The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1889-03-07
A CONSTITUTIONAL QUESTION.

A CONSTITUTIONAL QUESTION.
The only argument yet made in favor
Of the right of the Legislature to create
offices and appoint their incumbents is
that it has done so for many years, and
that the right has never before been
questioned. That does not touch the
point. In the absence of a written Con-
stitution a particular practice might, by
long usage, gain the sanction of unwrit-
ten law, but no practice plainly contra
vening the letter or spirit of the Consti-
tuition can by mere continuance become
legal. To assert this would be to say
that a wrong becomes right in time and
an abuse grows sacred with age. The
statute of limitations does not run
against the government, and an uncOn-
stitutional practice, however long con-
tinued or acquiesced in, cannot estop the
courts from asserting the right
doctrine when called upon to do
so. We are told that Governor
Gray, Governor Porter and their
predecessors all recognized the right of
the Legislature to elect executive off,
GERS. Suppose they did; that only proves
there was no contest between these Gov
errors and the Legislature and that the
question never was raised. Now it is
raised. In raising it Governor HOvey is
not usurping any power to himself nor
e~ncrOaching on the rights of the Legis-
lature. He is simply resisting what he
deems an encroachment of the Legisla-
ture on the prerOgatives of the execu-
tive. He is acting on the defensive, and
is asserting what he believes to be the
correct construction of the Constitution.
Whether he is wholly right OF wholly
wrong, or partly right and partly wrong,
no interest can suffer by a judicial inter-
probation of the Constitution in this re-
gard and an authoritative definition of
the powers of the different departments
of the government.
A very cursory reading of the Consti-
tuition shows that it's trainers intended
to establish a distinct line of demarka-
ton in the division of powers. Thus, it
says, Section 1, Article s.: 1.-THE powers
of the government are divided into
three separate departments-the legisla-
tive, the executive Including the admin
istrative) and the judicial-and no per-
son charged with official duties under
one of these departments shall exercise
any of the functions of another, except
as in this Constitution expressly pro-
vlded." Then, under the appropriate
heads, it says: "The legislative author
ity of the State shall be vested i'm a Gen.
eral Assembly," "the executive powers
of the State shall be vested in a Govern
or and "the judicial power of the State
shall be vested i'll a Supreme Court, in
circuit courts and in such other courts
as the General Assembly may establish"
This last provision contains the only
| authority of the Legislature to "estab-
lish" a court, but it confers no right to
elect q judge. The provisions
quoted show a fixed purpose to
make the Legislative, executive
and judicial functions entirely
separate. All executive power is vested
in the Governor, and must flow from
him. The Legislature, having no X
ecutive power, can confer nOne. The
appointing power is an executive power,
and as the Legislature has no executive
power it cannot exercise the appointing
power to executive offices. This is the
Governors position. 1t finds strong
support in the language of the Constitu-
ton, and still stronger in the vicious
tendency and logical results of the prac-
tice of legislative appointments to ex-
ecutive offices. If the Constitution does
not prohibit the practice, it ought to.
If the Legislature a appoint a dozen
or a score of executive officers, it can ap-
point a thousand, and there is an end of
popular government. The principle and
practice once firmly established, there is
no limit to the extent it can be carried.