The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1891-04-22
ASET-BACK FOR DIR. YANCEY
JUDGE BROWNS ADVERSE RULINGS.
The Persistent Pretendsr's Suit Receives Q
Dash OF Cold Water in n Lengthy
DeoisiOn-A uthorit Quoted
An Appeal.

The cause of that persistent pretenden
DR.. S. t. Yancey. in mis- suit against Nelson
J. Hyde to quiet the title to the Office of
state oil inspector, received a decided set
back yesterday by the opinion of Judge
Brown of the circuit court, which sus-
tanned the demurrer TO the complaint and
held that the action of the legislature in
abolishing the Office of chief of division of
mineral oils and state inspector OF oils
and empowering the state geologist to APP
point a supervisor OF oils is constitutional,
The contention of the relator was that the
law attempting TO create the Office of state
supervisor of oil inspectors was unconsti-
tutional for the reason that the subject
and matters connected Herewith are not
expressed in the title of the act; that the
subject expression in this title is the aboli-
ton of one Office and the creation Of an.
other Office, and that the law itself does
not do this-in short, that the Office is not
abolished at all, only its name is changed.
Judge Brown does not agree with this
contention and holds that the act in ques-
ton not only created new Office but had
sion was held by the relator. The Judge
also holds that the cases of state vs.. Wilt
IL Louisiana, A. NJ. 439, and Brooks VS..
Heydorn, 76 Michigan, 27S, cited by the
relator, are not In point as in these cases
the legislature undertook to create a new
Office without abolishing the old
In regard to that portion of the law
providing that the officer shall be ap.
pointed by the state geologist, which the
relator contends is unconstitutional, Judge
Brown says in his opinion:
There has been considerable legislation thu
past few years on kindred subjects and our sus
preme court has often been called upon TO set
tie the rights OF contestants for Offices created
by the legislature. The points raised were a.
TO the right OF the legislature TO abolish one
Office and create another to perform practically
the same duties, the legislature either assuming
the right to elect 10 the Office so created or to
place the appointing power in the hands Of
some of the administrative state officers, rather
than in the hands OF the governor.
After citing the opinion of Justice
Cofey in the case of the state ex rel vs..
Gorby in which it was decided that any
administrative state officer could be made
the appointing power, the opinion COM
ments as follows: cit is my duty, sitting
as a nisi prius judge, to follow the decis.
ions OF the supreme court. IL there is
QlSsenSlOn among the members OF tnat
honorable body, it is not my privilege to
Judge which is right and which is wrong,
but it is incumbent upon me to follow
the majority. Their opinion, howmuch-
soever it may be weakened by dissen-
sions, controls me-"
Judge Brown then gave further extracts
from the decision of the supreme court
and went on:
This, as 1 understand il, is the opinion of not
only the majority of the court, but the unani-
nous opinion of the court, neither Justice FL.
lott nor Justice Mitchell dissenting from this
| part of the opinion. The court in that opinion
held that the office of state geologist was an
administrative state Office affecting all the PEG.
! pie of the state OF Indiana, and in accordance
with that opinion that officer was elected by
the people a. the first general election. Being
an administrative state official the supreme
court said that the state geologist can be ems
powered TO appoint such an officer as was pro.
vided for in the act under consideration.
An appeal to the supreme court, which
YVES granted. was prayed by A. J. Bever-
idge, counsel for the pretend~r. and the
case will 90 over to the state house where
the governor will have chance 10 keep
his eve on the affairs of his protege while
the colonel smiles on gubernatorial call
arg