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private rights, can only be sustained under and that they are also in direct antagonism the police power of the state, while the estab- with the decisions of the courts in every othlishment of a scientific bureau or department er state where like questions have been conis a subject of an essentially different nature. sidered, I can only record an earnest and emSubjects so diverse cannot be embodied in one phatic dissent from the judgment on the prin. act, since to permit this would be to permit cipal questions, and an unqualified concur. the evil which the provision of the constitu- rence in the opinion of the chief justice. tion quoted was designed to destroy. Railroad Co. v. Potts, 7 Ind. 681; Grubbs v. State, 24 Ind. 295; State v. Tucker, 46 Ind. 355-360;

(121 Ind. 495) Johnston v. Spicer, 107 N. Y. 185-202, 13 N. STATE ex rel. WORREL 0. PEELL.. 1 E. Rep. 753; Leach v. People, 122 Ill. 420, 12

(Supreme Court of Indiana. Nov. 7, 1889.) N. E. Rep. 726; Cutlip v. Sheriff, 3 W. Va. 588; Davis v. State, 7 Md. 151; State v. Har- CONSTITUTIONAL LAW - LEGISLATIVE POWERS –

STATE OFFICERS. rison, 11 La. Ann. 722; State v. Heywood, 38 La. Ann. 689; People v. Mahaney, 13 ics for

the collection and dissemination of informa

1. Act Ind. 1879, created a department of statistMich. 481-490; Ballentyne v. Wickersham, tion by annual reports made to the governor and leg 75 Ala. 533-539; Payne v. Mahon, 41 N. J. islature. The governor was authorized to appointa Law, 292; Skinner v. Wilhelm, 30 N. W. chief, who could employ assistants. The duties of

the bureau were defined to be" to collect, systemize, Rep. 311; People v. Beadle, 60 Mich. 22, 26 tabulate, and present * information and de N. W. Rep. 800; Murphy v. State, 9 Lea, tails relating to agriculture, manufacturing, min373; Ragio. v. State, 2 Pickle, 272, 6 S. w. ing, commerce, education, labor, social and sanitary Rep. 401; State v. McCann, 4 Lea, 1; San etc. Act 1883 (Elliott's Supp. 1852) amended this

condition, vital statistics, marriages and deaths,” Antonio v. Gould, 34 Tex. 49.

act, and made it the duty of the legislature to seThe act plainly betrays its own weakness, lect the chief. In 1889 the legislature added to the for it declares that it covers four divisions, duties of the bureau, and required labor statistics and, of these, three at least are complete and and mechanics, their nativity, wages, savings, and

of distinct subjects, each requiring and receiv- culture, and numerous other statistics, and also ing different treatment. Names go for but provided a penalty for refusing to answer ques little, and naming the subjects "divisions” tions asked by the chief and his deputy. An ap

propriation from the general fund was made for does not make them mere parts of one gen- the salary of the chief and the expenses of the de eral subject. Whether they are each sub-partment, and the chief was required to transmit jects, or all mere parts of one subject, is to a copy of his report to each county and state ofibe determined from their essential elements; was a state, and not a legislative, office.

cer. Held, that the office of chief of the bureau for the legislature cannot, by any mere form 2. Const. Ind. art. 3, § 1, divides the powers of of words, change the nature of a thing, and government into the three departments, and proby that course evade the constitution.

vides that no person charged with official duties under one shall exercise any of the functions of an.

other, except as in the constitution expressly proMITCHELL, J. The conclusions reached in vided. Article 4 defines the powers of the legislatthe opinion by ELLIOTT, C. J., meet my cor- ure, but it is nowhere provided in what manner an

officer to fill an office created by law shall be elected. dial approval. Nothing can be said by me The governor is expressly authorized to fill vacanwhich would add force to his clear and well-cies in state offices. The old constitution granted to sustained argument. Even if it were conceded the legislature the power to elect state officers, but that the legislature had no power to elect the state officers created by the constitution is reserved

by the present constitution the power of electing all state geologist and the statistician, it is im- to the people. Article 15, $ 1, provides that "all possible to maintain the conclusion that a va. officers whose appointments are not otherwise procancy occurred in those offices, or that they vided for in this constitution shall be chosen in

such manner as now is, or hereafter may be, prewere vacant at the time the governor assumed scribed by law." Held, that the last provision did the right to appoint their successors. The not authorize the legislature to vest in itself the present incumbents were both legally ap- election of such a state officer as the chief of the pointed, and were holding their offices under bureau of statistics. ELLIOTT, C. J., and MITCHELL,

