The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-29
THERE WAS NO VACANCY
The Supreme Court Renders a Decis-
ion in Favor of DR.. Harrison,
And Holds that Governor Gray Had No Power
to Appoint New Insane Hospital Trustees
Suits TO Gust Them Are Filed.
AGAINST THE GoyERSoR.


Harrison and Gapen
Inc supreme Court yesterday handel down
its opinion IN the Carson-H arrfscn case affirm
ing the decision of the Boone Circuit Court and
sustaining DIR. Harrison in his contest The
opinion is that there has been NO vacancy in
the presidency OF the board of trustees of the
benevolent Institutions, and that Harrison re-
mains IN possession as an officer; ode faeto aud
de 5ure.' 1t reeites the law regarding the man
ner of choosing officers Of the benevolent insti-
tutions, providing that the president OF III.
board OF trustees shall be elected by tho Ioeis-
lature every four years, and that in case
OK vacancy when the Legislature
was not in session the Governor would be- am
powered to fill the appointment, the appointes
to serve until the session of the following Cen
erai Assembly; also. the fact that Harrison was
hrst elected in 1880. and that the Legislature Of
last year failed to re-elect him or a successor To
BIN. and that the Governor then acting unon
the suopositon that there was a vacancy an
pointed joseph l.. Carson as Harrson's sue
cessor Harrison. of course, maintained that
there was no vacancy, and that the Governor
was not, therefore, empowered appoint q sue
cessor Another point made ~ the ATTORNEYS
OF DIT. Harrison was that, even Il there was q
vacancy, IL did rot occur during the recess of
the General Assembly, but while the General
Assembly was IN session, and therefore by the
terms OF the Constitution the Governor had no
power TO ap,,oine
The cosrt considered the controlipg question
TO Do wbsshcr or not the Office became vacant at
ms expiration of four years from the date OF
HarrIson'e election the Legislature having failad
10 e,act successor. It held that the Office must
nave become legally vacan. at some time before
!he executive function coaid have been called
into exercise to make appointment While
u was the right of the executive department to
determine, Tor its own guidance, whether or not
vacancy existed, aud while every intendment
was 70 oe INDUCED in favor of the executive, it
ha hAr,o to-
power OF the Governor to make q valid appoint
mens ttld not arise until there was a vacancy
c - ,sc.. me existing title of incumbent
could not be extinguished by the ex parts iudg-
ngnV OF the executive that the Office was vacant.
Inc right OF an executive appointment de-
penoso upon whether or not the Office was with
o'ls an mount bent lawfully entitled to continue
therein, at the time the appointments was made.
The word vacancy had no technical meaning
1 AN once i was not vacant so long asit sup
pheu IN the manner provided by the Constitu-
tlon or law with an incumbent who was legally
qualilied and conversely, il was vacant in ths
eyes of the Law whenever it was unoc-
bent who. had : lawful right to ,iV CON.
TIME therein until the happening of some
future event" Wen an office had been con.
ierred upon one, legally eligible and had been
accepted, no vacancy could be said TO exist
therein Until the term of service and right to
5 aolo az hxed by the law expired, until the
aia, resienaton or removal of the person
elected or appointed.
Was. therefore the Office of president of the
several boards. having the management of the
State benevolent institutions vacant At the
time Of the appointment OK the relator (Csrson?1
Inc question depended upon whether or not the
respondent tHarrisonl had the right to hold
over until bis successor was elected and quail
neu oy the Legislature, o. whether a vacancy
occurred at the end of four years. Whether or
n n% as general principle of law
on1cers were entitled to hold over beyond their
prescribed terms without some express provis-
ION, was not settled upon authority although
que we" adopted by the American courts
seemed 90 be that in the absence OF any re-
strieded provision the officer was entitled to
nofu until he was superseded by the election of
another person in his place. The policy of pro-
visions OF that nature was to prevent the hap
pening of vacancies, except by death, resiena-
lions, etc They rested upon the assumption
that the wiser course was. in case
the electoral body failed to discharge
It's functions. to authorize the incnm-
bent to hold over until the succeeding
election rather than that vacancy should occur
to be filled by the appointing power. The term
elected" used in this connection might mean
either the votes of the people of their repre-
sentatives. The REALTORS assumption that the
provision Of the Constitution respecting the
right OF officers to hold over until their sue
cessors were elected and qualified did not apply
to officers elected by the General Assembly was
radically erroneous, and was an error which lay
italy the only plausible foundation upon which
his contention rested"
Tho relator had also contendsd that the Con-
stitution prohibited the Legislature from Great
ing any Office the tenure of which should DO
longer than four years, and that the Office neces-
sarily, therefore. became vacant at the end of
that tims but that would be unnecessarily
rigid constr uction Of the term tenure"
Alth ough the Constitution prohibits the crsa-
ton of term OF Office for more
th an four years. yet under the con-
stitutional provision referred to the in
cumbent is entitled to hold after the expiration
of the term fixed and until a successor is elected
and qualified. The trainers OF the Constitution
intended to prevent vacancies in such Offices.
Under the terms of the Constitution the re-
sponeent was occupying the Office de facto and de
jure at the time the relator was appointed, and
by thus occupying there no vacancy, and
no power in tho Governor to appoint.
The effect of the opinion will be to settle the
controversy in the other cases-those against
Gapen and Burrill, we'll as against Harrison.
When Governor Gray asked what he in
tended to do in the case. he said: II appointed
the officers and the Supreme Court decide had
no authority to do so. That is all there 10 to do
about it."