119 Ind. 395 | Ind. | 1889
Lead Opinion
The judgment from which the present appeal is prosecuted requires the appellant, as Governor of the State of Indiana, to issue to the relator, Joseph U. Carson,
It may aid in arriving at a proper conclusion to recur briefly to the legislative history of the benevolent institutions of the State, so far, at least, as it relates to the hospital for the insane. The Constitution under which the State government was organized in 1816, made it the duty of the General Assembly “ to provide one or more farms, to be an asylum for those persons who, by reason of age, infirmity, or other misfortunes, may have a claim upon the aid and beneficence of society.” Sec. 4, art. 9. Pursuant to the duty thus enjoined, the General Assembly, by an act approved January 13th, 1845, created a board, consisting of three commissioners, who were named in the act, and who were directed to select and purchase a suitable tract of land upon which to locate a • “ State lunatic asylum.” They were authorized to receive subscriptions and donations, and to advertise for plans and receive proposals for the erection of suitable buildings, and were required to report to the General Assembly at its next meeting. On January 25th, 1847, five commissioners were appointed by the General Assembly to succeed those previously appointed. By an act approved February 15th, 1848, it was declared that there should be six commissioners of the Indiana Hospital for the Insane, whose term of service should be six years from the date of their appointment, “ to be
The first Legislature that assembled after the revised Constitution was adopted, in obedience to the mandate above set out, enacted laws providing for the support and government of the benevolent institutions of the State. It was provided that six commissioners of the hospital for the insane were to be elected by the joint vote of the General Assembly, three of whom were to serve two years, and three four years, and until their successors were elected by the General Assembly. These commissioners were entrusted with the general control and management of the hospital. They were authorized to appoint a superintendent, matron, and such assistant physicians, stewards and other officers as were necessary to take charge of the patients and hospital, and for the efficient administration of the affairs of the institution. Act approved January 15th, 1852, 1 G. & EL, p. 378.
From the initiatory step in the organization of a hospital, for the insane in 1845, until the adoption of the present Constitution, and from thence until the enactment of the law approved March 6th, 1879, under various statutes, the General Assembly appointed the commissioners or trustees, as they are called interchangeably, of the hospital for the insane of the State. The act last above named conferred the power on the Governor, by and with the consent of the Senate, to appoint trustees, but this last act was repealed in February, 1883, when it was again provided that the trustees should be elected by the General Assembly. By the act of
The constitutional power of the General Assembly having been challenged by the chief executive of the State, the ■duty now rests upon the court to consider the questions involved, with that degree of caution and deliberation which their magnitude and the abiding consequences which depend upon their proper solution imperatively demand. Eepresenting one of the co-ordinate departments of the State government, acting under the solemn sanction of official obligation, and realizing that the duty which ■confronts the court is no less than that of sitting as arbiter to determine a question of power in contention between the General Assembly and the chief executive, representing, respectively, and under equally solemn sanctions, the other great departments of the government under which we live, we are admonished that the gravity of the situation is such as demands our most thoughtful and dispassionate consideration.
At the outset, it is to be remembered, that the authority ■of the Legislature in the enactment of laws is subject to no restrictions, save only those imposed by the Constitution of the State, the Constitution of the United States, and the laws and treaties made in pursuance thereof; that in construing a statute it is to be done with a view to uphold it, if that is fairly possible, and that if it be of doubtful constitution
That feature of our State Constitution, which is conspicuous in the organic law of every State of the Union, as well as in the Constitution of the United States, and which distributes all governmental powers into three departments, is appealed to as a foundation for the argument against the power of the General Assembly to make the appointments in question. Article 3 of the Coustitution divides the powers of government into three separate departments — the legislative, the executive, including the administrative, and the judicial, and it declares that “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.” Taking this general distribution of powers among the different departments as a basis, and relying upon those provisions of the Constitution which vest the executive, legislative and judicial powers, ’ respectively, in the Governor, the Legislature and the courts, the argument by which the invalidity of the law is sought to be maintained, following general definitions of what constitutes executive, legislative and judicial power, is to this effect: The power to make appointments to office is essentially and intrinsically an executive function; legislative power is the power to enact, alter and repeal laws; while j udieial power is the power to construe and interpret the Constitution and laws, and to render judgments and make decrees determining private controversies. Hence, while it is not explicitly asserted, the conclusion to which the argument, if it be well founded, necessarily leads is, that the appointing power is an executive prerogative, which can not be interfered with or exercised by the General Assembly- or any other department of the government in the absence of express authority to that end.
