121 Ind. 514 | Ind. | 1890
— The information in this cause charges that the relators, Edward E. Law, Alexander H. Foster and Adolph Goeke, constitute the board of metropolitan police of the city of Evansville; that each of said relators was duly appointed a commissioner of police of said city by the Governor, secretary of state, auditor of state and treasurer of state, of the State of Indiana, pursuant to the provisions of the act providing for a metropolitan police in all cities of twenty-nine thousand or more inhabitants, etc., the same being chapter 74 of the acts of the .Legislature of the State of Indiana for the year 1883, viz.: Said Edward E. Law was so appointed such commissioner on the 1st day of Jan
The court sustained a demurrer to this information, and the appellant excepted. Judgment for appellees for costs.
The assignment of error calls in question the correctness of the ruling of the Vanderburgh Superior Court in sustaining the demurrer to the above information.
An act of the Legislature passed on the 5th day of March, 1883, section 705, Elliott’s Supp., creates a board of metropolitan police in all cities in this State having a population of twenty-nine thousand or more inhabitants as shown by the United States census of 1880. The act provides that such board shall be appointed by the Governor, secretary, auditor and treasurer of the State. This act also defines and specifically sets forth the duties of such board of metropolitan police.
By an act of the Legislature passed on the 7th day of March, 1889, the Legislature attempted to abolish the board of metropolitan police created by the act of March 5th, 1883, and to create a board of metropolitan police and fire
The act provides that all laws and parts of laws coming in conflict with it, and especially the act providing for a metropolitan police in cities of twenty-nine thousand inhabitants, are by this act repealed. Elliott’s Supp., section 721.
In the case of City of Evansville v. State, ex rel., 118 Ind. 426, and the case of State, ex rel., v. Denny, 118 Ind, 449, the act of March 7, 1889, was held to be in conflict with the Constitution of the State, and, therefore, void.
It is contended by the appellees in this case that, although the body of the act referred to is void, still the repealing clause is valid, and that it repeals the act of March 5,1883, and leaves the control of the police power of the cities therein named to the common council of such cities. It is earnestly maintained by the appellants, on the other hand, that when the act to which the repealing clause is attached fell, the repealing clause fell with it; and that, as a consequence, the act of March 5, 1883, still remains in force.
In the case of Meshmeier v. State, 11 Ind. 482, it was held that a repealing clause attached tq an unconstitutional act of the Legislature might repeal a former valid statute upon the same subject. The general principle announced in that case is undoubtedly correct, for it must be conceded that the Legislature may use such language in the repealing clause attached to an unconstitutional law as to leave no doubt as to its intention to repeal a former law, in any event. In such case the law intended to be repealed would cease to exist even though the law to which the repealing clause was attached should fail by reason of being in conflict with the Constitution.
Where, however, it is not clear that the Legislature, by a repealing clause attached to an unconstitutional act, intended to repeal the former statute upon the same subject,
In the case of Meshmeier v. State, supra, the learned judge who wrote the opinion admits that the authorities are against the conclusion there reached, but says that he is unable to 'bring his mind to agree with the authorities upon the subject then under consideration.
It is believed that the conclusion reached in that case has never been followed either by this or any other court in the Union.
Mr. Bishop, in commenting on this case in his valuable work “On the Written Laws,” section 34, says : “But not only the reason just süggested shows that this doctrine can not be sound in principle; it is also unsound, and it has been so adjudged, because, as observed in the Alabama court, if the new law is void, the provisions of the former law can not with propriety be said to be in conflict, or contravention of it.”
The Supreme Court of Iowa, in considering this case in the ease of Childs v. Shower, supra, said: “ In that case, the repealing clause in an unconstitutional statute was ‘ that all acts and parts of acts inconsistent with the provisions of this act, are hereby repealed,’ and the court held (Hanna, J., dissenting) that the prior law was repealed. The reasoning of the majority seems to be refined and technical. They admit that an unconstitutional law can not repeal a prior law by implication. But here they say is ‘ an express repeal.’ This, as it seems to us, is where the error lies. There was no pos
As a consequence of this reasoning the Iowa court refused to follow the case of Meshmeier v. State, supra. Indeed, it is in conflict with all the authorities above cited, and we know of no case to be found which in the remotest degree is supposed to give it any support.
