Tucker v. State

• Citation: 35 N.E.2d 270,218 Ind. 614
• Decision Date: 26 June 1941
• Docket Number: 27547.
• Parties: TUCKER, Secretary of State, et al. v. STATE et al.
• Court: Supreme Court of Indiana

35 N.E.2d 270

218 Ind. 614

TUCKER, Secretary of State, et al. v. STATE et al.

No. 27547.

Supreme Court of Indiana

June 26, 1941

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Marion Circuit Court; Earl R. Cox, Judge.

Gilliom & Gilliom, Pickens, Gause, Pickens & Gause, Fred C. Gause, and Erle A. Kightlinger, all of Indianapolis, for appellants.

George N. Beamer, Atty. Gen., James K. Northam, Deputy Atty. Gen., Frank C. Dailey and Walter Myers, both of Indianapolis, Walter R. Arnold, of South Bend, Samuel D. Jackson, of Fort Wayne, and James P. Hughes, of Greencastle, for appellees.

FANSLER Chief Justice.

This is an action instituted by the Attorney General on behalf of the State of Indiana against the appellants and the appellee Henry F. Schricker as Governor of the State of Indiana, seeking to enjoin the defendants from acting or functioning under certain Acts of the 82nd General Assembly of the State of Indiana (1941 Session). There was a temporary injunction, the issuing of which is assigned as error on this appeal.

By an original action, the jurisdiction of the trial court over the subject matter was questioned, and we held that the court had jurisdiction. State ex rel. Dawson, Lieutenant Governor, et al. v. Marion Circuit Court et al., 1941, Ind.Sup., 33 N.E.2d 515.

If the statutes involved are unconstitutional they are void and confer no legal authority upon those in whom it is sought to vest control over a major portion of the state's business. That an attempt upon the part of such persons to control and manage the state's property and business affairs without legal authority would be injurious and damaging to the state's business and property rights cannot seriously be doubted. The substantial question involves only the constitutionality of the questioned statutes. If they are constitutional it was error to grant the temporary injunction. If they are unconstitutional the injunction was property granted and should be made permanent.

The complaint sets out five separate statutes which are alleged to be unconstitutional. One of these is amendatory of another, so that in fact there are but four statutes involved.

Chapter 13 (Acts 1941, p. 31) provides for the termination of the tenure of office or employment of every officer or member of a board or commission, and every employee or servant within the scope of the act, exclusive of the State Police personnel below the rank of superintendent, the Unemployment Compensation Division below the rank of director, and the State Board of Health below the rank of secretary, upon the taking effect of the act.

It is provided that the Governor shall have jurisdiction over, and to appoint and remove, members of the boards and commissions in charge of or functioning in connection with the following enumerated matters:

'(1) The land and naval militia, including the office of adjutant general, the Armory Board, the Board of Control of State Soldiers' and Sailors' Monument, the Battle Flags Commission, the Grand Army of the Republic, the United Spanish War Veterans, and the Veterans of Foreign Wars;

'(2) State Commission on Clemency;

'(3) State Probation Department, including State Probation Commission;

'(4) State Fire Marshal;

'(5) State Police Department; subject, however, to any provision in any act passed at the 82d session of the General Assembly of the State of Indiana providing for the appointment of members of the State Police Board and of the personnel of the State Police Department.'

The act the provides:

'There are hereby created and established the following administrative departments:

'(1) Department of State;

'(2) Department of Audit and Control;

'(3) Department of Treasury;

'(4) Department of Public Works and Commerce.'

The Department of State is placed in charge of a board consisting of the Secretary of State, who is named as the chief administrative officer of the department, the Governor, and Auditor of State. The following enumerated boards, commissions, offices, and agencies are placed in charge of the Department of State:

'(1) Administration of motor vehicle laws on registration, certificates of title, and operators' and chauffeurs' licenses.

