The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1888-02-29
DIR HARRISON UPHELD
rhs Supreme Court Holds that the Governors
Appointment Was Illegal
A Decision Giving all the Present Trus.
tees of the Benevolent Institutions
Undisputed Possession OF
Their Offices.

The Governor and the Supreme Court
are not of one accord with regard to the
tenure OF Office of the Trustees OF the be-
nevolent institutions OF Indiana. and as the
Court is the highest authority, the present
officers OF the Hospital for the Insane,
Asylum for the Blind, Institution for the
Deaf and Dumb and others, will hold IN
disputed possession OF their positions until
the NEE ing OF the next General Assembly,
unless removed for cause by process of
law. The test case was made by Mr.. ]. L.
Carson, OF Shelby County, who, shortly
after the session Of the Assembly of 1887,
was appointed President of the Board OF
Trustees OF the Benevolent Institutions
by Governor Gray, to succeed DR.. 7. 81.
Harrison, OF Boone Comfy, the present
incumbent. DR.. Harrison refused to sur.
render the Office on the ground that the
appointment was illegal, and Mr., Carson
thereupon instituted proceedings to Gust
MN from the Trusteeship. 1t was a
friendly suit, and was filed in the Boone
Circuit Court, DR.. Harrison being q resi-
dent of that county. Judge Ter
hume, a few months ago, passed upon
the case, holding that under the law DR..
Harrison should continue to act as trustee
until his successor was duly elected by the
next General Assembly. Mr.. Carson ap-
pesled the case to the Supreme Court, and
yesterday Judge Mitchell, with the concur
renee OF the full bench, affirmed the de-
cls1on of the lower court. The result af-
fects all of the appointees OF the Governor
alike, so far as the benevolent institutions
are concerned. 1t was not surprise to
lawyers who had looked into the merits OF
the case.
The facts briefly are that on February
81, 1888, the Legislature passed an act
vesting the management of the benevolent
institutions In three several boards OF
trustees. and provided for the election of
one President for the three boards. The
act provided that upon the taking effect
thereof, the General Assembly should
elect President, and If q vacancy occurred
when the Legislature was not "A session,
such vacancy should be filled b. appoint
ment by the Governor, the appointment to
hold good until the following session. The
respondent in this case was elected Presi.
dent in 1886. The Legislature failed to
elect successor in 1887, as the law re-
quired, and the respondent continued and
still continues in the Office, asserting the
right to hold over until successor shall
have been duly elected by q succeeding
was vacancy In the Office, the Governor,
in 1897, appointed the reIator as the Presi-
dent Of the Board. and being refusd adj
mittance to the office by the respondent, he
brought this suit.
1.-THE controlling question is" the
Court says, whether or not the Office be-
came vacant at the expiration of four
years from the date of this respondents
election, four years being the term pre-
scribed by the act under which
the Office was created. The power
of the Governor to make valid appoint
ment does not arise until there is vacancy
in fact. The authority to fill vacancies
confers on the Governor no judicial power.
THE existing title Of one to an Office is
matter of judicial concern. The effect of
an executive appointment is dependent
upon whether or not the Office was without
an incumbent lawfully entitled to con-
| tinue therein at the time the appointment
| was made. An Office is not vacant so long
as it is supplied in the manner provided
| by the constitution or laws with legally
| qualified incumbent.
Section 3, Article Is Constitution pro-
| vides that when an officer is to hold for q
| given term the same shall be construed to
mean that he shall hold for such term and
| until bis succt ssor shall have been elected
and qualified, The relator contends that
this provision applies solely to such officers
as are elected by the electoral body at
large and not to officers elected by the
/ LEGISLATURE"
| The Court discusses at length the mean
ing of the words elected" and appoint
ed, their etymology and the use made of
them in the constitution. 1t concludes
that the constitutional provision applies to
officers elected by the General Assembly as
we'll as those elected by the people. Al
though the constitution prohibits the crea-
tion Of a term of Office fo- more than four
years, yet under the constitutional provis-
| ion above set out the incumbent is entitled
to hold after the expiration of the term
fixed and until a successor is elected and
| qualified. 1.-THE trainers of the constitu-
ton intended" the Court says, ITO prevent
vacancies in such offices. Under the terms
of the constitution the respondent was &C.
cupying the office de facto de jure at the
time the relator was appointed, and by
thus occupying there was no vacancy and
no power in the Governor to appoint"
A STATEMENT FROM GOVERNOR GRAY.
Governor Gray was asked by SENTINEL
reporter last night for an expression as to
the decision of the Supreme Court. He
said that there was nothing further fol-
him to do in the case, and that with the
decision his responsibility in the matter
ended. In further conversation about the
case, however, he said:
THE terms OF Messrs. Harrison and
Gspen expired on the 9th of last Febru
airy. OF course, that created vacancies fol-
the Legislature to fill, and the Legislature
failing to fill the vacancies, l thought the
true legal Interpretation was that the va
vacancies continued to occur every
day during the session OF the
Legislature and every day thereafter; and
that the Offices being statutory and no
constitutional, the constitutional provision
in regard to holing over did not apply, fo
the reason that the constitution prohibit
the Legislature from creating any ofic'
the tenure of which shall exceed fou
years. That was my opinion. l made th'
appointments for no other reason than be
cause believed it to be my duty to maxi
them"