The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1889-06-14
WANTS CASE REVIEWED
Governor Hovey' s Appealtoth Supreme
Court for a Reversal of Its Decision.
The New Brief, in Which Argument Is Pre-
scented Against the Issuance Of a Commits
sion to John W. Riley as a Trustee.

A. C. Harris and J. III. Gillette. associated
with him, nave filed their brief relating to
the Governors petition for a Tehearing In
the Supreme Court of the case brought
against him by John w. Riley. This was
Riley's effort through mandamus proceed
1ngs to obtain from the Governor a commits
sion as a trustee of the Institution for the
Blind. The Supreme Court held that
Riley was legally elected a trustee by the
Legislature. and that he should be SO COM
missioned. After presenting IN main the
argument as to all power being derived
from the people, the brief sets out that it
Is not claimed that any provision of the
State Constitution expressly vests the
legislative department with the power to
appoint the officers of the benevolent in
situations. Every one will cOncede that the
trustees, or governors, of the benevolent
institutions are administrative officers.
They are the hands of the State in caring
for the unfortunates whom the State has
made her wards. The executive is required
TO take care that the laws of the State for
the benefit of these unfortunates shall be
faithfully executed. And he may require
information from these officers upon any
subject relating TO their duties in the man
agement and control of the benevolent in
situations. This power the executive can
not exercise over any legislative or judicial
officer.
Now. as these governors, OF trustees, of
the benevolent institutions are by the
terms of the Constitution expressly placed
under the control of the executive-be-
cause he may require from
them, and, having that information, 1T Is
made his duty to see that the laws of the
State towards them be faithfully executed;
and. as appointment to office is an exec
dtive function, and as the legislative de-
partrhent is prohibited from exer-
clslng functions, except as IN
1t follows that Mr.. Riley must point
to some express constitutional provision
vesting the Legislature with the appoint
I've or executive power to award him the
otice-or fail. The burden is upon him.
He must recover this office. if at all, from
the Governor On the strength of his own
title. He must show that his title by legis-
lative appointment is superior to the one
claiming the office by executive appoint
ment. The executive department has the
right in this case to demand that Mr.. Riley
and his counsel shall put the finger upon
the express provision of the Constitution
taking the executive power of appointment
from the Governor and giving 1t to the leg
islative department.
The executive now makes this demand.
but he does not narrow the demand as per-
haps he might, under the terms of the Con-
stitution, to literal words, but does insist
Win CIlpudolS tudb tncy oudll pun LILO
finger on some clause which clearly means
and was understood at the time of the
adoption of the Constitution to mean.l that
the people intended that the legislative
department. and not the executive
ficers to have custody. management
and control of the benevolent institutions.
This is SO because Mr.. Riley cannot point
to any negative clause saying the executive
department shall not appoint, and because
the nnwQr nj nnOInfmQnf nn6Rr the En-
glish and American constitutions Is vested
In the executive absolutely, unless express
ly limited or expressly denied:
1t must be conceded that Mr.. Riley and
his counsel, the argument continues, are
unable to point to any provision which ex-
pressly vests the legislative department
with power to nominate and appoint Mr..
Riley to the Office for which he sues. All
his contention is: THE Constitution con-
tains provisions which, if they do not do
more, at least supply color for the claim of
the right of the General Assembly to ap-
point the governing. officers Of the benevO-
lent institutions of the State. Yet no sec
ton, or clause, or phrase Is indicated by
the court that either supplies color or does
more. The appellant believes that it is due
TO the executive department of the State.
ind to the people of the State. that
the court should point out what provision
pr provisions, II any, give color, or
what provision, or provisions, if any, dOmore.
{f any provision does more than give color,
that is, gives substantial appOintive power
with the executive or exclusively, over the
officers of the State benevolent institu-
tions, appellee's able counsel will no doubt,
on q reargument, mention them. b argu-
ment of the opinion seems to repOse upon
some provision. or provisions, not men
toned as giving color merely, from which
it is deliberately and boldly argued that
long-continued and .unchallenged con-
struction. of q statute or constitution
is sometimes called "practical EXPOSITION
For the purposes of this petition the ap-
pellant does not enter into a discussion of
this rule of Interpretation. nor how far it
applies to constitutions, nor what differ
ence, if any. exists between a constitution
and q statute in this regard. The appellant,
however, affirms two propositions to be
true: First, there has been no continuous
and uniform exercise of the appointive
the office of trustee of the benevo-
lent institutions, but on the con-
trary, the acts and journals of
this State disclose that these officers
have as often been minate and ap-
pointed by the Governor as by the General
Assembly. And the cases where the Gov
ernor has submitted the names of the ap-
pointees to the Senate or the General AS
sembly for confirmation no more warrants
an argument in favor of the appointing
OOAhk NOOtCo III thO li0u
the confirmation of the Cabinet or other
officers of the United States by the the Sem
ate would support an argument that the
Senate was possessed of the appointive
power. Second, even if so, neither the ex-
ecutive or judicial departments of govern
ment can be shorn of any single cOnstitu-
tional p~rerogative by legislative tres
passes, ne matter how otter or now broadly
asserted No more can the Legislature by
silence or acquiscence yield up to the Gov
ernor or Judiciary any of it's functions.
And If a legislative department., through
fear or favor Tor other motives) of the ex-
scutive do so. even for a century, then q
Legislature composed of good and true
men might re-assert and re-exercise the
proper functions of that department as
originally empowered to do. In other
words, If either OF the three co.
government yields to or even cOnniyes at
an illegal construction or assumption of
authority for a period. no matter how long.
the officers In such department have the
right at any time. and it is their bounden
duty, to resist and push back the trespasser
within the constitutional limits of its own
authority. Else In time the Legislature
might appropriate every function of the
judiciary or the executive departments not
expressly given by exact and exclusive
words of grant.
The brief then analyses the Constitution
and avs applicable to appointments. and
closes with the following: "Will it he
doubted that the office might be made
elective by the peoplef If so, then until
the people, through the Legislature. pro-
vide for filling the office by popular cleo
tion, who, under the Constitution. is to fill
4. ~as.ao L. - - a