The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1890-02-05
TITLE OF GORBY NOT GOOD
The Office He Had Is Constitutional, but
He Was Not Chosen in the Right Way.
Another Opinion of the Supreme Court That
Protects the People from the Outrageous
Acts of the Last General Assembly.

In the Supreme Court. yesterday. was
handed down the opinion of Judges Coffey,
berkshire and Olds-a majority of the
bench-relative to the case of the State ex
rel. John Collett against Sylvester S.
Gorby. In the suit was involved the right
of Gorby to hold the Office of director of the
Department of Geology and Natural Re-
sources of the State of Indiana, he claiming
under election thereto by the last General
Assembly. The ~relator. Collett was APP
pointed to the Office by Governor Hovey,
and at once brought suit in the Dearborn
Circuit Court for possession. In the
lower court Gorby's demurrer to the
complaint of the State was sustained. and
it was in the appeal on that decision that
the Judges named gave their opinion.
Chief-justice Mitchell and Judge Elliott
gave dissenting opinions.
The opinion in chief was written by
Judge Cotfey, who reviewed those that had
been given In the other cases that came in
from the legislation of the last General
Assembly. The Judge then continued as
follows:
1t win thus be seen by reference to the recent
decision OF this court upon the subject of legisla-
tive authority in the matter of the election or ap-
polntfnent TO office, and an examination OF the
grounds uDon which they rest, that there Is no
conflict, but on the contrary, that they cOnsti-
tute one harmonious whole. But, however
harmonious those decisions may be in relation
10 the power of tho Legislature to appoint 10
omce, 1t Is plain from the dissenting opinions in
the case of State ex. rel. Yancey VS.. Hyde, that
there has arisen and now exists a sharp, irrecon-
cliable conflict III the opinions of the Individual
members OF the court upon that subject, such as
may arise at any time upon any intricate, I'M
settled legal proposition. Such disagreement, as
we understand it, does not arise out OF the con-
clusion TO be drawn from any given premises,
but arises out of an effort to agree upon the
premises from which the conclusion shall be
drawn. lit were agreed that an appointment
ecutiye or an administrative function, then the
conclusion would so inevitably follow from the
language used in Section i, Article 3 of our Con-
st1tution, that the Legislature could not appoint,
except In cases where the Constitution expressly
confers such power, that the controversy would
the majority and the minority of the court have
come TO directly opposite conclusions as to the
nature of the appointing power conferred by our
regretted, as it tends to weaken the final cOnclu-
sion reached I'm this class OF cases, but no mem
Der of the court could be expected to yield his
honest convictions upon this or any other con-
sideration. The reasons for the conclusion
reached by the majority of the court upon this
question are so fully set forth in the cases of the
Evansville vs. State ex rel. Blend ct al. and the
state ex rel. Holt VS.. Denny, supra, that IL would
Dc adding unnecessarily to the length of this
opinion to restate them here.
1t Is apparent that we could not hold In this
case that the General Assembly had the power
to fill the office involved here, by its own ap-
pointment, without overruling the decisions
therein rend cred. The conclusions in those cases
were reached after a patient, careful and labor
1ous investigation and diligent study of all the
authorities bearing upon the questions involved,
and Is believed to be sound In principle. Since
handing down the opinions in those cases We
have had no new light by which we should be
guided to a different conclusion, and we know
or no reason why those cases should be over
ruled. Following the reasoning and the con-
cIuslons reached IN the cases above referred TO,
we have had no trouble in reaching the conclu-
sion in this case that the General Assembly had
no power to elect or appoint the appellee to the
Office he Is now laiming
But it Is earnestly contended that the court
erred in its conclusion that, under the COnstitu-
law for filing the office here involved by APP
pointment. 1t Is claimed that such conclusion is
in conflict with some of the provisions of the
constitution, while IL renders other provisions
meanin gless. As we understand the argument,
1t Is not denied that this office Is, in a sense, an
administrative State office, but it is commended
that, under the provisions OF Section i. Article
Is, of the Constitution, the General Assembly
has the right to create an administrative state
Office, and provide by law that such Office shall
he filled by appointment. If the contention can
be maintained that the conclusion reached by the
court In the ease of the State ex rel. Worrell VS..