J., dissenting. legal appointment, when they were elected by

3. Rev. St. 1881, $ 4678, providing for a biennial the last legislature; and, if it were conceded general election by which all existing vacancies in that this last election was utterly void, then, office shall be filled, authorizes the people at such under all the authorities, the incumbents election to choose the chief of the bureau of statiswould continue to hold under that provision office until the election by the people.

in of the constitution which declares that offi. 4. An information alleging facts showing the cers shall continue to hold until their suc- there was at the time a vacancy in the office; that

date of relator's appointment to an office; that cessors shall have been legally elected and relator was eligible, and was duly appointed by the qualified. This provision of the constitution governor; that defendant has usurped and illegalhas been utterly disregarded. With an abid- ly held the office; and making a demand for the of ing conviction that the reasoning employed, given possession of the office.

fice,-states facts sufficient to entitle relator to be and the conclusions reached, in the opinion of the court, on all the vital questions in- Appeal from circuit court, Marion county; volved, are radically unsound, and in open LIVINGSTON HOWLAND, Judge. conflict with all the previous decisions of this L. T. Michener, Atty. Gen., A. C. Harris, court, and with the practical exposition A. J. Beveridge, L. M. Campbell, and John which the constitution has received since the H. Gillette, for appellant. Peelle & Taylor, first organization of the state government, for appellee.

· See 24 N. E. 440.

OLDS, J. The relator filed his information to give and furnish information on blanks, to obtain possession of the office of chief of and in answer to questions relating to the the Indiana bureau of statistics, to which of duties of the bureau. The act provided for fice he claimed to have been duly appointed the salary of the chief, and prescribed penalby the governor of the state, and for the re- ties for failure to give information. By an moval of the defendant, William A. Peelle, act passed in 1883, (Elliott's Supp. 1852,) Jr., who, it is alleged, had usurped and ille- section 2 of the act of 1879 was amended, and gally continued to hold such office. The de- the amended section made it the duty of the fendant demurred to the information in the two houses of the general assembly, in joint court below, stating two causes of dem urrer: convention, to select, at its regular biennial First, that the complaint does not state facts session, the chief, anil, in case of vacan"y in sufficient to constitute a cause of action; the office by death, resignation, or dismissal, second, that the plaintiff has not legal capac- the governor should supply the vacancy by ity to sue.”

The court sustained the demur-appointment, and provided that the first rer, to which ruling the plaintiff excepted at election of such chief should be held on the the time, and elected to stand on the infor- taking effect of the act. In 1889 the legislamation as filed, whereupon the court renıleredture passed an additional act relating to such judgment for the defendant. From this bureau of statistics, by which they impose judgment the plaintiff appeals, and assigns as additional duties on the chief of the bureau. error the ruling of the court in sustaining the Section 1 provides "that, in addition to the demurrer to the information.