It is universally regarded as one of the chief excellences
That the powers of government are separated into legislative, executive and judicial, and are confided to different departments, and that powers committed to one department can not be exercised by persons performing functions in any other, are, as we have seen, well established features of our system. The boundaries which separate the functions of the different departments are broad, clear and distinct as applied to matters affecting property rights, or private concern, or the execution or enforcement of existing law; but it is not easy, where the Constitution is silent, to discriminate or formulate definitions as to what constitutes legislative, executive or judicial authority, when questions of public policy,
Upon this subject the same eminent authority on constitutional law said: “ The authority that makes the laws has large discretion in determining the means through which they shall be executed. * * * Such powers as are specially conferred by the Constitution upon the Governor, or upon any other specified officer the Legislature can not require or authorize to be performed by any other officer or authority. * * * But other powers or duties the executive can not exercise or assume except by legislative authority.” Cooley Const. Lim. (5th ed.), p. 135.
The same author, speaking of the exercise of the appointing power, as being an executive act, uses this language: “ Where the Constitution contains no negative words to limit the legislative authority in this regard, the Legislature in enacting a law must decide for itself what are the suitable, convenient, or necessary agencies for its execution.” Cooley Const. Lim. (5th ed.), p. 136, note.
Respecting appointments to office, at least so far as the question now before us is concerned, the Constitution, as we shall see, has not left the former to be ascertained by inference or abstract definition.
It has been repeatedly affirmed, and it is doubtless true in a sense, that an appointment to office is in its nature intrinsically an executive act, but it by no means follows that the power of appointment may not be confided to other depart
An examination of the cases in which expressions in relation to the nature of the act of appointment similar to those above are found, will disclose that no court has ever asserted that the right to make appointments to office was inherently and exclusively an executive prerogative, without regard to some express constitutional provision or legal enactment conferring the power; on the contrary, whenever the subject has been considered, with a view to its practical application to cases in hand, it has been held that the executive has no power of appointment to public office, except as it may relate to those who assist in the discharge of his personal executive duties, beyond such as is expressly conferred by the Constitution and the laws enacted in obedience thereto, and that the Constitution and the laws which confer the power measure the extent of executive authority in that respect. Mayor v. State, 15 Md. 376; State v. Swift, 11 Rev. 128; State v. Irwin, 5 Nev. 111; Commonwealth v. Hanley, 9 Pa. St. 513; Collins v. State, ex rel., 8 Ind. 344.
The Constitution and laws furnish the only rule, and are the charter, by which the Governor’s authority in that respect is to be determined. Field v. People, 2 Scam. (Ill.) 79. Accordingly, ini Collins v. State, ex rel., supra, in which an act of the Legislature, creating the office of attorney general, and providing for the election of that officer by joint ballot of the General Assembly, was involved, it appeared that after passing the act the Legislature adjourned without filling the office as therein provided. The office being vacant, the Governor assumed the right to fill it by appointment. It was held, however, that the executive power of appointment was defined and limited by the Constitution and laws, and that, in the absence of any express power to that end, the appointment was void. Other authorities to the
Our first conclusion, therefore, is, that the general power to choose, elect or appoint officers is not inherent in the executive, nor in any other branch of the government, but that it is a prerogative of the people, to be exercised by them, or by those departments of government to which it has been either expressly or by implication confided or reserved in the Constitution, and that neither the people nor those to whom the power has been confided can exercise the power, except in conformity with the Constitution and the laws enacted in pursuance thereof. People v. Hurlbut, 24 Mich. 44; Commonwealth v. Baxter, 35 Pa. St. 263; People v. Mathewson, 47 Cal. 442; 6 Am. & Eng. Encyl. of Law, p. 294.
