The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1889-05-22
NAPOLEON MEETS DEFEAT.
SUPREME COURT SITS ON Hovey.
Trustees OF the benevolent Institutions
play BE Appointed by the Legislature
and Even a Napoleonic Governor
Must Issue Commissions.
[pallr sentinel. Nav 1a.l

daily Sentinel, May 1a.l
Chief Justice Elliott of the supreme court
yesterday handed down decision in the case
of John w. Riley against the governor. Judges
Berkshire and Cofey dissent, but file no opin-
ion. Riley was elected by the legislature as
one of the trustees of the institute for the blind.
1t was understood, when the case of the insane
hospital trustees was taken into the supreme
court that the decision thereon should govern
the action of the governor with regard TO the
trustees of the other benevolent institutions.
But the governor refused 10 issue commissions
TO the trustees OF the blind and deaf aud dumb
institutions and Mr.. Riley brought suit to COM
pei him to do so. The decision yesterday covers
all the institutions, though it does not settle
the point at issue between Profs. Collett and
Gorby, with regard to the Office of state geolo-
gist. Gov. Hovey was out OF town when the
decision was rendered, and il was i'm possible to
learn what chute his Napoleonic policy would
take. The decision in the main is as follows:
THE central question which this record pre-
sents is this: Is the reatOr, by virtue OF his
appointment by the general assembly OF the
state, entitled to the Office of trustee OF the in
stitution for the education OF the blind? In
our Judgment be is. That there is class OF
officers that may be appointed by the general
assembly can not now be justly denied, and
the only question which Is still open to debate
is, what officers belong TO this class! Ii is our
judgment that, in view of the provisions of the
constitution and the effect given them by prac-
teal exposition, the governing officers OF all
of the benevolent institutions of the state may
rightfuLy be appointed by the general assem-
bly,.
"The constitution contains provisions which,
if they do not do more, do at least supply color
for the claim of the right OF the general assem-
bly, to appoint the governing officers OF the
| benevolent institutions OF the state. IL IS
neither necessary nor proper for us to decide
as to the general extent of the legislative power
TO appoint 10 Office except in so far as IL is in
cidentally involved in the disputed right to the
Offices of the class claimed by the relator.
CAS- there is some warrant in the constitu-
ton for the claim of the legislative right to APP
point the governing officers OF the benevolent
institutions, 1t is duty TO ascertain what
practical exposition has been given to the con-
stitution, and if we find principle established
by long continued practice we must yield to 1t,
unless we are satisfied that 1t Is repugnant to
the plain words of the constitution.
Our own, and other courts, have time and
time again adiudged that practical exposition
is of controlling influence wherever there is
need OF Interpretation. Bruce VS. Schey-
! Ter, 4 Gilm, 221; Rogers We. Good,
Mass, AS; board VS.. Bunting, Ill Ind, 143;
Weaver VS. Templin, 113 Ind, POS. sol; Stuart
VS.. Laird, l Cranch, 299; Martin VS.. Hunter,
| Wheat, 304; Cohens VS.. Virginia, 8 Wheat, 264;
Ogden saunders, l. W neat, ID, ~. Minor
VS.. Happersett, II Wall, 102; state VS. Parkln-
son, New, 10; Pike VS.. Morgan, Al Mo-, 49l;
People board, 100. Ill, 495; state VS.. French,
, Pinney Wis., 1911
THE principle which the long continued
practice has established is that the general as
sembly has the power to appoint The governing
officers of all the benevolent institutions, or at
its option, authorize their appointment by some
other department of the state government.
This is the effect of the practice, and it is mar
rowing the effect of this practical exposition
1 very much beyond what reason and authority
/ justify, to hold that il applies TO some of the
| institutions and not 10 the others. We cannot
believe that the general assembly may right
| fully appoint the trustees of the hospital for
| the insane, and vet have no authority to ap-
point those of the institution for the education
/ of the blind. The practice establishes prin-
| eiple, if 1t establishes anything. That princi-
| pie applies to class Of officers, and within
| that class are the officers of all the benevolent
| institutions OF the state. IL is impossible to
conceive why the general assembly may not
appoint the officers of all the benevolent insti-
tutions if it may, il is settled it may do, ap-
| point the officers OF one. The principle is the
same in the one instance as it is in the other.
and the class embraces all of the officers OF the
different institutions.
The decisions of this court either expressly
| decide or tacitly concede that some appointing
power is vested in the general assembly. lCol-
Inns VS.. the state. Ind, 344; state ex rel VS..
] Harrison, llS STATE e4 rel. VS.. Denny
(this term); state ex rel. VS.. Carson this termJ
"The practice which we assume constitutes
| practical exposition, is, therefore, one recog-
| nIzed by all the departments OF the govern
/ ment, and is of unusual strength. 1t is so
| strong that we can not do otherwise than yield
to it, so that, without deciding what effect the
/ provisions of the constitution should have in
/ dependently of practical exposition, we
must decide that, under the operation
of this practical exposition, they must
he 10 foff
! governing officers of the benevolent institu-
TONS since this practical exposition establishes
/ a general principle which must govern all cases
that legitimately fall within its operation.
! The power to appoint, or direct the appoint
ment OF officers embraced in the class TO which
/ the one here in controversy belongs, has been
| exercised by the general assembly ever since
4 the adoption of our present constitution. At
/ the time that constitution was adopted this was
the practice, and of this practice the trainers of
/ that instrument had knowledge. Instead of
embodying in the present constitution provis-
| ions against the practice, those who framed it
placed in it provisions giving the practice sub
| stautial recognition, and we cannot, at this
late day, assert that the practice persisted in
| for so many years was In violation OF the con-
| stItutional provisions.
cit is, as it seems to US, an Office which may
| be properly regarded as within the control of
| the general assembly, the control belonging to
/ that body as an incident of the right to estab-
lish and maintain benevolent institutions.
| Estate ex rel. vs. Carson, SUPRA
Another consideration not without import
ance and one that is TO be regarded in constru-
ing the constitution and giving effect to its
provisions is, that the benevolent institu-
tons are the property OF the state,
and as such, within the general control
of the legislature. As the legislature has gem
eral authority over the property OF the state
and as it may appoint agents or officers to man.
! age that property, there is a solid foundation
for the practice which has so expounded the
constitution, or aided in expounding it, as to
give the general assembly the power to appoint
| the governing officers of the benevolent and
| other state institutions. The basis of the
practice is the familiar principle that the grant
of a principal power carries with it all neces-
sary subsidiary powers"