other duties now imposed by law on the It is contended by counsel for the appellee chief of the Indiana bureau of statistics, he that notwithstanding the relator may be en- shall collect, compile, and systemize statisttitled to the office, and the defendant has ics with refeience to the subject of labor, in usurped and continues to illegally hold it, the social, educational, industrial, and general information does not state facts sufficient to condition, wages, and treatment of all classes entitle the relator to the relief asked, and that of our working people, to the end that the the demurrer was rightfully sustained. This effect of the same may be shown; and shall question we have considered, and think the in- report to the legislature, in convenient form, formation not subject to the objections urged the results of his investigations.” Section 2 to it, and that it is sufficient. It alleges facts provides that “the duties of such bureau showing the date of appellant's appointment; shall be to collect in the manner hereinafter that there was at the time a vacancy in the provided, 'assort, systemize, print, and preoffice; that the relator was duly appointed by sent biennial reports to the legislature, stathe governor of the state, and that he is eli- tistical details relating to all departments of gible to the office; that the defendant had labor in this state, including the penal instiusurped and illegally held it; and a demand tutions thereof, particularly concerning the for the possession of the office. This brings hours of labor; the number of laborers and us to the consideration of the chief and lead- mechanics employed; the number of apprening questions in the case. The legislature of tices in each trade; with the nativity of such the state, in 1879, passed an act creating a lahorers, mechanics, and apprentices; wages department of statistics; and the first section earned; savings from the silme; the culture, of the act (Rev. St. 1881, § 5717) declared inoral and mental, with age and sex, of perthe purpose of the act to be “for the collec- sons employed; the number and character of tion and dissemination of information herein- accidents; the sanitary condition of instituafter provided, by annual reports made to tions where labor is employed, as well as the the governor and legislature of the state.” influence of the several kinds of labor, and The second section provided for the appoint- the use of intoxicating liquors upon the ment of a chief, and is as follows: "The gov- health and mental condition of the laborers; ernor is hereby anthorized to appoint, as soon the restrictions, if any, put u on apprentices after the passage of this act as convenient, when indentured; the proportion of marand thereatter biennially, some suitable per- ried laborers and mechanics who live in son to act as chief, who shall have power to rented houses, with the average annual rentemploy such ass stants as he may deem nec-al of the same to average members of the essary; and said otlicer and assistants shall families of married laborers and mechanics; constitute the Indiana bureau of statistics, the value of property owned by laborers or with head-quarters to be furnished by the mechanics (if foreign born) upon their arrivstate. Section 3 prescribed the duties of al in this country, and the length of time the bureau as follows: "The duties of said they have resided here; the subjects of cobureau shall be to collect, systemize, tabu- operation, strikes, or other labor difficulties, late, and present in annual reports, as here- trades-unions, and other labor organizations, inafter provided, statistical information and and their effect on labor and capital; with details relating to agriculture, manufacturing, such other matters relating to the commermining, commerce, education, labor, social cial, industrial, and sanitary condition of the and sanitary condition, vital statistics, mar- laboring classes, and permanent property of riages and deaths, and to the permanent the respective industries, of the state, as prosperity of the productive industry of the such bureau may be able to gather; accompeople of the state.” Section 4 made it the panied by such recom mendation relating duty of all persons, officers, and corporations thereto as the bureau may deem proper.

Section 3 authorizes the chief and deputy to bureau shall make a full and complete deexamine witnesses, and gives them power to tailed report of his investigation to them, and compel persons to produce and give the infor- that he shall make such recommendations mation desired. Section 4 provides penalties with reference thereto as he may deem propfor a refusal to furnish information and an-er. We cannot agree with this theory. The swer questions asked by the chief and his first section of the act of 1879 provides that deputy. Section 5 authorizes the employ- the chief shall report both to the governor ment of a deputy by the chief at a salary of and the legislature; and that section has not $1,000 per annum, and the employment of been amended or repealed, and is still in other assistants. Section 6 appropriates force. The act of 1889 makes it the duty of $5,000 additional per annum to carry out the the chief to send one copy of his report, as provisions of the act. Section 7 allows the soon as printed, to each county ani state ofchief $600 additional salary; making, in all, ficer. If we are to limit the object and pur$1,800 per annum. By section 8 it is made pose of the bureau to furnishing information the duty of the chief to transmit, immediate to those to whom the chief is to report, or ly on publication, one copy of the biennial re- furnish copies of the report, the object is as port of the bureau to each county and state much to furnish information for the governor oificer in Indiana.