The Constitution provides specifically the manner in which certain officers are to be chosen; with reference to those not therein provided for, it directs that they shall be chosen as may be prescribed by law. That was the command of the people concerning a right inherent in them.
If the organic law of the State were silent concerning the method of selecting officers whose appointments were not otherwise provided for in the Constitution, it would then be necessary in each case to solve the question by construction, and by considering whether the duty or power in each particular case pertained to the legislative, the executive or the judiciary. But confining ourselves strictly to the case before the court, we assert that the power to appoint agencies for the government of the hospital for the insane is not left to inference, but is expressly conferred upon the General Assembly. As we have already seen, the Constitution in the most explicit terms enjoins upon the General Assembly the
Accepting as correct the proposition that a law enacted in obedience to and in execution of the express command of the Constitution, which is not in palpable violation of some express constitutional provision, is of as high sanction as though it were found in that instrument, the further conclusion follows that the command of the Constitution
Another consideration of a controlling character leads to the same conclusion as that stated above. The General Assembly was charged with the duty already described, and the only constitutional provision outside of what is implied in the section imposing the duty for choosing or appointing agents or officers for the government of the benevolent institutions is the following : “All officers whose appointments are not otherwise provided for in this Constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law.” Section 1, article 15, Constitution.
While it is conceded that the above section authorized the General Assembly to prescribe by law the manner in which the offices here in question should be filled, the contention is that it was not competent nor within legislative discretion to vest the right of appointment in the. General Assembly, but that it was essential to the validity of the law that the appointment of trustees should have been confided to the Governor, or to some other executive or administrative officer or board. This position is not maintained by any authority that is at all applicable. The decision in State v. Kennon, 7 Ohio St. 546, may be conceded to be a correct exposition of the law, in view of the fact that the Constitution which controlled the judgment of the court in that case, in express terms provided that no appointing power should be exercised by the General Assembly, whereby, as was in effect said by the court in that case, the appointing power by that body was “ cut up by the roots.” Similar constitutional pro
Instead of grants of power to the General Assembly, the controlling element in those cases is that the appointing power was conferred upon the executive, and expressly prohibited to the Legislature. It is a reasonable and well established rule, applicable to the interpretation of a constitutional provision, not only to consider the sense in which those who framed it are supposed to have understood the language employed, but to consider whether a similar provision in the preceding Constitution had received judicial or legislative construction at the time of the adoption of the latter. When a constitutional provision has received a settled judicial construction, or a uniform legislative exposition, which has been acquiesced in by the other departments of government and by the people, and is afterwards incorporated into a new or revised Constitution, the presumption will be indulged that it was retained and adopted with knowledge of the exposition which it had previously received. In such a case courts will feel constrained to adhere .to the construction which the provision had theretofore received, and with which it was presumably readopted. Moers v. City of Reading, 21 Pa. St. 188; Ex Parte Roundtree, 51 Ala. 42; Cronise v. Cronise, 54 Pa. St. 255; People v. Wright, 6 Col. 92; Mayor v. State, 15 Md. 376; Davis v. State, 7 Md. 151; Cooley Const. Lim. 73. Applying this rule, what follows? Section 8, article 4, of the Constitution of 1816 declares, after providing for certain appointments to be made by the Governor, that “ all offices which may be created by the General Assembly, shall be filled in such manner as may be directed by law.” As we have already seen, the State benevolent institutions were organized while the Constitution of 1816 was in force. Acting under the authority which it was supposed the above provision supplied, the Genei'al Assembly uniformly, with the acquiescence of the people and of all the other departments of government, appointed com
Trustees of the hospital for the insane are officers for whose appointment no provision was made in the Constitution. They are neither county, township nor municipal officers, who were elective or chosen in any other manner at the time the Constitution was adopted. On the contrary, as we have seen, they were officers who, according to the method existing at the time the Constitution took effect, were appointed by the General Assembly. That was the prescribed method then existing, as well as that uniformly since prescribed by law. This must, therefore, be regarded as conferring express authority and unlimited power upon the General Assembly to use its discretion in providing for, or prescribing the manner of, the appointment of officers such as those here in question. People v. Bennett, 54 Barb. 480; Ohio v. Covington, 29 Ohio St. 102; Walker v. City of Cincinnati, 21 Ohio St. 14; State v. The Judges, 21 Ohio St. 1.