Peelle and the State ex rel. Iancey VI. Hyde,
supra, Is in conflict with any provision of the
Constitution, of course, such conclusion must
fall, for it is beyond belief that the trainers of
lIdL > AulutAI 4 kuiAt vi Jill LOAl VI
ing therein conflicting or inconsistent provisions.
30, IL 1t can be shown that such conclusion rem
t fesS G %eanfngiess r. s mnst fsiI for OF If te cannot b q
maintained that any word IN an instrument OF so
much Importance as this was not to have apotent
meaning. There may well exist a differ
ence of opinion as to the proper meaning to be
given to some of the words or sentences there
found, owing to the imperfections OF our Ian
guage, but there should be no dispute as to the
fact that some meaning is to be attached to each
and every word found therein, and we are not at
liberty to attach to any word there found q
meaning that will conflict with any other word
or sentence or the wellknown intent of the franz
ers of the Constitution. The only provision of
the Constitution pointed out by counsel, which
is supposed to be in conflict with the conclusion
reached by the court in the cases above cited, is
found i'm Section 1, article 10 OF the Constitution.
section the General Assembly has the power to
prescribe the mode by which all statutory offices
shall be filled. That section is as follows: All
officers whose appointments are not otherwise
provided for in this Constitution shall be chosen
In such manner as now Is. or as hereafter may be.
prescribed by law"
Is not to receive a construction as broad as its
terms would indicate. No provision is made in
the Constitution for the appointment of Gov
ernor, ACKNOWLEDGEMENTS, Secretary, Auditor
and Treasurer of State, and yet 1t cannot be
maintained that the General Assembly has the
power to prescribe by law the manner in which
thew shall be chosen, for the Consultation pro
vides that they shall be elected by the people. 1t
Is plain, therefore, that the section does not APP
ply 10 iii OhhCers lOr WnOso appoiutlutul 10 prO-
vision is made, as it in terms declares. 1t is safe
to assume. then, that Ii has no application to
such officers as are. by the terms Of the Constitu-
ton, to be elected by the people. At least, ii Is
perfectly plain that Ii had no application 10 any
administrative State Office In existence at the
time of its adoption, for, by the terms of the
Constitution, OF which Ii is q part, all such otfi-
GERS are made elective by the people.
This section does apply to most OF the statu-
tory State offices. Under its provisions the Gen.
eral Assembly has created the office of Mine In
spector. Oil Inspector, trustees of the new beuevO.
| lent institutions. State prisons, mi in
situations, state Board OF Health. State Board of
the incunibents of such offices appointive. as il
had the undoubted power to do. In the creation
OF these and kindred offices Ii 10 within the power
of the General Assembly TO provide by law that
such office may be filled either by election or by
appointment, and when to be filed by appoint
ment. 1t need not provide that such appoint
ments shall be made by the Governor. such ap
pointments, If the law so provides, could doubt
less he made by the Governor of the State. or by
any one or more of the administrative State Of
ficers. We are not aware that o differ
| ent doctrine has ever been advanced
or advocated by any one. The con.
tention has always been, as we understand
an Office, and reserve TO itself the power TO I'LL IL
that It has not the power TO both make and exc
| cute the law. II the Office now under consdera
ton falls within the provisions OF this section OF
| the Constitution there can be no doubt as to the
| power of the General Assembly to provide that
It may be filled by appointment; and that leads
us back to the question as TO whether that sec
ton has any application TO an administrative
State office. II a proposed construction of a
statute, or OF y constitutional provision, when
| carried 10 its legal and logical consequences
leads to results which could not have been