The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-06-14
NOT A SINGLE DOUBT
SUPREME Court UPHOLDs THE NEW
PRISON BOARDS LAW.
Opinion Unanimous - Ex-Governor's
Contentious Opposed I'm Every Par
ticular by the Full Bench.

me supreme court yesterday Upheld the
new law placing the power of appointing
prison directors in board composed OF
State officers. the court unanimously declar-
Ing against the stand taken by Governor
Matthews The opinion concludes in the
following emphatic language: With our
present conviction. that there Is not even
a doubt of the validity OF the statute in
question. We nave but one duty and privi-
lege and that is to uphold the law. The
judgment OF the Circuit Court is affirmed"
The case was test one and was brought
to the early notice of the court by agree
Ement of the attorneys for the Governor
and those for the board OF State officers
in whom the late Legislature invested the
power OF appointing directors for the north
ern and southern prisons. An information
TO GUST Warden French from the northern
prison was fled in the Circuit Court OF
Lake county by Charley Harley, the war
den appointed 10y the board of State Off
GERS. French made answer and
Harvey filed a demurrer 10 the an
swer and on the demurrer the case reached
the Supreme Court. the lower court hav-
ing sustained the demurrer. After review
ing the history of the case and quoting
the act of 1895 in controversy, the court
says:
The principal contention of the appel
lants learned counsel is that under the
Constitution, Sec. 1. Article ), the execu-
tive powers OF the State are vested i'm
the Governor; that appointment 10 office
is an executive function and that the
Constitution does not, expressly or by i'm
plioation. deny the exercise of this func-
ton TO the Governor. If this power were
so lodged. in violation of the con-
stitutional authority of the Govern
or, IL is insisted. and follows of
necessity. the appointment of directors.
lator. was invalid. The constitutional pro-
visions upon which the issue rest in adj
dition to that vesting the executive power
OF the state in the Governor, are as fol-
lows: The powers of the government are
divided into three separate departments
the legislative, the executive. including the
administrative, and the judcal, and no per-
son charged with official duties under one
or the departments shall exercise any of
the functions of another except as in this
Article 3. All officers whose appointments
are not otherwise provided for in this Con-
stitution. shall be chosen in such manner
as now is, or hereafter may be, prescribed
by law. (Sec. 1, Article 15.)
I'm ascertaining the intentions expressed
in these sections il will be necessary to
examine other sections which will be set
forth hereafter. Our first inquiry is di-
rected TO the question. was it intended
ernor all appointing power? This inquiry
need not be extended to the appointment
OF local administrative officers nor to ju-
dicfal officers, nor 10 the mere agencies by
their separate duties and functions, since
that would carry our investigation over
unnecessary and undisputed grounds. Our
method of answering general inquiry is
to ascertain if, by the Constitution, it were
intended to give the power of appointment,
i'm any instance, to the legislative branch
or the government
The opinion then quotes Sec. IS, Article
;. and Sec. 80. Article T. Of the Consttu-
some Offices should be filed by the Cen
eral Assembly but what ones are not
specifically stated in the Constitution. The
opinion then continues:
APPELLANTS ABSURD CONCLUSION.
I'VE find in the Constitution no other pro-
vision to which the two provisions last
quoted could have been directed. excepting
that found in Section /, Article ID. Without
having been directed TO some other pro-
vision supplying the offices to be filled by
the General Assembly, there is but one OF
two possible contingencies TO be accepted
the Constitution is framed in meaningless
and confused language. or the words of Sec
ton is. Article 5. the appointment to which
is vested in the General Assembly and
probably the same words from Section 80
Article 4, had reference to the Officers
whose appointments are not otherwise pro-
vided for in the Constitution Section l.
Article 49, 1t is insisted. however, that
Section l, Article 10, does not give the
power to the General Assembly TO appoint
and that the section simply confers the
power upon the Legislature TO provide the
manner of appointments and not make the
appointments. The consistency of appel
lant's position requires the conclusion that
all power to appoint TO office is in the
Governor; that the Legislature possesses
only the power 10 provide the manner of
appointments. and that such manner is linn
tied to a provision that the Governor shall
make It, Ii would seem to have been re.
markable conception OF a constitutional
Legislature shall prescribe by whom APP
pointments shall be made. but II shall be
tbem This 'n conception If written in the
Constitution. would be no more absurd than
to have written IT in part and left IT in part
to what the appellant insists is a necessary
implication. This remarkable theory does
not relieve US of the embarrassment OF find
ing repeatedly the expr,essiions OF the con,
are offices the appointments TO which Is
vested in the General Assembly. Such a
theory would strike these words from the
Constitution. or would render them bare
and meaningless. .
I'VE need not ascertain and define the
limits and extent OF the appointing power
of the Governor, nor is II necessary that
we shall take issue with the cases holding
that the appointing power is naturally and
properly an executive function. If the. Con-
stitution has conferred upon me leglslauVe
department of the government iunctlons
another. il is not for us to say tnat the
people could not have done 50. nor mat the
unWisdom of doing so will permit us TO as
sign 10 the proper departments their proper
functions and thereby do correctly for the
people that which the trainers OF the Con-
stitution did enormously.
.'It is insisted that the former decisions
OF this court deny the power; unaer inc
Constitution. of the General Assembly 10
appolnt TO office and declare the power 10
appoint as existing in the Governor ~
dozen cases are quoted in the decision.) 1t
is true that with sharp conflict OF opinion
these cases hold to the proposition that the
power TO appoint is an executive junction.
with this conclusion, as We have SAID, We
have no present duty TO agree or to dis
agree. further than TO maintain that III this
conclusion is true il could not prevent the
people from making such distribution OF
thai mower as TO them seemed wise or de-
sirable. If this position is at variance with
the holding OF these cases, be II so; out
further as TO these cases IL was said IN
one OF them that the Hyde case and the
Peelie case were decided upon the question
of the power TO appoint officers made by the
Constitution elected by the people. This
theory of those TWO cases, We think. was
correctly announced by the members OF the
court joining in the majority opinion IN the
cases.
The opinion then goes on TO show the diff
ferences between the questions involved in
the present case and those cited by the APP
peIIants counsel. showing that in the pres
ent case 1t is not a question of whether
making appointments is an executive func-
ton but rather OF a construction OF the
Constitution as 10 It's provisions for ap