'(2) Board of Registration of Architects;

'(3) State Board of Barber Examiners;

'(4) State Board of Beauty Culturist Examiners;

'(5) Indiana Library and Historical Department, including State Library and Historical Bureau;

'(6) Legislative Bureau;

'(7) Commission on Public Records;

'(8) State Board of Canvassers;

'(9) State Board of Dental Examiners;

'(10) State Board of Embalmers and Funeral Directors;

'(11) State Board of Registration for Professional Engineers and Land Surveyors;

'(12) State Board of Medical Registration and Examination;

'(13) The Indiana State Board of Examination and Registration of Nurses;

'(14) Indiana State Board of Registration and Examination in Optometry;

'(15) Board of Podiatry Examiners;

'(16) Reciprocity Commission;

'(17) State Live Stock Commission;

'(18) Indiana Board of Pharmacy;

'(19) Indiana State Board of Examiners in Watch Repairing;

'(20) Veterinary Examining Board;

'(21) The Stallion Enrollment Board.'

It is provided that no powers and functions accorded to the Secretary of State individually, or the duties imposed upon him individually by statute, or his powers and duties as Securities Commissioner, shall be within the Department of State, but shall be exercised and performed by the Secretary of State individually. It is assumed that this means that he shall exercise these nonincluded powers as Secretary of State.

The Department of Audit and Control is placed in charge of a board consisting of the Auditor of State, who is named as the chief administrative officer of the department, the Governor, and Secretary of State. The following enumerated boards, commissions, offices, and agencies are placed in charge of the Department of Audit and Control:

'(1) Bureau of Public Printing;

'(2) Department of Insurance;

'(3) The Indiana State Teachers' Retirement Fund;

'(4) State Budget Committee;

'(5) Chief Oil Inspector;

'(6) State Athletic Commission;

'(7) State Board of Certified Accountants of Indiana;

'(8) The Indiana Year Book;

'(9) Gross Income Tax, including director;

'(10) Motor Vehicle Fuel Tax.'

It is provided that no powers and functions accorded to the Auditor of State individually shall be included, which is assumed to be intended as having the same effect as the provisions concerning the Secretary of State.

The Department of Treasury it placed in charge of a board consisting of the Treasurer of State, who is named as the chief administrative officer of the department, the Governor, and the Lieutenant Governor. The following enumerated boards, commissions, offices, and agencies are placed in charge of the Department of Treasury:

'(1) Inheritance Tax Administrator;

'(2) Unemployment Compensation Division, including Indiana State Employment Service;

'(3) State Board of Tax Commissioners;

'(4) The Department of Financial Institutions;

'(5) Board for Depositories; '(6) Municipal Loan Board;

'(7) Division of State Publicity.'

There is a provision concerning the powers and functions of the Treasurer of State similar to that in the case of the Secretary and Auditor of State.

The Department of Public Works is placed in charge of a board consisting of the Lieutenant Governor, who is named as the chief administrative officer, the Governor, and the Treasurer of State, charged with the administration of the following enumerated agencies:

'(1) Department of Conservation;

'(2) State Highway Commission;

'(3) Board of Public Buildings and Property;

'(4) State Memorials, including Trustees of the Indiana World War Memorial, George Rogers Clark Memorial Commission, New Harmony Memorial Commission, the Anthony Wayne Memorial Commission;

'(5) Division of Labor, including Industrial Board, Bureau of Mines and Mining, Bureau of Factory Inspection, Bureau of Boiler Inspection, and Bureau of Women and Children;

'(6) State Livestock Sanitary Board;

'(7) Pollution Hearing Board;

'(8) Indiana Wolf Lake Park Commission;

'(9) Central Purchase Bureau of Indiana;

'(10) The State Board of Health;

'(11) Public Service Commission of Indiana;

'(12) The Indiana Board of Public Harbors and Terminals.'

There is a provision that no powers or functions accorded to the Lieutenant Governor individually shall be included in this department.

It is provided that any proceeding, or other business, or matter, undertaken or commenced by 'any division of the Executive, including the Administrative Department of the State of Indiana,' the powers, duties, and functions of which are assigned to these boards, may be conducted and completed by the department to which it is assigned.

It is further provided:

'Whenever any division of the Executive, including the Administrative Department of the State of Indiana, whether the same by a person, body, or organization of whatsoever character, is referred to or designated in any law, contract, or document, such reference or designation shall be deemed to refer to and include the department organized hereunder to which the powers, duties and functions thereof are hereby assigned and transferred or the appropriate authority therein, so far as such law, contract or document pertains to matters which are by reason of such assignment and transfer placed by the terms of this act within the supervision and jurisdiction of the department to which such assignment and transfer is made. * * *

'The several boards of departments created hereby, each in its particular department, shall have full power and authority to adopt and amend...