and the individual state and county officers It is contended on the part of the appellant of the state as to furnish information to the that the chief of the Indiana bureau of sta- legislature; for they are each and all to be tistics is a state officer; and that the law is furnished with a report, and the information unconstitutional in so far as it provides for it contains. We think the object and purthe election of such officer by the general as- pose of creating the bureau, and putting an sembly; and that the election held by the Ollicer at its head, is much broader than that general assembly at which the appellee was contended for by counsel for appellee. It is elected was illegal and void, and gave the ap- to gather and systemize statistical informapellee no title to the office; and that there tion and details relating to agriculture, manwas a vacancy in such office at the time the ufacturing, mining, commerce, education, relator was appointed, which the governor labor, social and sanitary condition, vital stahad the right to fill by appointment, which tistics, marriages and deaths, and the proshe did by the appointment of the relator, perity and productive industry of the people Worrel. On the other hand, it is contended of the state, that all the people of the state by the appellee that it is a legislative office, may know the facts gathered relating to the which the general assembly had a right to resources of the state, the condition of its fill by election, as prescribed by the law; and laborers, its social and sanitary condition, that although it may not be a legislative of- and as to the education and prosperity of its fice, and is, in fact, a state office, yet the gen- citizens, for the good of the people of the eral assembly had the right to fill such office state, and the development of its industries, by an election, as provided for by the act of and good of its citizens. To this end the re1883; that the legislature has the right to ports are required to be distributed so as to create a state office, and provide by law that be accessible to all; and not only that it may the general assembly shall elect such officer. be known by, and the information furnished It is admitted, and must be, that the legisla- to, the citizens of the state, but that the peoture of the state may exercise appointing ple of other states and the world may know power, and select officers to fill the various in regard to the products of the state, and of Offices which are peculiarly related to and our mining, manufacturing, and educational connected with the exercise of its constitu- interests, the condition of our laborers, and tional functions, and such as are necessary our social and sanitary conditions; and to for it to appoint to maintain its independent this end it provided for a liberal distribuexistence; and this we think the limit of the tion of the reports of the chief,--that one appointing power of the legislature, unless may be placed in the hands of every state and additional has been given by the express pro- county officer. When the people are put in visions of the constitution, or acquired by possession of this information, the legislaconstruction under the rules of practical ex- tors, who are of the people, elected by and position. We have therefore set forth in de- come from the people, at frequent intervals, tail the provisions of the various acts relat- are possessed of this information, and preing to the object of creating the Indiana bu-pared to direct wise legislation. When all reau of statistics, and the duties and powers the people are possessed of this information, of the chief of suchbureau, and from such it is far better than if but the legislators were provisions we are to determine whether or informed of it. If the information disclosed not such officer is one which the legislature such a state of facts as that suggested, and has the right to elect.

required legislation, it would provoke discusIt is contended by counsel for appellee that sion as to the proper legislation to remedy the object of this bureau is for the purpose of any evil which might exist within the state. having collected and systemized such facts Remedies would be suggested, and legislators pertaining to labor and kindred subjects as selected whose views corresponded with the might become important to direct the gen- views of the majority; and thus the will of eral assembly in making wise legislation, and the majority of the people of the state would to that end they require that the chief of such 'be expressed by a law prescribing a remedy for the evil, if one existed, or the betterment by which we mean the people composing the of the people, or development of the indus- state—may divide its sovereign powers tries of the state.

