State ex rel. Yancey v. Hyde

• Decision Date: 18 June 1891
• Citation: 129 Ind. 296,28 N.E. 186
• Parties: State ex rel. Yancey v. Hyde.
• Court: Indiana Supreme Court

129 Ind. 296

28 N.E. 186

State ex rel.

Yancey

v.Hyde.¹

Supreme Court of Indiana.

June 18, 1891.

Appeal from circuit court, Marion county; E. A. Brown, Judge.

A. J. Beveredge, D. H. Chase, De Witt C. Justice, J. W. Vesey, O. H. Bogue, A. L. Brick, J. G. Engle, Bear & Bear, and Faris & Hamill, for appellant. J. E. McCullough, L. P. Harlan, and A. G. Smith, for appellee.

COFFEY, C. J.

The facts in this case, as they are disclosed by the information, are that on the 8th day of November, 1889, the relator was appointed to the office of state inspector of oils for the state of Indiana by the governor, and was duly commissioned to hold his office for the period of two years from that date. He qualified on the 11th day of the same month, and entered upon the discharge of the duties of the office, and has ever since continued to discharge such duties. On the 13th day of March, 1891, the governor appointed the relator to the office of state supervisor of oil inspection for this state, and issued to him a commission to serve for the period of four years from that date, and on the 24th day of the same month he qualified as such officer. In the month of March, 1891, whether before or after the appointment of the relator does not appear, Sylvester S. Gorby, the state geologist, appointed the appellee to the office of state supervisor of oil inspection, under the terms of an act of the general assembly passed in 1891. Under this appointment the appellee qualified and entered upon the discharge of the duties of said office. No commission was issued by the governor to the appellee, nor does it appear that the commission last above mentioned issued to the relator was attested by the secretary of state, or that the seal of the state was thereto attached. This action was commenced by the appellant in the Marion circuit court to determine the right to the office, and to an information setting forth the above facts the court sustained a demurrer. The propriety of this ruling presents the question for our consideration.

The last session of the general assembly passed an act containing the following title: “An act creating the office of state supervisor of oil inspection, prescribing the duties thereof, providing for the appointment of such supervisor, abolishing the office of chief of the division of mineral oils and state inspector of oils, repealing all laws inconsistent therewith, and declaring an emergency.” The act creates the office of state supervisor of oil inspection, and provides that, immediately upon the taking effect of the act, the state geologist shall appoint a skilled and suitable person, a resident of the state, not interested in any way in manufacturing, dealing, or vending any illuminating oils manufactured from petroleum, as state supervisor of oil inspection, whose term of office shall be for the term of four years from the date of his appointment. In case of a vacancy at any time, the act requires the state geologist to fill the same. The state supervisor of oil inspection is subject to removal at any time by the state geologist for any neglect or violation of duty enjoined by law. The act requires the supervisor to appoint deputies, and provides that he and his deputies shall in all respects perform the duties heretofore required by law of the chief of division of mineral oils and his assistants, or state inspector of oils and his deputies; and that they shall receive therefor the same fees and compensation provided by law for the chief of the division of mineral oils and his assistants, or state inspector of oils and his deputies. The state supervisor is required to make a report to the state geologist on the second Monday of January in each year of the inspections made by him and his deputies during the preceding year. He and his deputies are required to comply with the law in force pertaining to the inspection of oils. The second section of the act reads as follows: “The office of state inspector of oils, as created by section 2 of ‘An act providing for the inspection of all kinds of oil that shall be used for illuminating or combustivepurposes, regulating the sale of such oils, providing for certain appointments and removals to be made by the governor, defining what shall constitute certain misdemeanors, prescribing penalties, repealing certain laws, and containing other matters properly connected therewith,’ approved April 11, 1881, as well as the office of chief of the division of mineral oils, created by section 6 of ‘An act establishing a department of geology and natural resources of the state of Indiana, and providing for a director of the department, abolishing the department of geology and natural history, and the office of state geologist connected therewith, abolishing the offices of mine inspector and state inspector of oils, repealing all laws or parts of laws conflicting with any of the provisions of this act, and declaring an emergency,’ passed, over the governor's veto, and in force February 26, 1889, are hereby abolished; and all the duties and requirements now and heretofore devolved by law upon such officers shall be performed by the state supervisor of oil inspection.” The act repeals all laws and parts of laws inconsistent with its provisions, and contains an emergency clause.

It is contended by the appellant that this act is unconstitutional for the reasons- First, that the same is in conflict with the provisions of section 19, art. 4, of the constitution, which reads as follows: “Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title;” second, that the general assembly has no power, under the constitution, to confer on the state geologist the right to appoint to the office in controversy; third, that the act is in conflict with the provisions of section 8, art. 6, of the constitution, which reads as follows: “All state, county, township, and town officers may be impeached, or removed from office, in such manner as may be prescribed by law.”

The construction to be placed upon section 19, art. 4, supra, we regard as settled by the ably-written opinion in the carefully considered case of Hingle v. State, 24 Ind. 28. Expressing regrets that the cases upon the subject of the construction of this constitutional provision were in conflict, the court, after a careful review of the cases, reached the conclusion that the mischiefs intended to be prevented by this section were two, namely: “ First. The passage of any act under a false and delusive title, which did not indicate the subject-matter contained in the act,-a trick by which members of the legislature had been deceived into the support of measures in ignorance of their true character. Second. The combining together in one act of two or more subjects, having no relation to each other,-a method by which members, in order to procure such legislation as they wished, were often constrained to support and pass other measures obnoxious to them, and possessing no intrinsic merit.” The same ruling was made in the case of Farbach v. State, 24 Ind. 77.

Had the general assembly passed a separate act entitled “An act abolishing the office of chief of the division of mineral oils and state inspector of oils,” containing the provisions found in the act before us, no one would doubt that the office previously held by the appellant was abolished, and that the title was sufficiently broad to cover the act. So, if it had passed a separate act entitled “An act creating the office of state supervisor of oil inspection, prescribing the duties thereof, providing for the appointment of such supervisor,” followed by the provisions upon that subject found in the act before us, it could not be doubted that a new officer had been created, the mode of his selection prescribed, and his duties fixed, and that the title of such act was sufficient. Indeed, we do not understand the counsel for appellant as contending that the act in question is not covered by title; but the contention is that the act does not, in fact, do what it purports to do. The argument is that an office consists of duties to be performed, services to be rendered, directions to be followed, and emoluments to be received, and not in a name; and that, for this reason, the act does not abolish one office and create another.

Many definitions of an office are set out in the able brief filed on behalf of the appellant, but we deem it unnecessary to set them out or to analyze them in this opinion; for, assuming that the essence of an office consists of duties to be performed, services to be rendered, directions to be followed, and emoluments to be received, we do not think it follows that the general assembly, by the act under consideration, did not abolish one office and create another. In considering statutes, it is our duty to ascertain, if possible, the intention of the legislative body; and, when that intention is ascertained, it is our duty to enforce it, unless it violates some provision of the constitution. The case of State v. Wiltz, 11 La. Ann. 439, is not in point here, for in that case it was expressly held by the court that the legislature did not intend to abolish one office and create another, and the decision turns upon the question of the legislative intent. Here there is no doubt as to the intention of the legislature. As we understand the brief for the appellant, it is conceded that it was the intention to vacate the office held by the appellant with a view of making a place for some other person, and this the legislature undertook to do by abolishing the office held by the appellant, and creating one to be filled by an appointment made by the state geologist. This, we think, was the plain intention; and this, we think, the legislature has done, unless there is some provision in our constitution which prohibits such legislation. It is perfectly plain, we think, that there is now no office...