The absolute, unlimited power of prescribing the manner of selecting officers of the class here involved was vested by the people in the General Assembly. If any doubt remained concerning the power of the General Assembly to make the appointments in the manner prescribed bythe law in question,
Whatever fluctuations may have occurred in legislation concerning other interests, it must be said that through all the varying tides of political opinion, the General Assembly, for nearly a half century, has adhered with singular steadfastness to such a construction of the Constitution as gave it the right now questioned. If there were no other ground upon which to rest our decision, this unchallenged legislative exposition would prevent the court from interfering.
That the'' General Assembly may, as was done once before, commit the power to the Governor, can not be doubted. Abiding as our conviction might be concerning the propriety of the Legislature imposing part of the responsibility upon, and sharing the supervision and control of these great institutions with, the chief executive of the State, it would neither be fitting, nor would it avail anything, to express that conviction here. The people have imposed the duty upon
The task set this court is performed when we have, in the light of the principles and authorities referred to, stated our conclusions as to the power of the respective departments under the Constitution and the law, which constitute the only chart for the guidance of the court, as it does for the other departments of government.
It only remains that we notice briefly the objection that the bill providing for the reorganization of the several boards is not authenticated as required by the Constitution. What purports to be “ a full, true and complete copy of enrolled act No. 249, House of Representatives, passed by the General Assembly of the State of Indiana, over the Governor’s veto, as the same appears of record in this office,” is officially certified to us by the secretary of state, under the seal of the State. It appears by the endorsement of the secretary thereon to have been received and filed by him in his office on the 5th day of March, 1889. Looking upon the face of the act, its title and contents appear to be complete and perfect in form, and it bears upon its face the attestation of the speaker of the House of Representatives and of the president of the Senate, as the Constitution requires. It does not have upon it the signature of the Governor. We accept as explanatory of the absence of the attestation of the chief executive, the official statement made by the secretary of state, under the seal of the State, that the act “ was passed by the General Assembly of the State of Indiana over the Governor’s veto.”
If this were not deemed a sufficient explanation, the court might, doubtless, avail itself, for mere purposes of information, of any public records which the law makes provision for in order to preserve a history of legislative events. But we do not deem this of any consequence. No evidence which might be resorted to could override the constitutional authentication which appears upon the face of the enrolled act. The function of the court, in that regard, is completely dis
An act may become a law in several ways without the signature or approval of the Governor, and when, as in this case, an enactment is certified by the legal custodian, properly authenticated and complete in form, judicial investigation is at an end, the conclusive presumption being that the act became a law in some constitutional method without the approval, or notwithstanding the disapproval, of the chief executive.
The judgment of the Marion Circuit Court is affirmed, with costs.
Separate Opinion.
Concurrence Opinion
I concur with the conclusion reached in the opinion of the court delivered by Mitchell, J., that the relator was duly elected one of the trustees for the insane asylum, and should be commissioned as such. But with the reasoning and argument I disagree.
When the present Constitution was adopted the old Constitution was abrogated and all governmental power not granted by the new Constitution rested with the people. The Constitution divides the State government into three departments, the legislative, executive and judicial. I quote a part of section 1, article 3: “ No person charged with ofii
The word “ expressly,” as used in the foregoing article of the Constitution, is defined by Webster as follows : “ In an express, direct or pointed manner; in direct terms; plainly.” The word “ express” is defined : “ Directly stated; not implied or left to inference; distinctly and pointedly given; made unambiguous by special intention; clear, plain.” Legislative power is the power to enact laws and matters incidentally connected therewith. This, I believe, is the accepted definition.
