The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-09

| r. S. 1881, Sec. 1867 This clause Of The Consttu
ton is to be considered in connection with Section
/ of Article 5 of the Constitution which provides:
Whenever the Lieutenant governor shall act Gov
shall be unable to attend President of the
Senate, the Senate shall elect of its members
as President for the occasion" Or. S. 1881. Sec
1879 This clause presupposes that there is Lieu
tenantgovernor. Under this provision of the Consti
tuition the Senate may elect temporary presiding
| officer when the acknowledgements shall act
Governor he shall be unable to attend President
| of the Senate There two contingencies named
| In this section, and upon the happening
OF either president for the occasion may be
elected and not otherwise. Had either of these
tngencies arisen when it is alleged the Senate chose
the plaintinff President of che Senate? We know
from public history that the then governor
| Manson was not acting as Governor. and we know
from the Senate journal of 1885, PIP. 971-10O4, in
elusive chat he presided the Senate during the
whole of that day; made lengthy report. and signed
| the record of the days proceedings. which includes
the adjournment sine die. 1t thus appears that the
and that he was not unable to attend President OF
the Senate. Therefore it follows that the plaintiff
not lawfully elected President of the Senate
z. Even if lawfully elected, it only 'for the
OCCASION. Such is the language of the Constitution,
and it is an express limitation upon his term OF
service.
the Office of Lieutenant governor when General Man
took the office of collector of internal revenue of
the United States, and claims that the plaintiff, by
virtue of his alleged election President of the SEN
ate becomes entitled to discharge the duties of Lieu
tenantgovernor.
Section 10 of Article of the Constitution pro-
vldes I'm case of the removal of the Governor from
Office of his DEATH resignation inability to dis
charge the duties of the Office the shall devolve
on the ACKNOWLEDGEMENTS and the General Assem-
bly, shall by law provide for the of removal from
office death, resignation inability both of the Gov
ernor and Lieutenant governor, declaring what officer
shall then Governor and such officer shall act
accordingly until the disability be removed or Gov
ernor be elected
In pursuance of said clause of the Constitution the
General Assembly of 1867 enacted the following
statute: In of the removal from Office death,
resignation, inability of both Governor and Lieu
tenant-governor, vacancy occurs in the Office of
Governor the President of the Senate shall act
Governor until the vacancy be filed, and if there be
no President OF the Senate. the Secretary of State
shall the Senate for the purpose of electing
President thereof" (R. s. 1881, Sec. $500
The defendant contends
l. This provision of the statute is operative only
when there is vacancy in the offices of both Gov
ernor and and in such event the
President of the Senate shall become acting Governor
until the vacancy be filled. 1t is not averred that
there at the time of the alleged election of the
plaintiff or now, any vacancy in the Office of Gov
ernor. 1t follows, therefore, that such condition
of affairs has arisen as will enable the plaintiff to act
| as Governor.
g. The Constitution and the ststute do not provide
that the President of the Senate shall time act
| as Lieutenant governor.
| 3. The Constitution confers on the General Assem-
bly, the power to enact what officer shall act as Gov
ernor in the event of vacancy in that office. We
contend that the President of the Senate pro tempore
is not officer within the purview of the Const
|
GERS. and defines their terms of office. methods of
election and powers and duties The President pro
tempore of the Senate is chosen rom that body. He
is not elected by the people of the entire State
the Governor and State officers but is elected by the
people of a very small portonsof the State If the
people of the State had intended that member of the
| General Assembly that any inferior o hcer
| should be eligible to such high office
they would have said in plain words
This view is confirmed and strengthened by the Ian
guage of Article of our Constitution. The section
reads as follows THE powers of the government are
divided into three separate departments the legisla
tive the executive including the administrative and
the judicial; and person charged with official duties
under of these departments shall exercise any of
ton expressly provided" The plaintiff, as member
of the Senate belongs to the legislative department
See Article 4. The Governor and IIeutenant-gov-
belong to the executive depar ment See Article
B. AS It'll not in this Constitution" expressly pro-
yided that the President pro tempore of the
ss NAV mem t@e s of ss' Ssn
ernor Or Leutenant-governor, the language of
Article III operates as positive, prohibition and
to confer tho President of the Senate the right
assume executive powers Is unconstitutional and void
1t will be noticed that the State officers generally
| cassed in the administrative department (See
Article VL) And in Article LII the executive depart
ment is declared to include the administrative depart
ment 1t thus appears that the people at every cleo
| ton elect one more State officers who might be
made by statute eligible to the executive offices in
case of vacancy. The Constitution makes ample
provision for filing vacancy in State Office, for it
declares, when during of the General Assem-
bly, vacancy shall happen in any office, the appoint
ment to which is vested in the General Assembly
when at any time vacancy shall have occurred in
any other State Office, in the office of judge of any
court the Governor shall fill such vacancy by appoint
ment, which shall expire when successor shall
have been elected and qualified (R. s. 1881,
| Sec. 144) 1t is the policy of the law that
| when the regular order is broken by vacancy
the Office in which it shall not remain
untitled longer than necessary, but such Office far
as possible, should be bestowed upon the incumbent
by the voters, and Office shouldbe filed by appoint
ment only until the voters themselves fill it
regular election. (The State rel. Ault Long 81
| Ind, 351, 500; Parmater State, 1O2 Ind, co.
Having this policy in view the people and the General
quent elections and the filling of vacancies thereat
The Constitution provides: "All general elections
shall be held the first Tuesday after the first Mon
day in November but township elections may be held
at such time may be provided by law" Revised
Statutes 1881, Section 95l The statute provides:
"A general election shall Go held Oh The first Tuesday
after the first Monday in November in the year 1882
and biennially thereafter the day, at which
election all existing vacancies in Office and all Offices
the terms of which will expire before the next general
election thereafter shall be filled unless otherwise
provided by law" Rovised Statutes 1881, Section
4678)
| There being vacancy in the Office of Lieutenant
governor, it was obligatory upon the people to fill it
at the November election in 1886. The person elect
ed at that time will hold Office until the second Mon
day in January, 1889 for the Constitution expressly
provides that the official term of the Governor and
| ACKNOWLEDGEMENTS shall commence on the second
Monday in January. in the year 1858, and the
same day every fourth year thereafter" r. S.. 1881;
Sec. 1876. This clause imposes limitation upon the
duration of the office held by the person elected to fill
the vacancy, and the person elected in 1886 will hold
for the unexpired term of his predecessor whose
cancy he was elected to ell. Parmenter VS.. State
| lO2 Ind, 9O.)
THE LEGISLATIVE CONTESTS.
a oh Rntx Txuo