The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1891-03-25

Perhaps the supreme court may have
an opportunity to make some more de-
cisions on the constitutional questions,
which his executive clemency, Governor
HoveY insists upon raising. He addressed
the following letter to Auditor Henderson,
reference to which was made in The SEN
TINEL Wednesday, delivering his legal
opinion so TO speak:
EXECUTIVE DEPARTMENT,
INDIANAPOLIS, IND, March IL, 1891.
The Hon. J. o. Henderson, Auditor of State:
SIR-You are hereby notified that the follow
ing persons pretending to be state officers. to-
wit: John Brodie, DR.. Zachariah II. Houser,
Perry II. Blue. }. j. Sm ley. w. A. Hale,
Columbus Marsh, Floyd Parks, David Holt,
John b. Stoll Joseph l.. Blaze have never been
commissioned as such officers under sec o. art
is, of the constitution OF Indiana, which reads
follows:
"a commissions shall issue in the name Of
the state, shall be signed by the governor,
sealed by the state seal and attested by the SEQ
rotary OF state"
Ali acts purporting to be official by said
parties without such commissions are abso-
lutely void and all payments made to them are
contrary to law.
ALVIN P. HovEY, Governor.
In reply Mr. Henderson informs bis
executive ciemency that besides the Sec
tons quoted in the foregoing, he has
noted other provisions in the constitution
which the governor has evidently failed
to read. Mr.. Henderson's reply is as fol-
lows:
OFFICE AUDITOR OF STATE.
INDIANAPOLIS. March Is. 1891.
The Hon. A p. Hovey, Governor OF Indiana:
SIR-Your communication of the 18th in.
slant has been received, and, in reply, permit
me 10 say that had already observed that sec.
6, art. 10 of the constitution reads as you have
quotedit. There are also several other pro.
visions OF the constitution that seem to me TO
be of public utility and general interest. One
OF these is sec. /, art. Z. in these words:
The judicial power OF the state shall be
vested ia a supreme court, in circuit courts,
aud in such other courts the general assem-
bly, may establish"
Another is Sec l, art. 8. as follows:
The powers OF the government are divided
into three separate departments: The legisls-
tive, the executlge including the sdministra-
tive. and the judicial; and no person charged
with official duties under one OF these depart
ments shall exercise any of the functions Of
another, except as in the constitution ex-
pressly provided"
While recognize fully the right Of every ex-
ecutive or administrative officer in the absence
OF judicial decision to decide on the otncial
capacity OF claimants 10 Office so far as neces.
sary to protect himself in transacting public
business with them, have not been able TO
find any constitutional provision locating
judicial power in the executive department
Until such provision is brought TO my nouce
shall be obliged to rely on the decisions Of the
courts for information on judicial questions.
Ny duty in this regard clearly pointed
out by the supreme court in the case OF the
state ex rel. Carson VS.. Harrison, lib Ind, 4S4,
these words:
"Whiie 1t is the right of the executive de-
partment to determine for its own guidance
whether or not a vacancy exists in each par.
ticulsr case, and while every intendment Is to
be INDUCED in favor of the actions of the ex-
ecutive, 1t must nevertheless be borne In mind
| that the power Of the governor to make q
valid appointment does not arise until there is
| a vacancy in fact The existing tide of an in-
| cumbent cannot be eXtinguished or Affected by
| the ex parte judgment OF the executive that the
office is vacant The authority to h,l vacancies
confers upon the governor no Judicial power.
| State We. Seay, 81 Mo-. SO.
"The final adjudication of such right is unless
otherwise specially provided By competent
authority. matter Of judicial concern, In
| respect TO which the prior aImant Is entitled
| to be heard in a forum whose proceedings are
| distinguished by the cauiiOnsry methods ap-
| propriste to the ascertainment and protection
| of personal and property rights. Page We. Har-
din, B.. Mon., 64s; Commonwealth We.
Meeser, a Pa. ST., 34l Duilam VS.. Wilson, 53
| Mich, 49,"
The same authority has decided that COM
mission from the governor, even when properly
| executed and attested. is only prima face evil
dence of the right to Office; in state ex rel
Hench VS.. Chaplin, IL Ind, 272:
I'VE need hardly say, that the fact alleged
| by the reator 10 his information herein, that
| the governor OF Indiana on the II day OF Now,
| 1884, commissioned the relator to serve as
| judge of the superior court of Allen county for
Tour years thereafter, and until his successor
should be elected and qualified does not affect
| the question stated, the proper answer
| thereto, in any degree whatever. The COVER
| nor's commission did not and could not, con-
| clusvely fix or define the REALTORS term OF Of
| fee as Judge of the superior court, but was
merely prima facie evidence OF the facts recited
| therein. Board etc, state ex rel. 81 Ind,
| 379; REYNOLDS VS.. state ex REL, Oh Ind, 392."
Unfortunately, at the present time, no one
| holds q commission signed by the governor"
| and "sttested by the secretary of state" for any
of the Offices to which the gentlemen you name
| claim title, and, therefore, have not even the
| pTifad fdcie evidence of a commission to guide
| my action. am obliged to recognize the ex
istence of the benevolent institutions OF the
state and neither my sense of duty nor my
| sentiments of humanity will permit me to Les
| their benefcent work be paralyzed by wrange
| over Offices so long rs | am assured that the
| money appropriated for the purpose by the leg
islature is applied to il by officers actually in
| charge OF the institutions, and who have fur
nished me very strong evidence that they are
entitled to be in charge As [ understand the
| decisions in Hovey vs.. Riley. 1l9 Ind, $50, and
| Hovey We. Carson. ll9 Ind. 800, the supreme
! court has decided that the legislature should
elect the trustees of the benevolent Institutions
| There is no question that the Legislature did
elect the gentlemen in question. / am reliably
| informed that you issued commissions to their
predecessors in Office elected in the same way,
under the same statute, and pursuant to the
same decisions.
regret that differences should exist now be-
| tween you and the supreme court on this sub
| ject, but under the circumstances feel bound
| TO abide by the decision OF the court and can.
| not concur in your decision that al acts pur-
| porting to be official by said parties without
| such commissions are absolutely void, and all
| payments made to them are contrary TO law"
Respectfully, j. o. HENDERSON.
Auditor of State.