The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1889-11-13

as far from the Offices as ever, and the
method of evasion resorted to is the
proposition that the governor has the
right to fill vacancies, and that vacancies
exist in all newly created offices to which
no one has been elected. That there
could be a vacancy in a newly created
elective office before there was any cleo
ton at which it could be filled, and in
the absence of any constitutional legisla-
ton providing for the interim, will be a
novel and unique theory for the consider
alton of lawyers. No authority for it is
offered Indeed the decision throughout
is based on the proposition, I'm our
opinion this is the law" This theory is
set forth, in reference to the law of 1879,
by which the power of appointment was
given to the governor, in the following
words:
In so far as it provides for the appointment
by the governor it is simply declaratory of the
constitution, and gives to the governor no
power that he did not possess by virtue OF the
constitution, as by it he had power to fill the
vacancy until an election by the people, and
the legislature could give the governor no
greater authority, but this section is valid and
operates to fix the tenure of the Office.
This position would of course leave the
legislature at liberty to eyade the constitu-
ton at will, by providing for the election
of an officer by itself, or for his appoint
ment by the governor, as in either case,
on this theory, there would be per-
petual vacancy for the governor to fill. To
escape this pitfall, the judge announces the
following dictum:
1t would seem that they 1.-THE people) would
have that right and might elect such officer at
a general state election, even if there was no
statute in force governing general elections
that contemplated the election of such officer.
The people cannot be deprived of their rights
TO elect en- officer by the neglect or refusal OF
the legislature to discharge its duty.
Under this theory the only safe method
of procedure would be for political parties
to make nominations for every state Office,
no matter what the law provided as to
filling it, and let the supreme court take
its pick from the contestants after the
election. Chaos would be an airline
railroad compared with such a method of
procedure, and the people of Indiana are
to be congratulated that this will be the
law only until the election OF successors to
Messrs. BERKSHIRE, CoFFEY and OLDs.
In the first page of his dissenting
opinion Judge ELLIOTT states his position
fully and lucidly. lie says:
/ am fully persuaded that the legislature
ought not TO have the general power to create
and to fill Offices of its own creation, and that
if the opinions of the great thinkers of our
country had been given full force it would
have no such power; but while am persuaded
that it should not have this power, my judg.
ment is thoroughly convinced that it does have
power to create and TO fill a class of Offices and
that the Office in controversy belongs to that
class. | regret the conclusion but | can not
escape it. / have searched with all possible
care, but can find no decision which sustains
the contention of the relator that the appoint
ing power resides in the governor. | find no
conflict, but entire unanimity, for in every case
/ have seen it is affirmed that unless expressly
prohibited by constitutional provisions, the
legislature may create offices and hll them by
appointment.
We willingly concede that there is grave
reason for doubling the wisdom of cleo
tons by the legislature to newly created
offices, but the question is not what we're
best, but what is. While Judge ELLIOTT
meets the question thus fairly and frankly,
his republican colleagues virtually say,
Eve hold this law unconstitutional, not
because in conflict with the constitution,
but because in our opinion it ought to be-"
We do not care to attack their motives in
taking this course. 1t is within the range
of possibility that their recognized lack of
legal attainments may justify the decision
from moral standpoint. The bar of In
diana knows the individual merits of the
supreme bench, and will recognize the
fact that the judges of that court have up
held the constitutionality of the law al
though the court did not. The decisions
ofJudges Rowland, ELLIOTT and MITCHELL
vindicate the legislature; Mr.. OLDs vindi-
Gates himself; and at last accounts Napo-
leon HovEY is unvindicated.