The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-11-06
THE PARK LAW INVALID
THREE TO TWO, THE VOTE IN THE
SUPREME COURT AGAINST 1T.
Ffve-Year Term of the Commissioners
Held to Make the Entire Act
UncOnstitutionaI.

The Supreme Court yesterday handed
down decision declaring the law under
which indianapolis has begun the estab-
lishment of a park system unconstitutional.
The point upon which the decision turns is
that in making the terms of the park COM
missioners five years the law violated that
section of the state Constitution declaring
that the Legislature shall not create an
office of which the tenure is more than four
years. The Journal first called attention to
this defect in the law.
The opinion is written by Judge McCabe
and concurred in by Judges Howard and
Hackney. Judge Monks wrote a dissenting
opinion, concurred in by Judge Jordan. In
this dissenting opinion it is held that the
section of the law fixing the tenure of the
commissioners is not vital part of the
statute, and there is no necessity of over
throwing the whole law because this Sec
ton is invalid.
The effect of the decision is to Dust the
park commissioners and put an end for
the present to the effort to establish park
system. 1t is not believed that it will in
validate the $350OOO park bonds issued by
the city last spring. What the ultimate eff
feet will be upon such contracts for the
purchase of land as are under way remains
to be seen. The Park Board had surveyed
and undertaken to purchase about seven
hundred acres of land running from the
river bank at West Washington street al
most to the fair grounds, besides various
detached tracts such as the Dean property
and the Miller property.
1t is not likely that an effort will be
made to take the case to the United States
Supreme Court, for this would require much
more time and money than to wait until
the next session of the Legislation and have
it re-enact a law reducing the tenure of the
commissioners. However, the city will
probably ask for a re-hearing of the case
before the State Supreme Court.
The majority opinion in the case, after de-
failing the circumstances out of which the
suit grew, proceeds as follows:
1.-THE appellant brought suit against the
appelleeS, who are members of said board,
and certain other officers appointed by the
Circuit Court at the instance of said board
under the provisions of said act to enjoin
them from further acting by virtue OF any
authority conferred upon them by said act.
The Circuit Court sustained a demurrer to
the complaint for want of sufficient facts
upon which judgment was rendered in favor
Of the defendants. The ground on which
the complaint seeks an injunction is that
the act is unconstitutional.
1.-THE first reason urged for the uncpn-
stitutionality of the act is that it is an
1891, concerning the Incorporation of cities
of more than 100000 population, and does
not, as required by Section q of Article 4
of the Constitution, set forth and publish
at full length the act as revised or section
amended. But the recent case Of State VS..
Gerhardt las Ind, 439, and cases there clted
settle the law that the statute in question
was not an amendment of the act re-
ferred to.
FIVE YEAR TENURE.
"a much more serious question is pre-
sented by appellants contention that the
act violates the last clause of Section OF
Article Is of our state Constitution, pro-
viding that the General Assembly shall not
create any Office the tenure of which shall
be longer than four years 1t APP
pears from the facts stated in the complaint
and admitted by the demurrer that only
two of the present five members of the
Board of Park Commissioners have term
of office which does not exceed the constl-
tutional limit of four years. Three OF them
are serving on a five years term, under
Section of the act IL the Legislature
could not create such an office under the
Constitution, then there is no SUCH ONCE
and hence no officer. But counsel of appel
lees admitting the force of the constitutional
restriction, seeks to avoid it by contending
that the constitutional inhibition does not
apply to the offices in question here, because
the trainers of the Constitution had only IN
mind, and, therefore, only meant, the re-
striction to apply to such offices as were at
that time in existence.
''That argument proves entirely too much
If it proves anything. If the trainers of the
Constitution only meant the restriction to
apply to offices then in existence, it is fair
to say that 1t was not INTENDED 10 Apply
General Assembly shall not cr9ate any OF
fice,' etc. The creation of anything already
in existence is an impossibility. The con-
struction contended for by the appellees
would amount to a complete abrcgation of
the constitutional restriction by judicial and
legislative action. 1t would enable the Leg
isiature to enact laws providing new Of
fees in the place of all offices then in exist
ence, outside of those mentioned in the
Constitution, giving a lifetime tenure TO
each In our opinion no such intent was
entertained by the authors of the Constltu-
tioI.
commissioners are required to serve with
out compensation. Appellees' counsel does
not say that that circumstance deprives the
commissioners of their character as officers.
If it did. appellees would fail because the
act provides some compensation for them,
namely, their expenses. 1t is quite appa-
rent that compensation is not indispensable
to the existence or creation of office
within the meaning of the Constitution:
''It is next contended in avoidance of the
ton that four members Of the board were
appointed in 1895, whose term of office Will
not expire until Jan. l, 1899, and as con-
tended by appellees according to the pro-
visions of the act, are and al
ways have been, a legal board, a
majority of the board constituting a
quorum and authorized by Section 6 to
take action that is binding. We are I'M
able to perceive the force of this conten-
ton or to understand the same. If it has
any force. it must be derived from facts not
alleged in nor disclosed by the complaint
The facts are disclosed by the complaint
that in the spring of 1895, soon after the
passage of the act in question. the mayor
of Indianapolis appointed five park commits
sioners, to serve one, two, three, four and
five years, respectively. from Jan. l. 1895.
That made the term of the one-year COM
missioner expire on Jan. l. 1896, and his
successor. then appointed and now in of
the act under a term of five years, run
ming till Jan. I, 1901. The term of the two
year commissioner, appointed in 1895, ex-
pired Jan. l, 1897, when he was reappo1nted
his own successor. and is now in Office the
term of which, under Section of the act
and his reappointment is five years, expir-
ing Jan. l. 1902, and the term of the five
year commissioner. appointed in 1895, and
now in office expires Jan. /, 1900, making.
plant three of the defendants in office I'M
der a five-year term by virtue of Section 2
of the act
SECTION A VIOLATION.
"Appellees' contention that four of the
members appointed in 1905 hold four-year
terms, and therefore are and always had
been a legal board under Section 6, making
majority quorum, authorized to do bind
ing acts, is contrary to the facts alleged il
the complaint, even If that fact would con-
stitute such majority a legal board. 1t is