The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1935-07-20

law.
ext of the opinion was made
,luse, county council president,
/ announced he would confer
with Mr.. Cosgrove to discuss
future action.
A meeting of the council
may be held next week to dis
cuss revoking the transfer of $500
from the criminal court probation
account to the investigators fund"
Bakers salary is $500 year.
The council transferred the funds
upon request of Judge Baker ana
assumed it had legal authority.
Opinion Is Carefully Written
The Attorney Generals office had
been asked by Mr.. Cosgrove, ac-
counts board chief examiner, the
question:
Does the Judge of the Criminal
Court of Marion County have the
legal authority to appoint an in
vestigator of the Criminal Court?"
In a carefully written opinion 1t
was pointed out that there is no
express power conferred by statute
on Judge Baker to appoint an Off
Ger or employee known as an irl-
vestigator.
1t also points out that the 1888
probation law expressly provides
that probation officers whom the
court has the right to appoint, must
be from eligible lists established by
the State Probation Department.
Not on Eligible Lists
Joel A. Baker is not on the eligible
lists.
The opinion went deeply into the
inherent or implied power of courts
and while admitting that such pow
er is broad. pointing out that it 10
subject to legislative control so long
as the inherent power of the court
is not destroyed.
Use of this implied power is gov
erned, the opinion said, by the rule
of reasonable necessity" Pointing
out that the request for an opinion
did not cite the character of the
Investigations to be conducted by
such an investigator nor as to their
relation to the duties and jurisdic-
ton of the court, the opinion said:
There is an obvious fact uues-
ton involved in this matter which
Is not included in your question and
which prevents a categorical answer.
Likewise, the question as to what
may be reasonably necessary for the
practical and efficient operation of
the courts lawful and designated
duties, in the absence of a court de-
cision on the exact question, NAV
be open to differences of opinion. In
other words, the inherent power of
the court is more easily defined
than catalogued.
Denies Necessity Exists
However. if the duties of such in
vestigator are only those required to
be done by probation officers, who
themselves are required to make in
vestigations of all cases referred to
them and whose appointments are
expressly authorized but, when made,
are required to be from a list Of
eligibles as provided by the Acts
Of 1888. the reasonable necessity
upon which the inherent power OF
the court to appoint an investiga-
tor is based would be difficult to
sustain
THE inherent power of the
CourL arises out of necessity There
can be no necessity sufficient to
invoke the exercise of the power il
the Legislature by express enact
ment has supplied that need.
"Ir other words, / do not think
! the Court would be authorized I'M
der the theory of an implied power
or inherent power based upon 'res-
sonable necessity to substitute it
land therefore bind the county, for
an express power provided by ths
Legislature to accomplish the same
purpose"
Strong Language Is Used
In going into the implied and in
herent power of the court 70 see
that the functions of the court are
performed, the opinion used the
strong language Of the Supreme
Court in deciding a case Of courts
room repair
To hold that the judiciary is so
far independent" the opinion said.
"of the legislative department that
it may disregard and treat as nuga-
tory legislative enactments passed in
conformity with the Constitution, Is
not only to draw the whole sovereign
power of the state government into
the judiciary and thus destroy the
independence Of the other depart
ments, but it erects a despotism
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