Rensselaer Republican, Volume 22, Number 10, Rensselaer, Jasper County, 14 November 1889 — REMARKABLE DECISION. [ARTICLE]

REMARKABLE DECISION.

WORRELL,, COLLETT AND YANCY ENTITLED TO OFFICE In a. Decision Which Fairly Keyolutionixeg Stae Government Qf Institutions—- . Dissenting. Opinions. The Supreme Court at 2 o’clock Thursday afternoon seat down a decision that will create a sensation all over Indiana. The cases decided are thosob'roughton the relation of the State for the purpose of having the provisions of the constitution relating to the filling of minor State offices interpreted. Two cases are decided —the one in which John Worrell (Republican), as Governor Hovey’s appointee, sought possession of tha office of Chief of the Bureau of Statistics, now held by William A. Peelle (Democrat), who was appointed by the Legislature; and the one in which S. T. Yancy (Republican), sought possession of the office of State Oil Inspector, now held by Nelson A. Hyde (Democrat). The decision also determined the suits of Professor John Collett (Republican), Governor Hovey’s appointee as Chief of the Bureau of Geology and Natural Science, against S. S. Gorby (Democrat);who now holds the office by virtue of appointment by the Legislature. The effect of the decision will be to practically revolutionize the present method of filling the minor State offices. The decis ion will no doubt be widely commented upon by reason of its special import, and from the fact that Chief Justice Elliott, Republican, and Judge Mitchell, the Democratic member of the Court, dissents from the decision of Justices Olds, Berkshire and Coffey (Republicans.) In the case of tho State vs. Hyde the majority of the Court, Judges Berkshire, Cos fey an r d Olds, holds that the Legislature has no power to appoint a Goal Oil Inspector, or to authorize the State Geologist to appoint, but it is held that the judgment of the Circuit Court in favor of Hyde must be affirmed for the reason that it is not properly alleged in the complaint of Yancey that the office was vacant and that he was entitled to it. The effect of this decision of the majority is to place the appointing power in the Governor, and on new suit by Yancey ho can supply the lacking statement in his complaint and obtain a judgment giving him the office under the Government’s appointment. The opinion of the majority of the court was written by judge Berksblre;-and Is quite lerrgthy. He says, in the course of his opinion, “But the appointment to an office like the one involved here, which is in no manner connected with the discharge of legislative duties,we think involve§"the exercise of executive functions and falls within the prohibition of section 1, of article 3, of the constitution.” He quotes at length from his opinion in the case of the City of Evansville, State, and holds that the Legislature can not appoint or elect to any such offices as that of State Geologist or Coal Oil Inspector. He also says substantially, that all such offi eers are to be elected by tho people, and that the Legislature can not in any event, fill them by oppointment. Chief Justice Elliott dissents from tho conclusion that the Legislature has no power to appoint officers of a bureau or department which it has authority to establish, and denies that the Governor has any other appointing power except such as the constitution specifically confers.- —Hequotes from many authorities, and says, among other things: “Perhaps the printhan by that great constitutional lawyer whose statements as Emerson says ‘lay in daylight.’ That lawyer said the inferences which, I think, follow from those views of tho subject are two: (1) That the denomination of tno department does not fix the limits of the power conferred on It, nor even their exaot nature; and (2) (which indeed follows from the first) that in our American governments the chief executive magistrate does not necessarily and by force of his general character of supreme executive possess the appointing power. He may have it or he may not, according to the particular provisions applicable to each case, in the respective constitutions Speech on the Presidential Protest.] The Chief Justice holds, however, the act is void because it is in conflict with Section 19 of Article 4 of the Constitution, which provides that every act shall embrace but one subject.” He says: “Tho act plainly betrays its own weakness, for it declares that it covers four divisions of these; three, at least, are complete and distinct subjects, each requiringand receiving different treatment. Names go for but lit-' tie,and naming the subject’s divisions does not make them parts of one more general subject. Whether they are each subjects, or ail parts of one subject is to be determined from their essential elements, for the Legislature can not by any form of words change the nature of a thing and bj4 that course evade the constituition.” Judge Mitchell concurs in the opinion of Chief Justice Elliott, saying: “lean only record an earnest and emphatic dissent from tho judgment on the principal questions and unqualified concurrence in tho opinion of the Chief Justice.” In the case of the State vs. Pecle the majority hold that the Governor has tha power to appoint tho Chief of the Burentfc of Statistics, Chief Justice Elliott and" Judge Mitchell dissent. The majority opinion was written by Judge Olds, and , he arrives at the same conclusion in ref ' erence to the appointing -power as that reached by Judge Berkshire, but by a somewhat different line of reasoning. His reasoning is that the peoplo have the right to elect the Statistician and that upon tbs happening of a vacancy in that position the Governor has the right to fill it by appointment. Among other things, ho says: i “It seems manifest that by the change made in the constitution taking away the powel granted by the old Constitution to the General Assembly to elect State officers, and the people retaining the power to elect all of the State officers created by the new constitution, and providing and granting to no department of government the light ; to elect officers to fill the State offices which might thereafter be created by law,