among various functionaries, and each in the Fortunately, in passing upon this ques- limited sense would be sovereign in respect tion, we are not left to our own views alone to the powers confided to each, and dependent in determining the question as to whether in all other cases. Strictly speaking, in our this is a legislative office or not, with the leg- republican forms of governm nt the absolute islature claiming it as such, and the governor sovereignty of the nation is in the people of claiming that it is not; for we have evidence the nation; and the residuary sovereignty of in the law itself that the legislature which each state, not granted to any of its public enacted the first act upon the subject, cre- functionaries, is in the people of the state.” ating the bureau and providing for a chief, Judge Cooley, in the same work, at page 47, did not regard it as a legislative office. The says: “In considering state constitutions, we act of 1879 provided that the governor should must not commit the mistake of supposing appoint the chief. Therefore we think it that, because individual rights are guarded must be conceded that the legislature creating and protected by them, they must also be the office did not rug.ird it as a legislative of- considered as owing their origin to them. fice. If it had been so regardled by that leg- These instruments measure the powers of is!ature, it would have elected the officer. the rulers, but they do not measure the rights Certainly, the legislative department would of the governed.” Again, on the same page, not call upon another department of the state he says: “It grants no rights to the people, government to appoint or elect an officer that but is the creature of their power,-the inwas within its prerogative to elect. Indeed, strument of their convenience;” and again it seems to us that there can be no reasonable he says: “A written constitution is, in every doubt on this question; for the nature of instance, a limitation upon the powers of the office, the information to be gathered, is government in the hands of agents; for there for the benefit of the whole people of the never was a written republican constitution state. The duties of the office relate to and which delegated to functionaries all the laatfect all the people of the state. The officer tent powers which lie dormant in every nais given power to inquire into the business, tion, and are boundless in extent, and incathe finances, and the social relations of all pable of definition.” On page 208 of the the people. He is given almost unlimited same work, Judge Cooley says: “It does not power to inquire into nearly all matters af- follow, however, that, in every case, the fecting the interests of the people, and may courts, before they can set aside a law as incompel all to answer his questions, and fur- valid, must be able to find in the constitution nish the information desired. The officer's some specific inhibition which has been dissalary is paid out of the general funds of the regarded, or some express command which state, and appropriations are made from the has been disobeyed. Prohibitions are only general funds to pay the expense of gather- important where they are in the nature of ing the information. The officer is in no way exceptions to a general grant of power; and, connected with the exercise of legislative if the authority to do an act has not been functions; nor is his appointment necessary granted by the sovereign to its representafor the purpose of the legislature in maintain- tive, it cannot be necessary to prohibit its ing its independent existence; nor has the being done. legislature acquired the right to appoint such From these general and well settled prinofficer by a construction of the constitution, ciples laid down by Judges Cooley and Story, under the rule of practical exposition. In thus logically flows, and they inevitably and view of the object of the law, and the nature conclusively establish, the principle that beof the office, it is unquestionably a state of- fore the adoption of the constitution, and fice; and we find, upon examination of the delegating power to the various departments laws of other states, that offices of this char- of government, there existed in the sovereign acter are not regarded by the legislatures of —the people of the state-all power, includother states as in any sense legislative offices, ing the right to elect their own officers and coming within the prerogative of the legisla- rulers; and unless they delegated the power ture to elect the officers.

to create an office, and elect the officer, to Having reached this conclusion, the next some department of the state government, question for determination is the right of the that power still rests with the people, and legislature, under the constitution, to create the right to create the office is one thing, and a state office, and fill it by the general assem- the right to elect the officer another; and if bly's electing the officer. This brings us to they have delegated power to create the office, the consideration of the power of the general and not to elect the officer, they (the people) assembly. This must be determined by some still have the right to elect. It is conceded general principles. Judge Cooley, in his that the right to create the office is delegated work on Constitutional Limitation, (5th Ed., to the legislature, and we need not consider p. 37,) says: “The theory of our political that question. system is that the ultimate sovereignty is in. It is denied by the appellant that the genthe people, from whom springs all legitimate eral assembly las the right to elect a state authority.” Story, in his work on the Con- officer, and it is contended that the governor stitution, (section 208,) says: “The state - 'has the right to appoint, at least where there is a vacancy, and that there is a vacancy inercise any of the functions of another, except this case. On the other hand, it is contended as in this constitution expressly provided.” by the appellee that the general assembly has By section 1, art. 4, it is declared that “the the right to elect a state officer, and that such legislative authority of the state shall be power is conferred by section 1, art. 15, of vested in the general assembly, which shall the state constitution, which is as follows: consist of a senate and house of representa“All officers whose appointments are not tives;" and by section 16, same article, it is otherwise provided for in this constitution declared that “each house shall bave all puwshall be chosen in such manner as now is, or ers necessary for a branch of the legislative hereafter may be, prescribed by law.” If department of a free and independent state.” such power is conferred at all, it is by this This is all the general power granted to this section; and we need not consider any other department, and it is nowhere provided in section or clause of the constitution, except what manner an officer to fill an office created such as is necessary to aid in the interpreta- by law shall be elected. The constitution, tion and construction of this section. A con- by its terms, declares and vests the executive struction has been given to this section of the power of the state in the governor, and it constitution adversely to the theory of coun- specifically authorizes the governor to fill vasel for appellee by decisions of this court, in cancies in state offices. There is no proviswhich a majority of the judges of the court con- ion in the constitution declaring by whom a curred. State v. Denny, 118 Ind. 382, 21 N. state officer shall be chosen or elected to a E. Rep. 252; Evansville v. State, 118 Ind. state office created by law. It seems mani426, 21 N. E. Rep. 267; State v. Denny, 118 fest by the change made in the constitution, Ind. 449, 21 N. E. Rep. 274.

