State, ex rel. Yancey v. Hyde

• Decision Date: 07 November 1889
• Docket Number: 15,126
• Citation: 22 N.E. 644,121 Ind. 20
• Parties: The State, ex rel. Yancey, v. Hyde
• Court: Indiana Supreme Court

22 N.E. 644

121 Ind. 20

The State, ex rel. Yancey, v. Hyde

No. 15,126

Supreme Court of Indiana

November 7, 1889

From the Marion Circuit Court.

Judgment affirmed, with costs.

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

J. E McCullough, L. P. Harlan and S. J. Peelle, for respondent.

Berkshire, J. Coffey, J. Elliott, C. J. Mitchell, J.

OPINION

Berkshire, J.

This action is brought by the appellant to obtain from the appellee, and for the relator, possession of a certain office, and the privilege to exercise the duties thereof, known and designated as "chief of the division of mineral oils."

The complaint alleges the following state of facts, to wit: That on the 9th day of May, 1889, the Governor of the State of Indiana properly and lawfully appointed and commissioned one John Collett as "director of the department of geology and natural resources of the State of Indiana;" that on the 11th day of May, 1889, the said John Collett took and subscribed the oath of office on the back of said commission, and on said day deposited a duly certified copy of said oath in the office of the secretary of state of Indiana; that the said Collett possessed the requisite qualifications, etc.; that on said day the said John Collett, as such director, etc., duly and lawfully appointed and commissioned the relator herein chief of said division, etc., under the name and style of "inspector of mineral oils;" that on the 11th day of May, 1889, said relator took and subscribed the oath of the office, as required by law, and on said day filed the same in the office of the secretary of state, and on said day executed a bond to the State of Indiana in the sum of $ 10,000, conditioned, etc., and that the relator was duly qualified, etc.; that soon after the relator's appointment and qualification he appointed a suitable number of deputies, and in every way prepared himself to perform the duties of his office, and is still prepared so to do; that on the 28th day of February, 1889, one Sylvester S. Gorby intruded into and now usurps and unlawfully holds and exercises the said office of "director of the department of geology and natural resources for the State of Indiana," by virtue of a pretended election to said office by the General Assembly of the State of Indiana at its last session; that he is unlawfully exercising and holding, and pretending to exercise and perform the duties of said office; that on the 28th day of February, 1889, said Gorby unlawfully pretended to appoint the defendant herein to be "chief of the bureau of mineral oils," under the name and title of "inspector of mineral oils;" that acting under said pretended appointment the said defendant, on said 28th day of February, 1889, intruded into and now usurps and unlawfully holds and exercises the duties of "inspector of mineral oils," collecting fees, etc.; that the defendant now is, and always has been, without any other claim or title to said office than as above stated; that after the relator's appointment and qualification he demanded the possession of said office of said defendant, who refused, and still refuses, to surrender the same. Wherefore, etc.

In an act of the General Assembly for the State of Indiana, which came into force on the 26th day of February, 1889, Elliott's Supplement, beginning with section 1863, we find the following provisions:

"Section 1. Be it enacted by the General Assembly of the State of Indiana, That a department of geology and natural resources is hereby established for the purpose of continuing and perfecting the geological and scientific survey of this State, of discovering, developing and preserving its natural resources; recommending and securing the enforcement of laws providing for the health and personal safety of all persons engaged in developing or using the products of its natural resources, and collecting and disseminating information concerning its agricultural, mining and manufacturing advantages. The said department shall comprise four divisions, as follows: First. The division of geology and natural science. Second. The division of mines and mining. Third. The division of mineral oils. Fourth. The division of natural gas.

"Sec. 2. The General Assembly shall, immediately after the taking effect of this act, elect a competent and suitable person, skilled in geology and natural sciences, director of the department of geology and natural resources, who shall be state geologist and curator of the museum and chief of the division of geology and natural science. He shall take an oath of office, as other officers, and hold his office for a term of four years, and until his successor is elected and qualified. He shall appoint the chiefs of divisions provided for in this act, and such other assistants as he may deem necessary in prosecution of the work in the division of geology and natural science, but in no case shall the expenditures under his direction exceed the amount authorized by the General Assembly. The Governor shall, by appointment, fill any vacancy that may occur in the office of director of the department, from any cause, when the General Assembly is not in session, and the person so appointed shall serve as director of the department until the next succeeding session of the General Assembly, when a successor shall be elected by the General Assembly: Provided, however, That no such appointee shall, during such temporary holding, remove any of the chiefs of divisions then serving, but may temporarily fill any vacancies in said offices of chiefs of divisions that may occur by reason of death, resignation or removal from the State during his incumbency of said office of director. The compensation of the director of the department shall be two thousand dollars per year, to be paid as other salaries are required by law to be paid.

"Sec. 6. The office of state inspector of oils is hereby abolished, and the chief of the division of mineral oils, who shall be known as the inspector of mineral oils, shall in all respects perform all the duties now required by law of the state inspector of oils, and receive therefor the same fees and compensation now provided by law for the state inspector of oils. His annual report shall be made to the director of the department, and shall be included in the published report of the director of the department, and he and his assistants shall, in every way, comply with the law pertaining to the inspection of oils not repealed by the provisions of this act."

For the duties and compensation of the "inspector of mineral oils," we are, by the act creating the office, referred to an act of the Legislature, approved September 19, 1881, beginning with section 5151, R. S. 1881.

We do not deem it necessary to make any quotation from that act. It is sufficient to say, that the duties of the inspector of mineral oils pertain to the State at large, and are to be performed for the benefit of the whole people of the State. He is not confined, in the performance of his official duties, to any locality or district, but his authority extends over the entire State. That he is a public functionary there can be no question; the duties which he has to perform are public duties. The act of the Legislature creating the office and defining the duties of the incumbent recognizes him as a public officer, and the position which he holds as an office for the benefit of the public. And as he is an officer whose duties are co-extensive with the State, he is necessarily a State officer.

Having arrived at the conclusion that the office is a State office, and its incumbent a State officer, we are confronted with the question, was there a vacancy in the office at the time the relator claims to have been appointed? This question divides itself into two inquiries:

First. Has the Legislature the same general power to fill that it has to create offices?

Second. If it has, then may it create two offices, elect the incumbent to one of them, and provide that he shall appoint the incumbent to the other?

Unless the two inquiries can be answered in the affirmative there was a vacancy in the office in question when the relator claims to have been appointed, for the reason that there was a vacancy eo instanti--the creation of the office. In our State Constitution we find the following constitutional provision:

"Article 3, section 1. The powers of the government 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 word "function," as here used, means duty; and the clause may be read, "and no person charged with official duties under one of these departments shall exercise the duties of another, except as in this constitution expressly provided." This constitutional provision is easily understood; it is clear and concise in expression.

When applied to the question under consideration, one of two conclusions must follow, or the Legislature was without power to elect the director of the department of geology and natural resources, and therefore without power to confer upon him the power to appoint the appellee to the office in question: (1) The power to appoint to office must be a legislative function, or (2) express power must be lodged somewhere in the Constitution to make such appointment.

We can not give our consent to the affirmative of either of these propositions.

The first inquiry then is, what is legislative power? We copy from the case of City of Evansville v State, ex rel., 118 Ind. 426, 21 N.E....