The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-30

the office OF Lieutena On the one
hand, then. we have q claimant to the Office who
was chosen by the people at a regular election,
where ell parties and all the voters of the State
had due and timely notice, where all parties
agreed that an election by the people was neces-
sary and proper-where all had an opportunity
to express their choice, and substantially all of
the legal voters did express their choice. This
is q government of the people, by the people and
for the people, and it is the policy of our gov
eminent and laws to give effect to the expressed
will OF the people whenever the same can be
done, If that will has been expressed within the
limits of legislative and constitutional r~estric-
tion.
1t is conceded that if any other person held
the Office of Lieutenant-goyernor at the time of
the election in November, 1886-that if no va
cancy then existed which could or might have
been filed by election, such election could con-
fer no title upon Mr. Robertson, but it is certain
that one claiming a title thereto which is para
mount to that given by an election by the peo-
pie should show a title that is clear beyond dis
pute-not even debatable. 1t must be, or it
ought to be, by EXPRESS authority of
and not merely by implication-or
the title conferred by the people must prevail.
The other claimant to the Office is Alonzo G.
| Smith. Mr.. Smith was elected to the Senate of
the State In November, 1884, for a term OF four
years. from a district composed of the counties
of Jennings and jackson. and has never resigned
that Office. The Constitution says the Senate
shall not exceed fifty members, and Section 1856
u h0VtSe0 OCaLub6S, 1901, Is AS IOllOWS: Inc
General Assembly shall consist of fifty Senators
and one hundred Representatives" MIR. Smith
is now a State Senator, else we have but forty
nine Senators in the General Assembly. If he
is a Senator, he is not and cannot be Lieutenant
| governor. because of the constitutional prohibi-
tion against one person holding more than one
lucrative Office at the same time. Can he, there
fore. by virtue of his Office as Senator, hold or
be placed in any position wherein he may exer-
else the duties of Lieutenant-goyernor to the ex-
/ ClusiOn of Any other DersOnY
The contention is that he was elected as Pres
ident pro Jempore of the Senate, and was hold
ing that Office at the time General Manson
abandoned the Office of Lieutenant-gov-
| ernor, wherefore he Immediately succeeded to
the office of Lieutenant-governor, and is entitled
to hold it for the remainder Of the term, which
will expire by constitutional limitation on the
second Monday in January, 1889. In order to
determine whether or not Mr.. Smith holds any
title to the Office, or any right to discharge the
duties thereof as acting ACKNOWLEDGEMENTS,
we must again look to the Constitution and laws
enacted pursuant thereto. The State Senate
has, as every deiiberative assembly must have.
an inherent right to select a presiding officer
whenever lawfully met together, and there shall
be no legally constituted presiding officer pres
ent; but it will not be contended by any person
that one so selected could exercise the functions
Of the Office beyond the meeting at which he
was chosen, nor even so long. if the proper pre-
siding officer appeared during the meeting and
demanded the chair. An election which invests
lit OCSupdub WITH HlOE6 budu ISulpOTnTy du-
thority-which gives title or tenure of office
must be by virtue of some constitutional, or at
least statutory provisions.
The Senate journal, page OIL, of the special
session, April 13, 1885. shows that the Senate
met in special session, ACKNOWLEDGEMENTS
Manson in the chair. After two resolutions were
offered and adopted, the journal shows that,
while governor Manson occupied the
chair, Senator Weir placed In nomination
Senator Smith, of Jennings, as President pro
fnm nf fhn Sanata Tho roll wac Nol1oA on6
resulted in a majority of the Senators voting for
Senator Smith, whereupon the journal shows
(page 972l:
Senator Smith, having receiyeda majority, of all the
votes cast, was declared by the chair duly elected
president pro tempore of the Senate.
ACKNOWLEDGEMENTS Manson was then occu-
plying the chair and declared the result. If this
election was without authority, either express
or implied. 1t conferred no power upon Mr..
Smith, of any kind or for any purpose. 1t did
not empower him to exercise authority over the
Senate. either then or at any OTTER time. and for
stronger reason it did not put him In a position
to succeed to some other Office. 1t was the in
formal expression OF twenty eight men that Sen
ator Smith was or would be their choice for
President pro tampore In the event that one
should be chosen, and these twenty-eight men
were acting for themselves alone in that respect,
unless there be some warrant in the law for
thsir action, and some power delegated to them
to select for the people of the State. Is there
any authority of law for their action? 1t is con-
tended that the Senate was following precedent
begun in that body at the first session
held under the new Constitution. and continued
regularly every session since then. But
IL the first election so held was un-
authorized. the fact that the practice
was continued gave neither the first nor any
other one legal sanction, especially when the
question OF its legality was never raised until
now. PRESIDENTS are valuable, aud. az a rule,
should be followed when action has been taken
or decisions made by a proper tribunal in cases
| where the same Qu0Stl0n has h0Qn TAia9d and
decided, not otherwise.
AS we have suggested, If a President pro tenn
pore of the Senate should be selected at q time
when no presiding officer was present, by virtue
of the power inherent in a legislative body, and
as a necessary incident to its organization and
existence, the power vested in such officer
would be for the time only, and both his Office
and authority would cease with the first ad-
journment. But. as it is not commended that the
selection In this case was IN snch an emergency,
or for such temporary purpose. it is not neces-
sary to consider this point further, and we must
look for the written law authorizing the election.
Section Ii Of Article 5 of the Constitution is as
follows:
Governor, or shall be unable to attend as President of
the Senate, the Senate shall elect one of its own mem
bers as President for the occasion.
Constitutions must be strictly construed. This
rule is without exception. We see that under
the section above there are two cases in which
the Senate is authorized to select q President
pro tenn; the first when the ACKNOWLEDGEMENTS
shall act as Governor, and the second when he
shall be unable to attend. Neither of these con-
ditions existed on the 18th day of April. 1886, at
the time when, it is claimed, Senator Smith was
elected. The Lieutenant-governor was not act
ing as Governor, and he was not unable to at
tend, for he was. in fact, in attendance, was in
the presiding officers chair, and was in the dis
charge of his duties. The election. therefore,
was without constitutional authority or sanction,
and being so, the choice made by the twenty
eight Senators had no more legal or binding
force than if it had been a choice made by any
other twenty eight men at any other time or
place-not more than if twenty-eight citizens had
expressed a preference on the public streets or
in a private room. This being the case, it is
hardly necessary to consider the section further;
yet it is we'll TO observe that the tenure of the
occupant is limited to the ssoccasion - which ha.