The power to appoint to office is an executive power or function, and is lodged with the executive (which includes the administrative) department of the government, except where the organic law expressly provides otherwise. The Legislature may create offices, but has no power to appoint officers, except such as relate to the exercise of its legislative functions or power, unless the power so to do is conferred expressly by the Constitution, and then it must be exercised within the letter of the constitutional provision. Nothing can be taken by implication.
There is some appointing power given to the Legislature in our Constitution other than that which relates to the exercise of its legislative power. This grant of power will be found in section 1 of article 15, which reads: “All officers whose appointments are not otherwise provided for in this Constitution shall be chosen in such manner as now is, or hereafter may be, provided for by law.” There were certain offices in existence when the present Constitution was adopted that were continued, and no provision is made in the Constitution for the election or appointment of the officers to fill those offices.
The antecedent to which the words “any other State office ” relate, is an office “ the appointment to which is vested in the General Assembly.” Whatever of the offices now in ■existence, which were in existence when the Constitution was adopted, to which the Legislature appointed the incumbents, section 1, article 15, supra, continued the appointing power in the Legislature, and so with the other governmental departments, except so far as has otherwise been provided by law. The Legislature may provide by law for the appointment of all officers not provided for in the Constitution, but the appointing power must be lodged somewhere within the executive department of the government.
The only offices now in existence that existed when the Constitution was adopted, to which the General Assembly exercised the power of appointing the incumbents, are, so far as I have been able to ascertain, the State librarian, warden of the State’s prison at Jeffersonville — State prison south — and the trustees of the insane asylum. There may be others ; if so, I have overlooked them. E. S. 1843, p.
The trustees of the blind asylum and of the deaf and dumb asylum were appointed by the Governor. Acts of 1845, p. 56; Acts of 1846, p. 19; Acts of 1847, p. 41.
Practical construction is of very little consequence where it is exercised in violation of the plain provisions of the Constitution.
There is one other question — the authentication of the law by virtue of which the relator claims to be a trustee of the insane asylum. My opinion is, that when a bill passes both houses of the General Assembly by the requisite constitutional majority, is properly signed by the presiding officers, is transmitted to the Governor, and he refuses to sign it, but returns the same with objections to the house where it originated, and the objections are entered at large on its journals, and the bill again passes that house by the requisite constitutional majority, and is transmitted to the other house, together with the Governor’s objections, and passes that house by a constitutional majority, it then becomes a law. The Constitution so provides. My opinion is, that in case of a returned bill the journals are proper evidence of its final passage and validity as a law, if not conclusive evidence thereof.
Separate Opinion.
Concurrence Opinion
While concurring in the opinion in this case I am unable to agree with my brother Mitchell in the process of reasoning by which the conclusion is reached. I do not believe that the duty conferred on the General As^ sembly by the Constitution, to provide for the benevolent institutions of the State, carries with it the power to appoint officers to manage such institutions. Certainly no such power is expressed, and if it exists it must be by implication.
An appointment by the Legislature to an office not con
In my opinion, section 1, article 15, when construed in connection with the law in force at the time of its adoption, does confer on the Legislature the power to appoint the appellee to the office he is now claiming. By the terms of that section the Legislature has the power to appoint such officers as it had the right to appoint under the law in force at the time of the adoption of the Constitution, unless a different mode of selection was provided for by the Constitution itself. It is upon this ground, and the practical construction heretofore given it, alone, that I am enabled to concur in the opinion in this case. I do not believe that the framers of the Constitution intended to confer on the General Assembly any general appointing power.
Separate Opinion.
Concurrence Opinion
I concur in the conclusion reached by Mitchell, J., as to the right of the General Assembly to appoint the particular officer in question in this ease, but I do not concur in all of the reasoning by which such conclusion is reached.