that one of the principle objects in revising the constitution was to take from the legislative and executive departments of the government the election of such officers.” Judge Coffey files a separate opinion, taking substantially the same ground as that taken in the opinion of Judge Olds, j It follows from the holding of the majority that all offices must be filled by elections by the people, except in cases of a ■ vacancy, and this will certainly make a very long ticket. The practice which the majority of the court indicates to be the legal one will be a novel one in Indiana, for such officers as those in controversy, like those of trustees of benevolemtinstitutions, and the directors of the penal institutions, have not heretofore been considered as elective. Mr. A.J. Beveridge, whp argued the case for the Republican claimants, is in a joyous mood. “We won all along the line,” he said. “Worrell, the Republican claimant, who derives his title from the Governor, will immediately take possession of the Statistician’s office; Yancey (Oil Inspector) must be appointed by the Governor and not by Collett—in short, that the Governor has the right to appoint and not the Legislature. These offices are State offices, and at the next election must he chosen by the people. This case practically settles the Collett and Gorby cases.” Worrell will succeed William-A. Peelle as Chief of the Bureau of Statistics; Professor Collett takes S. S. Gorby?s place as State Geologist ; S. T. Yancey will become State Oil Inspector in place of Nelson A. Hyde, and other vacancies under the State Geologist will be filled by Professor Collett. These offices will hold only until the next general election, when their successors will be elected by the people. At the election will also have to be chosen sue cessors to all the present trustees of the State’s benevolent institutions, directors of the State prisons, etc. In regard to the cases for which the suit yas instituted the decisions at present appear to have complicated rather than simplified matters. Acting State Statistician Wininifn A HfWlln was asked by an Indian , apolis Nows reporter if he will now give over the office to Mr. WSrfell, the Governor’s appointee. “Not a bit of it,” he answered. “My position is just this: I hold a commission signed by the Governor of tho State (Gray), which authorizes me to fill this office until my successor is legally elected and qualified. The Supreme Court now decides that the election of a Chief of the Bureau of Statistics by the Legislature was illegal. The result is, I am entitled to hold the office until any successor is elected legally, which, it is now decided, must be by tho people. Governor Hovey has no more right to appoint my successor than any other man has.” “What will likely be the course pursued in the case?” “I suppose it will go back to the Circuit Court, and the Judge will be directed to reverse his former decision, which was in my favor. Then I will be required to answer why I should not surrender my office to Mr. Worrell. In that answer I will set out what I have just given as my grounds for retaining my place. Then the Judge will pass upon it again, and from liim it will be carried once more to the Supreme. Court.” Substantially the same questions will arise in the case of the State Geolegist and two members of tho Board of Health. The act creating a Bureau of Geology and National Science and naming S. S. Gorby as its Chief is declared invalid by the Supreme Court. But that does not dispose of Mr. Gorby’s hold upen his office. The act being invalid, the old office of State Geologist is still in existence, and Mr, Gorby holds u commission for that place for four years from April, 1888, signed by Governor Gray. The Legislature elected two members of the State Board of Health, and similar complications will arise in their case. All in all, the contesting aspirants for offices in dispute do not seem to be entirely successful.