v.22N.E.no.19--42

taking away the power granted by the old Holding that giving the legislature power constitution to the general assembly to elect to prescribe by law the manner of electing state officers, and the people retaining the an officer does not confer the power to elect, power to elect all state officers created by the and that there is a manifest distinction be- new constitution, and providing that the tween providing the mode of doing a thing people should elect them, and granting to no and doing the thing itself, these opinions are department of government the right to elect supported by the cases of State v. Kennon, 7 officers to fill the state offices which might Ohio St. 546, and Jones v. Perry, 10 Yerg. 59. thereafter be created by law, that one of the The conclusions reached in these cases we principal objects in revising the constitution think are correct, and give the proper construc- was to take from the legislative and execution to this section of the constitution. In tive departments of the government all powthis connection, it is right to consider and er to fill state offices by the appointment or determine what is the proper method of elect- election of such officers. ing state officers, and who have the right to In the Constitutional Debates (volume 2, at elect. It will be seen by reference to the old page 138) we find Mr. Holman, who was a constitution that representatives and sena- member of the convention, saying in a speech: tors were elected by the people; also county “It will be recollected that we do not intend and township officers, and the governor anu to confer upon the legislature the power of lieutenant governor, were elected by the peo-appointing. There may possibly be two or ple. All other state executive officers were three offices, the appointment to which will elected by joint vote of both houses of the be vested in the legislature;” and nowhere general assembly, as were also the president. do we find this assertion controverteil. We Judges of the circuit courts, and the judges also find in the address issued by that conof the supreme court were appointed by the vention to the electors of the state, setting governor, by and with the advice of the sen- forth the changes proposed, a statement that ate, and they appointed the clerk of this court. “the secretary of the state, auditor of state, Rev. St. 1843, pp. 97, 100-102. The constitu- and treasurer of state, who were elected untion also provided for the election of other offi- der the old constitution by the legislature, are cers by the vote of both houses. By the new now elective by the people.” There is also constitution the people changed the system the following statement in regard to the elecof electing state officers so as to revest in the tion of judges: “The supreme and circuit people of the state at large the right to vote judges heretofore chosen, the former by apfor and elect all administrative state officers pointment of the governor, contirmed by the provided for in the constitution, and all the senate, and the latter by joint vote of both judges and the clerk of the supreme court; houses, are by the new constitution elected and also provided for the election of the su- by the people;” and it is stated that "there perintendent of public instruction. In the is to be elected by the people a prosecuting first article and first section of the new con- attorney for each judicial circuit." It seems stitution they declare “that all power is in- to be evident that, if the office now under herent in the people.” By section 1, art. 3, consideration had been created by the constithey divide the powers of the government tution, the mode of electing the officer would into three separate departments,—“the legis- have been declared to be by election by the lative; the executive, including the adminis- people. No greater reasons exist why the sectrative; and the judicial,”—and declare and retary of state or the superintendent of public say that “no person charged with official du- instruction should be elected by the people than ties under one of these departments shall ex- the office of chief of the bureau of statistics.

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