The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-11-06

raised by their contention shall be decided
for against them. But it furnishes a basis
for reasoning out the question against APP
pellees. 1t is to be observed that it is not the
tenure of more than four years that is pro-
hibited, but it is the creation of an office
the tenure of which shall be longer than
four years The forbidden act is the crea-
ton of the office of the particular descrip-
ton given, as much as the inhibition OF
seem. therefore, that it is the creation of
the office that is void, as much, if not more,
than the act of aftiXing q tenure of more
than four years. If the Language were: No
office created by the Legislature shall have
a longer tenure than four years, we should
have very different question to decide.
A KANSAS CASE.
Our attention has been called to a de-
csion of the Supreme Court of Kansas upon
a constitutional provision precisely like our
own, wherein it is claimed a different con-
clusion was reached by that court. Oewis
VS.. Lewelling, So Kan, 201.) The report of
the case is so meager that it is not easy to
understand the reason, if there was any
reason, for the conclusion Indicated The
only reason assigned for the conclusion
reached is the decision of the Supreme
Court of California cited. The whole of what
the Supreme Court of Kansas said upon
that branch of the case is as follows: The
provision in Section 4, permitting officers to
be commissioned for a term of five years
is violative of Section 2, Article 10, forbid
ding the Legislature to create any office the
term of which is longer than four years.
Military officers are within the provisions OF
the Constitution. Where the statute fixes
term of office at such a length of time
that it is unconstitutional, the tenure thereof
is slot declared, and therefore, the office is
held during the pleasure of the appointing
power. People VS.. Perry IS Cal, lO0.
mo reason is assigned by the Kansas
Supreme Court why the constitutional inhi-
bition forbidding the Kansas Legislature to
70 nfff Hoo ncrfn in n n
render the forbidden act void. The forbid
den act there as here, was the creation of
the office, in plain language, of unmistak-
THAT great jurist, Judge Cooley in his
constitutional limitations, with great clear
ness and force, states the rule for constru-
ing the language of constitution at
Pages So and 20 thus:
The object of construction, as applied
to a written constitution. is to give effect
to the intent of the r,eople in adopting 1t.
In the case of all written laws, 1t is the
intent of the law-giver that is to be en-
forced But this intent is to be found in the
instrument itself. 1t is to be presumed that
language has been employed with sufficient
precision to convey 1t, and, unless examina-
ton demonstrates that the presumption
does not hold good in the particular case,
nothing will remain except to enforce it.
When a law is plain and unambiguouS,
whether it be expressed in general or linn
tied terms the Legislature should be in
tended to mean what they have plainly ex-
pressed, and, consequently, no room is left
meanings, when one is plainly declared in
the instrument itself, the courts are not at
liberty to search for elsewhere. Whether
we are considering an agreement between
parties, statute, or constitution, with a
view to its Interpretation, the thing we are
to seek is the thought which it expresses.
To ascertain this, the first resort in all
cases Is the natural significance of the
words employed, in the order of grammat-
ical arrangement in which the trainers of
the instrument have placed them. If thus
regarded, the words embody q definite
meaning, which involves no absurdity and
no contradiction between different parts of
the same writing, then that meaning ap-
parent on the face of the instrument, is
the one which alone we are at liberty to
say was intended to be conveyed. In such
a case there is no room for construction.
That which the words declare is the mean
ing of the instrument, and neither the
court nor Legislatures have a right to add
to or take away from that meaning
The Constitution, like our own in this
particular, contains no contradiction of the
plain meaning of the words employed, and
such meaning involves no absurdity, and
hence By this salutary rule, the language
ought to be given its full force and mean
ing.
"As the Kansas Supreme Court gave no
reason why such language should not be
given it's full force and meaning, except
to cite the California case, we must assume
that the reasoning in that case is the only
reason on which the Kansas court reached
its conclusion. But when we examine the
case we find that it furnishes no reason
whatever for the Kansas decision on ac-
count of the radical difference in the con-
stitutional provisions of California and
Kansas The provision it stood in both
the old and new constitutions of California
received the consideration of the California
Supreme Court in that case. That in the
old reads thus: Nor shall the duration of
any office not fixed by the Constitution ever
exceed four years and in the new Consti-
tuition 1T was: But in no case shall such
term exceed four years. This language in
no way forbids the creation of the office
with tenure exceeding four years, but
in0if hn fcn Of oil off
ated by the Legislature to four years. If
the act was forbidden then it was in so far
as as II created the office, in violation of the
Kansas decision is in plain violation OF the
Constitution of that State. and rests on no
reason whatever Such decision we ought
not and cannot follow.
"It would seem to follow that so much
Of Sections and of said act creates
the office of park commissioner, with
tenure of five years. is in violation of the
Constitution and void. All the balance or
the act is imperative for the sole reason
that there are no Observation-Disclosures left
with which to carry them into operation
and effect.
1T results that the defendants are doing
acts affecting the plaintiffs rights that they
have no authority of law to do, because
there is no such office, the duties of which
they claim to be exercising. Hence, the
complaint stated good cause of action,
and the Circuit Court erred in sustaining
demurrer thereto. The judgment is re-
yersed, with instructions to overrule the
consistent with this act.''
THE DISSENTING OPINION
The dissenting opinion, written by Judge
Monks and concurred in by Judge Jordan
admits the unconstitutionality of that Sec
ton of the law defining the tenure of the
commissioners, but continues as follows:
1T is equally clear, l think, that the pur-
pose or said section was to prohibit the
Legislature from fixing the tenure of an
Office created by that body at a longer peri
cd than four years. The duration or tenure
or Office, and not the creation of the office
by the Legislature, is the subject of said
section. Fixing the tenure of office at more
than four years is prohibited by said sec
ton, but not the creation of the office.
In Lewis VS.. Leweling, So Kan, 201, the
Legislature had passed an act providing for
the organization and government of the mi
litia of the State, and creating and fixing
the tenure of office of certain military Off
GERS at five years. Sec. g Art. Is, of the
the same as Sec. 2, Art. Is, of the Consti-
tuition of this State. The court held not
that the creation of the office was uncon-
stitutional but that fixing the tenure of
office at more than four years was uncon-
stitutional. 1t is evident that Sec
2 of the act in controversy, so far as it fixes
the tenure of office of the members of said
Park Board at four years, is unconstitu-
tional.
1T is settled however, by long and UNI
broken line of decisions in this State, that
il the unconstitutional portions of a statute
can be stricken out and still leave COM
plete statute, the unconstitutional portions
must be regarded as eliminated and the
remainder of the statute must be enforced"
In support of this statement the judge sets
out many citations.
THE legislative purpose in passing the act
in controversy was to create a park system