The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1889-04-24
Ayers Sarsaparilla,
TWO CASES DECIDED.
PREPARED By
D.. J. c. Aver & Co., Lowell, Mass.
Price 81; six bottles, s.. Worth s. bottle.

The Carson Board sustained-The Supreme
Court Commission Bill Invalid.
The supreme court Saturday handed down
Its opinions in two important cases. In the
case OF Gov. Hovey against Joseph L. Carson
the decision of the lower court in favor of Car
son was sustained while in the case of the ap-
poiutnent of the commissioners of the
preme court the law passed by the
late legislature was declared unconstitutional
Upon the latter case the FIVE judges were
unanimous. both upon the opinion rendered
md the argument leading up thereto; but in
the Carson case the judges, while unanimous
as to the conclusion reached, differed in the
line of reasoning leading to the opinion.
The principal opinion written by Judge
Mitchell and the others given with reference
to it. Judge Mitchell cites the gravity OF the
case and then states that its decision turns in
his opinion upon the determination OF the
question as to whether the general assembly
Is o. can be invested with the power Of APP
pointment of trustees for the government of
the various benevolent institutional
power claimed for the legislature by the
defendant in the case, but challenged by the
plaintiff. He recites the fact that the legisla-
ture has, in the past always made such APP
pointments, with probably one or two exeep-
tons, when IL has, however, directed
how they should be made. 1t
error. ne SaiQt 10 assume Indt
the exclusive right of appointment was
contained in the general grant OF power made
to the executive. The power of appointment,
while inlrinsiealy an executive act might be
confided to other departments Cf the govern
ment unless IL had been especially conferred
upon the executive or inhibited to the other.
In fact, however. the power to appoint agencies
for the government OF the insane hospital was
not left to inference, but had been expressly
conferred upon the general assembly. The
aarn nah
upon the legislature the duty to make pro-
vision by law for the maintenance
of the institution. That body was left abso-
lutely untrammeled as to the means 1t should
employ. Trustees Tor the hospital for the in
sane" said Judge Mitchell care officers for
whose appointment no provision was made in
the constitution. They were officers who,
according 10 the method existing at the
time the constitution took effect, were
appointed by the general assembly. That was
the method then existing, and must therefore
be regarded as express authority to the general
assembly TO use its discretion IN providing for
the appointment OF officers such as those here
Judge Berkshire, in his opinion, among other
things said
'sThe power to appoint to Office is an executive
power or function, and is lodged with the exec
utive (which includes the administrative de-
partment of the government, except where the
organic law expressly provides otherwise. The
legislature may create Offices, but has no power
to appoint officers except such as relate to
the exercise of its legislative functions or
power, unless the power so to do is
conferred expressly by the constitution,
and then it must be exercised within the
letter of the constitutional provision; nothing
can be taken by implication. There
Is some appointing power given to the legslat-
ure in our constitution other than that which
relates to the exercise of its legislative power
all officers whose appointment is not otherwise
provided for in the constitution
"There were certain officers in existence when
the present constitution was adopted that were
continual. and no provision is made in the
constitution for the election or APP
pOintment OF the officers to fill the
Offices. The words (now isl in the cOnsttu-
tional provision continued the power in the
Legislative department. ito appoint those officers,
bat gave il no power to appoint others. Ii
gave TO the general assembly no power TO Gre
ate an Office and name the incumbent. The
legislature may provide by law for the appoint
ment of all officers not provided for in the con-
stitution, bur the appOintiye power must be
lodged somewhere within the executive de-
partment of the government"
In the opinion of Judge Berkshire the only
Offices now in existence that existed when the
constitution was adopted to which the general
assembly exercised the power Of appointing
the incumbents are the state librarian, wardens
OF the state prisons and trustees OF the insane
asylums.
Judge Coffee said: az cannot believe that the
duty conferred on the general assembly by the
constitution, 10 provide for the benevolent in
situations, carries with II the power to appoint
officers TO mar age such Institutions. IL
has such power under the law In force at the
time of the adoption of the constitution, unless
a different mode of action was provided for
by the constitution itself"
In the case Of the supreme court commission
ers the opinion was written by judge Elliott
1t is replete with citations from other courts,
and from celebrated lawyers and iurists OF En-
gland and the United States, showing that the
judicial power which could not be
delegated. The judicial power was invested in
courts and not in officers Courts only could
exercise judicial power, courts were composed
of judges, aud judges could be elected
only by the people or appointed by the
governor. The source OF judicial power was the
constitution and not the legislature, and
the constitution would not be evaded by
change in the name Of an officer nor the dnties
OF a constitutional officer divided. The SUI
preme court was constitutional tribunal. Ii
was composed of judges only, for only judges
could constitute court.
IN both opinions the constitutional" point
raised by Secy. Of State Griffin, regarding the
signature of the acts after they were passed
over the governors vetO was treated as OF no
consideration, the supreme court holding that
ali the proper signatures were attached to the
bills
The effect Of these decisions on the other
constitutional" cases now before the supreme
court does not fully appear. Whether the
other boards chosen by the legislature will
stand on the same footing as the Carson board
is uncertain. all depending on how much
weight the court attaches TO Judge Berkshire's
argument. The legislature only has the right to
elect trustees 10 such boards as we're in exist
ence before the present constitution was
adopted. Gov. Hovey says he wants to ex-
anime this point more closely before deciding
what course TO pursue regarding the other
boards.
How She Got In.