The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1890-02-05

ITFS IUtfT TIfTB r1TdIT DC ETFFIFu On III FUTFTSD T
the State a Secretary, an Auditor and q Treasurer
of State, and that they snail perform such duties
as may be enJoined by law. Not a single duty TO
be performed by these officers Is prescribed by
the Constitution. Ii the construction contended
for by the appellee can be sustained, the General
Assembly may create any number OF State
name 1t may choose, make them appoiDtive and
transfer 10 them the statutory duties now per-
of State. thus rendering the constitutional pro
vision that the administrative State officers shall
be elected by the people q dead letter. III would
be difficult to find any constitutional provision
expressly prohibiting the General Assembly
from the creation OF such Offices, making them
appointive and from transferring to them the
statutory duties now performed by the admins
trative State officers above named; and yet such a
proceeding would he such q plain violation OF the
intention OF the trainers of the Constitution that
no court would hesitate TO declare that III dld not
possess such power. To permit such a c%onstruc-
ton would place Ii in the power OF the legisla-
tive department CT the State to wholly absorb
and usurp the executive and administrative de-
partment. 1t Is immaterial whether 1t Is usurped
by the direct action of the General Assembly, as
a Legislative body, or whether it is done indi-
rectly by its own appointed agents. The result
In either case is the same. BY the express terms
OF the Constitution the General Assembly is pro-
hibited from exercising executive or administra,
tive junction, except in cases expressly provided
for by that instrument. That the General AS
sembly may not create an administrative state
Office and provide for filling the same by APP
point-nent. Indefinitely, we have no hesitation
in affirming. nor do we hesitate TO hold that the
pTONlblOus OI SeCtlOn i, AfIlClt III, udNo Az dp-
plication to this class OF State officers.
The intention of the trainers OF our Constitu,
ton that this class OF officers should pe elected
by the people is SO plain thatf II cannot beignored.
That there are but two offices of that class now
in existence not made elective by the law Great
Ing such office Is perhaps true, but this furnishes
no reason for not referring them 70 the proper
constituency for election. The officer now III
question has charge or O separate ana distinct
d dsasrtS EN- ,s OF w the state sa =gSTernmsioT' of anf that II
department., and Is, in that sense, as much an
administrative State officer as the superintendent
of Public Instruction. The fact that sucn de-
Constitution, we think, does not change the char
acter of the Office. 1t Is also urged that In the
absence of some express statutory or constltu-
tional provision the Governor of The State can
not fill an office by appointment. We have
no doubt that the General Assembly, may
In certain cases create an office and pro-
vide by law that Ii shall remain vacant until
some future time; but such Is not the case before
us. When an office is created, to be filed imme-
diately, the presumption must be INDUCED that
the authority creating such Office was satisfied
that there was a public necessity for the ofi'ce.
II no legitimate mode is provided for flling the
same. it Is vacant the moment the law takes
effect by which it IL created. Tie Constitution
provides that the Governor shall see tolt that
the laws are faithfully executed. Inc law
abhors a vacancy in a necessary office. and
under this constitutional provision, we THINK.
the Governor not only has the right TO MI all
vacancies in State offices, where no other legal
mode is prescribed. but that it is his duty TO do
so, to the end that the law prescribing the duties
or the Incumbent or che ONCE may ne Iaitulully
executed. II it were not so the public would
suffer. and the Governor would be without the
power of performing this constitutional obliga-
ton.
1t is commended that if the provisions Of the
statute which reserves TO the General
Assembly the power to fill the office created
with II, for the reason that We cannot presume
the General Assembly would have passed the
law had it not believed 1t possessed the power
to elect the incumbent. Such an assumption
can only be maintained upon the supp0sition
that the General Assembly created the office in
place for some particular partisan or individual.
We cannot attribute to "A co ordinate branch OF
the government an object so unworthy of 1t and
of its vel. known duties. We must attribute TO
that body the belief that the office in question
was demanded by the public necessity, and that
1t was created for that reason, without reference
to the constituency which should choose the
person by whom IL should he administered
Striking from the law the provision reserving TO
the General Assembly the power TO elect the in
leaves a perfect Law, capable of being executed
according TO the intention of the Legislature, as
Il nec esprefSed' follows pfoW ~n that we t dase G se
appoint or elect the appellee to
of the State had the right TO fill the vacancy
therein by the appointment OF the appellant.
The court erred in sustaining the demurrer to
Judgment of the Circuit Court is reversed, with
Instructions to override the demurrer and for
further proceedings not inconsistent with this
opinion.
In his dissenting opinion Judge Elliott
said: II do not think it necessary to over
rule the case of State ex rel. VS.. Denny. 1lS
Ind, or that of State ex rel. VS.. Jameson,
lis Ind, for l think those cases rest prin-
cipally upon the ground that the inhabit-
ants of a locality cannot be deprived of the
right of local self-government, and no such
question is involved in the present case.
To my mind those eases are so widely
different from the present that it j, incon-
ceivable that the questions here involved
can be controlled by the conclusions
reached in the cases referred to. although
it is perhaps true that some of the reason
ing and illustrations of the judges who
wrote the opinions in those cases may
support the conclusion here declared in the
prevailing opinion" Chiefjustice Mitchell
dissented entirely from the reasoning and
the conclusions reached by the court.
In line with this case the court overruled
the motion for a rehearipg made by w. A.
Peelle, jr., who claims to be State Stats
tician under an election by the Legislature.
Both he and Mr.. Gorby will now go into
the lower courts and file answers to the
complaints against them. This will cause
continued proceedings and further appeal
to the Supreme Court.