescribes penalties for a refusal to furnish information, and answer questions asked by the chief and his deputy.

Section 5 authorizes the employment of a deputy by the chief, at a salary of $ 1,000 per annum, and the employment of other assistants.

Section 6 appropriates $ 5,000 additional per annum to carry out the provisions of the act.

Section 7 allows the chief $ 600 additional salary, making, in all, $ 1,800 per annum.

By section 8 it is made the duty of the chief to transmit, immediately on publication, one copy of the biennial report of the bureau to each county and State officer in Indiana.

It is contended, on the part of the appellant, that the chief of the Indiana Bureau of Statistics is a State officer, and that the law is unconstitutional in so far as it provides for the election of such officer by the General Assembly, and that the election held by the General Assembly at which the appellee was elected was illegal and void, and gave the appellee no title to the office; and that there was a vacancy in such office at the time the relator was appointed, which the Governor had the right to fill by appointment; which he did by the appointment of the relator, Worrell.

On the other hand, it is contended by the appellee that it is a legislative office, which the General Assembly had a right to fill by election, as prescribed by the law, and that although it may not be a legislative office, and is in fact a State office, yet the General Assembly had the right to fill such office by an election, as provided for by the act of 1883; that the Legislature has the right to create a State office and prescribe by law that the General Assembly shall elect such officer.

It is admitted, and must be, that the Legislature of the State may exercise appointing power, and select officers to fill the various offices which are peculiarly related to and connected with the exercise of its constitutional functions, and such as are necessary for it to appoint to maintain its independent existence, and this we think the limit of the appointing power of the Legislature unless additional has been given by the express provisions of the Constitution, or acquired by construction under the rules of practical exposition.

We have therefore set forth in detail the provisions of the various acts relating to the object of creating the Indiana Bureau of Statistics, and the duties and powers of the chief of such bureau, and from such provisions we are to determine whether or not such officer is one which the Legislature has the right to elect.

It is contended by counsel for appellee that the object of this bureau is for the purpose of having collected...