It is contended, however, by the appellee, that it is manifest from the language used that the Legislature intended to repeal the act of 1883 in any event. But we are unable to agree with counsel in this construction. We mtist accord to the Legislature the belief that the act of 1889 was constitutional, and the intention that the provisions of that act would take the place of the act of 1883. The manner of selecting police officers under the act of 1889 is not materially different from the mode prescribed by the act 1883. The mode of selecting police commissioners was changed, but the intention of the Legislature to keep up the old system of selecting police officers is perfectly plain.
We can not say that the Legislature would have passed the repealing clause in question had it not intended that the act of 1889 should take the place of the act which it attempts to repeal. Under such circumstances, according to all the authorities except Meshmeier v. State, supra, the repealing clause must fall with the act to which it is attached.
We are of the opinion that the repealing clause in question is void, and that it does not repeal the act of March 5th, 1883.
In so far as the case of Meshmeier v. State, supra, is in conflict with this opinion the same is hereby modified.
It is not seriously contended that the act of March 5th, 1883, is unconstitutional; indeed, there would seem to be no room for such a contention. It was recognized as a valid act in the case of City of Indianapolis v. Huegele, 115 Ind. 581.
It has been so often decided that the State has the right to prescribe the manner of selecting the constabulary, including
This right is fully recognized in the case of City of Evansville v. State, ex rel., supra, and State, ex rel., v. Denny, supra.
The act of 1883, now under consideration, is easily distinguished from the act of 1889, where the State undertook to control the selection of officers in no wise connected with the constabulary and whose duties were of a local character, affecting local interests and local government. But while it is admitted that the law we are now considering is within the power of the Legislature, and that it is not, in its general scope, in conflict with any provision of the State Constitution, it is earnestly insisted that certain provisions therein are unconstitutional, and that such provisions are so interwoven with the other provisions of the law as that the whole must fall.
It is quite well settled that where a part of a statute is unconstitutional, if such part is so connected with the other parts as that they mutually depend upon each other as conditions, considerations or compensations for each other, so as to warrant the belief that the Legislature intended them as a whole, and if they could not be carried into effect the Legislature would not have passed the residue independently of that which is void, then the whole act must fall. Cooley Const. Lim. (5th ed.) 213; Meshmeier v. State, supra; State, ex rel., v. Denny, supra; Griffin v. State, ex rel., 119 Ind. 520. On the other hand, it is equally well settled that when a part of a statute is unconstitutional, if by striking from the act all that part which is void, that which is left is complete in itself, sensible, capable of being executed and wholly independent of that which is rejected, the courts will reject that which is
The question in this case is, therefore, whether we can eliminate from the act of March, 1883, that which is in conflict with the Constitution of the State and enforce the remainder of the law ; or, in other words, are the unconstitutional provisions in that act so connected with its other provisions as that they must all stand or fall together?
Under section 1 of the act under consideration, a person to be eligible to the office of police commissioner must be a resident of the city for which he is appointed for a period of at least three years next before his appointment.
Section 2 provides that the metropolitan police board shall have power to appoint a superintendent of police, captains, sergeants, detectives and such other officers and patrolmen as they may deem advisable, said captains, sergeants, detectives and such other officers and patrolmen to be appointed equally between the two leading political parties of said city.
In the case of Evansville v. State, ex rel., and State, ex rel., v. Denny, supra, it was held that provisions similar to those found in this act were in conflict with our State Constitution. It was not so held because the Legislature had not the power to provide that such officers as police force should be made non-partisan, but it was so held because the act of 1889 was so drawn as to disfranchise all persons who did not belong to one or the other of the two leading political parties. There can be but little doubt as to the power of the Legislature to make the constabulary of the State non-partisan, but in doing so it must not disfranchise any considerable body of the electors, as all are, under our form of government, eligible to the elective offices within the gift of the people. That it was the intention of the Legislature by the act of March 5th, 1883, to remove the selection of the
Striking out the objectionable features of this law, the remainder is capable of being enforced in such a manner as to fully carry out the object sought to be attained. By the first section of the act, the commissioners are required to take an oath to the effect that they will not appoint or remove any person on account of his political opinions. If such oath is observed the police power of the cities, covered by the act, will conform to police power sought to be created by the Legislature.
In our opinion the act of March, 1883, except in so far as herein indicated, is in force and governs the manner of selecting and controling the police power of the cities therein named. It follows that the superior court of Vanderburgh county erred in sustaining the demurrer to the information in this cause.
Judgment reversed, with instructions to overrule the demurrer to the information, and for further proceedings not inconsistent with this opinion.