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

sider the constitutional provision and the section
OF the statute to which they refer.
Section 10, Article 5, Of the Constitution, here
tofore copied, provides that the Lieutenant-gov
ernor shall act as Governor in certain specified
cases, and says the General Assembly shall :
vide by law for the case of removal from o.
death, resignation or inability both of the {
ernor and Lieutenant-governor, declaring WI
officer shall then act as Governor. This clause
refers to the time when both the Governor and
Lieutenant-governor shall fail to act. a condition
which does not exist at present, and may never
exist in this State. 1t is further provided that
the officer designated by the General Assembly
shall act only until the disability be removed or
a Governor elected. By an act of the General
Assembly. approved March il, 1867, it is pro-
vided Section $3.50, Revised Statutes, 1881:
In case by the removal from Office, death, ~resigna.
ton or inability of both Governor and Lieutenant.
the President of the Senate shall act as Governor until
the vacancy be filed. and if there be no President of
the Senate the Secretary of State shall convene the
Senate for the purpose of electing a president thereof.
This law follows the language of the Constitu-
ton, and has no effect until there shall be q vacan-
cy In both offices, Governor and Lieutenant-goy-
ernor. 1t is very evident, too, that the law
makers had in mind q permanent President Of
the Senate-one selected after the Lieutenant
governor had vacated his Office in some manner,
and not one selected to serve temporarily. The
law was enacted at the session when Oliver 2.
Morton had been elected to the United States
O01NNSt 1880 ~0N S1S OGA(0 IA 40N
TO which he had been elected in 1864 for a term
of four years. beginning on the second Monday
of January, 1865. and ending the same day in
1863. Conrad Baker, who had been elected at
the same time as Lieutenant-governor, was then
March III, 1867-acting as Governor, and the
law then passed was intended to provide for the
succession in the event of his death or resigna-
ton. The Senate had at that time q President
who had been elected on account of the fact that
the OBSERVATION-DISCLOSURES was acting Governor.
His n0eitinn WAS G Marin n ont nna and his faPm
OF office would continue as long as the Lieuten-
ant-governor should act as Governor, and, there
fore, for the remainder of the term, this being
prior to the act of 1881.
statute is in violation of that part of
Section L. Article 3 Of the Constitution,
with official duties under one department shall
exercise any of the functions of another, except
as in the Constitution expressly provided"
Section 10, Article 6, gives authority to the
General Assembly to provide by law what
officer shall act as Governor in case Of the resig-
nation, etc., of both Governor and Lieutenant
governor, but this clearly ought to be construed
III connection with Section /, Article 8, and,
therefore, as not intending to expressly empower
the General Assembly to designate an officer who
was by the same instrument expressly forbidden
to act or expressly declared to be ineligible. The
proper construction of the two sections clearly
is that the General Assembly shall provide by law
what officer of tho executive or administrative
department of the State should act as Governor.
Speaking for myself, as one of the members of
the General Assembly of 1867, / car say thas
the question of the constitutionality of the law
was not raised, and, therefore, not fully consid-
cred. The journals of the two houses show that
no debate whatever occurred upon the passage
of the bill, and it's history is written in half q
dozen lines. At the time of it's passage Hon.
Will Cumback was President of the Senate. On
the Oath of January, 1867, Governor Morton
sent to the General Assembly a formal r~esigna-
ton, because of having been elected United States
Senator. Lieatenant-governor Baker formally
surrendered the chair as President of the Senate
to assume the duties of Governor, and the SEN
ate proceeded to elect Mr.. Cumback as Presi-
dent, Hon. John r. Cravens. the Senator from
Jefferson. acting as President pro tenn. during
the election. SENATE Journal. 1857, PIP. 152, 15S,
154 The law of March II. 1867. was enacted
because the members Of that General Assembly
desired that Mr.. Cumback should succeed to the
Office of Governor in case of a vacancy. rather
than the Secretary of State, as provided by act
of March 5, 1859. Even if it must be held that
the Legislature had power to designate a person
holding an office in another branch of the gov
srnment to act as Governor, it could only do so
when both Offices were vacant, and further, it
could only do so until the vacancy be filled"
This contemplates an election or appointment
to fill q vacancy-to serve the remainder of the
term, and not the election of one to fill the sue
ceeding term. How must the vacancy be filed!
Unless Section 4678, Revised Statutes, 1881. is in
violation of the Constitution so far as it relates
to Governor and Lieutenaut-governor, it author
lied the vacancy to be filed by the people at the
election.
Did the people of the State, by adopting the
Constitution, deny themselves the right to
choose their Governor and acknowledgements
at a regular election If a vacancy exlstea9 If
they did not. then the Legislature had ample
power to authorize the election, for the legisla-
tive power is limited only by the Constitution.
There Is nothing in the Constitution which can
be construed as prohibiting the Legislature from
enacting the law, and it becomes the duty of
every good citizen to acqulesce in the selection
made by the people. The question should be 70.
garded as adjudicated. and the election of q
acknowledgements conclusive.
We are referred to cases where q Governor
resigned his Office during the first part of his
term, and q Acknowledgements succeeded for
a full term-notably the case of Henry S. Lane
and Oliver P. Morton from 1861 to 1865, but
these are not in point, for the reasons stated by
the Att~orney-general. The Lieutenant-gevern-
ors Office was net vacated. 1t was the Governor
who resigned, and the OBSERVATION-DISCLOSURES was
expressly authorized to actas Governor, although
still holding the Office of ACKNOWLEDGEMENTS.
He acted In one Office, but held title to the other.
The case of the succession of Vice-president of
the United States to the presidency for an unex-
PRED term is net in point, for the same reason,
and for the further reason that we have
no presidential election except once in four
years. When the next Senate convenes, it is
presumed that General Manson will send to that
body a communication announcing his retire
ment from the Office of ACKNOWLEDGEMENTS in
July. 1886, by accepting a federal Office, when it
will be in order to elect a President pro tenn.
The Senate will contain twenty-six members
elected at the last November election major
itv of the whole body-and it is absurd to sun
pose it will be bound by an election held at the
last session, wherein only twenty-four members of
the present body were in Office. and only four
teen of that number voted for the person who
now assumes to hold the place. No one sup
poses for a moment that if a President pro tenn.
bad been elected at the last session, by either DO
litical party, and the opposite party had a MAORI
tyin the present body, a new man would not be
selected the first hour of the session. But the peo-
pie are in no humor to look at this question from
a mere partisan standpoint. One of the claim.
ants is a pretender, and If the man not entitled
to the place secures it by fraud. or by revolu-
tionary proceedings, he will be a usurper. q
character odious all over the world, and no.
where more so thar in the United States, where