The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1889-05-01
THE LAWS KNOCKED OUT.
DECISIONS BY THE SUPREME COURT.
The Board OF Control and the Police and
Fire Department Acts Declared UncOn-
stitutional--Judge Mitchell Strongly
Dissents-The Probable Effect.
DAILY sentinel Of April % ]

] Inc state supreme court yesterday declared
unconstitutional the Curtis bill, creating a
board of control for each city in the state of
/ $4,000 inhabitants, and also the Bigham fire
| and police board bill applying to this city and
! Evansville. The point at issue in the cases was
much the same-as TO whether the legislature
possessed the right to legisate for cities within
/ the state. The opinion of the five judges was
I not unanimous IN the matter, inasmuch as
/ Judge Mitchell dissented from his colleagues
1 All of the learned gentlemen took occasion to
express their personal views on the subject I'M
der discussion, and the amount OF documentary
wisdom handed down was something enormous.
Judge Coffey rendered the principal opinion.
| in the board of control case, and around it the
others built their edifces. Judge Cofey's
opinion was, in brief, as follows:
The act provides that such board shall consist of
/ three members selected from the two leading par
ties 10 be reeholders and TO execute bonds etc The
act abOlishes all existing boards OF public improve
lnent aud the Office of street commissoner and con-
] fers their power the board created. Power over
streets sewers alleys drains, bitches, sidewalks and
curbng for construction repairs etc. given 1t is
insisted that under the constitution the legislature
had no power 20 elect appoint appellants as MEM
beers OF the board aud that much OF the act as
attempts to confer on il such power is in conflict
with the constitution and vOid.-Sec. l. art. 3.
To which one OF the three departments OF govern
ment does the power OF appointment belong? Alter
/
Generally then the appointment 10 an office Is an
| executive function. 1t must be conceded, however,
that u Is not every appointment 10 once "hieh IN
wolves the exercise OF executive functions as, l0r IN
/ stance, the appointments made by judicial
! officers in the discharge eli their official
duties the appointments made by the
general assembly of officers necessary
to enable them properly discharge its duties an
independent legislative body, and the like. such
ment are necessary to enable them TO maintain their
independent existence, and do not involve an IN
eroachment upon the functions of any other branch
But the appointment TO an office like the one in
/ yOlved here, where it is in manner connected
with the discharge Of legislative duties think, in
wolves the exercise OF executive functions and tails
within the prohibition OF sec /, art. g." The court
then reviews the constitutional power of the egis-
lature 10 appoint and holds that those provisions
errng on the legislature the power to create
( ofhces do not give the power 10 fill them. The
( legislature has no power to f by appointment, a
/ The court holds the entir act unconstitutional.
! subversive Of local sef-government.
Judge Elliott discussed the question: elias
the Legislature the power to appoint local Off
/ GERS, county, township, city or town" say
ing;
Our constitution does not take away the right OF
the people to chose their own rulers but leaves il 10
/ the people, undiminished and undisturbed. =" .
Ii the proposition to impair OF destroy it had been
tone OF the bates and the course OF the proceed
ingS, il would have been Sternly and eectually
/ demned
/ After quoting from Thomas Jefferson, Prof.
Leber and Others, the opinion continues:
The appointing power which the general assembly
/ possesses-as d. from that incidental right OF ap-
pointment resident in every independent branch Of
! the government-is limited and confined to class
oil ofceS, ana TO this class, local municipal offices,
/ whether county, township or city, do not belong.
1t was said in argument that our English ancestors
fought To abridge the executive power and to extend
that OF parliament This is true of the earlier years
4 OF British history, but II Is equally
true that as the years passed the
overshadOwed the executive as to make parliament
+ omnpotent. Assuming that the general assembly
has some power OF appointment, II cannot be granted
that il eStends-if indeed. il extends farto any
other officers than officers Of the in the broadest
sense OF the term. An officer Of municipal cor
porati"n is not state officer. As the general assem-
bly, represents the state at large and municipal
/ officers not state officers, the general assembly
can have no power 10 appoint them. The legislature
may change the form aud mode Ia which municipal
corporations should be governed. but il has
power 10 deprive the electors OF municipal corpora
tiOn OF the right TO choose its own immediate Off
GERS Because On electOr lives In a city he cannot
have the right to vote upon purely local affairs taken
+ from him by any statute
! In conclusion, Judge Elliott says:
/ Construed aud uniform exposition. broken by this
act for the first time in whole history of state,
supports the views the majority OF the upon
the question of the right of citizens of municipality
20 choose their local officers The essential and
abiding principle OF local sef-government supports
/ Ii. The rule that the people, whose property is
/ liable for munipaI debts should choose those to
/ whom they will eutrust the management of their
local affairs. yields IL support. The rule that the
constitution recognizes the principle that the people
OF locality govern themselves honestly and in
telligently without the direct guardianship of per-
representing the statea.-arge gives it support
of no uncertain character The broad principle that
laws shall be uniform throughout the state, and that
the electors Of some localities shall not be disenran
ohised, while others left with the undimnished
b rights OF freemen, supports it."
Judge MITCHELL in his dissenting opinion,
/ discusses the case as follows:
]
out of the proposition that local Self-Overnment
applied 10 the regulation Of municipal affairs under
the constitution OF the state of Indiana is an inner
ent right OF the people Older than any American
constitution, not conferred upon them by the egis-
latuTe but it is an "inseparabe incident TO repub
/ lican government and entirely beyond legislative
interferences. 1t Is affirmed that the enactments,
while not in eontraventon of any express constitu-
/ tiona provision, violate these Fundamental maxims
! of government and that they are void. The writer
says the rule of Interpretation is that the authority
of the legislature Is supreme and subject to linn
ton OF the state, that of the United States and the
/ laws and treaties made under it. The power TO de-
with utmost care and alter all doubt
! has been removed TO its validity.
The legislature must be the sole judge of whether
not act is in violation OF the principles of local
self-government unless those principles defined
in terms in the constitution, and II must BE- assumed
In the absence OF constitutional definition that these
principles we'll understood by the legis
by the If is in violation OF the
stitutiOn the courts should when clearly convinced
sharplss rsayor etc. q Pa St, AZ. 10 go further
/ than this and 20 hold that law. though not pro-
hibited is void il IL violates the spirit of nstitu-
tons OF impairs any OF those rights which il is the
object OF the government to protect is not subject
/ OF Judicial cognizance.
The aegomeration Of population into great cities,
and the commercial and manufacturing interests
that ensue have produced the necessity for legisa
ton, as here involved in almost every
? state. An unbrOken line of decisions
sustain the formation OF boards for the control Of
local affairs of cities which affect the health, safety
and convenience of persons and the protection of
I property within municipalities
! The error in argument by which the uDconstitu-
tOnaity Of the act is attempted IN be maintained,
springs out of the faaciOus assumption that the
people Of a city or town have any interest OF in
herent right whatever to municipal government,
when every atom and vestige OF right in those
spects under system is such and only such the
legislature cOnfers Judge Mitchell then holds that
the control streets the sewerage and water supply
the fire and police department in popuOus city are
all subjects Of public 10 the state and there
fore subject legislative control These subjects
all relate TO public convenience the public health
and safety, and the protection of persons and prop
/ erty.
The BIGHAM BILL.