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next general election.

4. Rev. St. Ind., § 5152, fixed the term of office of the state inspector of oils at two years. office, and creates that of inspector of mineral oils, Acts 1889, (Elliott's Supp.,) § 1868, abolishes this and refers to the former act for his duties and emoluments. It makes no provision as to his term of office. Held, that the earlier provision still governs as to his term of office.

itors and subsequent purchasers. On page | is an executive function, except that other depart480, Judge BURNET, in delivering the opin- ments may fill such offices as are incidental to the ion of the court, says: "The intention of the performance of their own prescribed duties. ELLIOTT, C. J., and MITCHELL, J., dissenting. law-makers may be collected from the cause 2. Article 15, § 1, Const., providing that "all or necessity of the act, and statutes are some-officers whose appointments are not otherwise protimes construed contrary to the literal mean- such manner as now is, or may hereafter be, previded for in this constitution shall be chosen in ing of the words. It has been decided that scribed by law," does not give to the legislature a thing within the letter was not within the the power to appoint such officer, but only to prostatute unless within its intention. The let- vide for the manner of appointment. ELLIOTT, C. J., and MITCHELL, J., dissenting. ter is sometimes restrained, sometimes en3. As all the officers provided for in the preslarged, and sometimes the construction is ent constitution are made elective by the people, contrary to the letter." The same principle which was not the case with the old constitution, was adopted in Whitney v. Webb, 10 Ohio, and as, after the adoption of the present constitution, other state offices were created and made 513, in construing the words "beyond the elective, all offices relating to the public at large, seas" in the statute of limitations. See, also, such as that of inspector of mineral oils, are electSlater v. Cave, 3 Ohio St. 80. It is unneces-ive, and when a vacancy occurs therein the execsary to refer to all the cases in this state in utive department may fill the vacancy until the support of this principle of construction. There is, however, one other Ohio case to which I desire to refer. It is that of Sawyer v. State, 45 Ohio St. 343, 13 N. E. Rep. 84. In that case the court was required to construe the statute (84 Ohio L. 240) creating a new judicial circuit, and providing for three additional circuit judges, which it provided should be elected "on the first Tuesday of November next." The court, upon a consideration of the whole statute, in connection with the general election law of the state, rejected the language quoted, and held that the legislature must have intended the election to be held on the "first Tuesday after first Monday of November." It was contended in that case that the language was too plain to admit of construction, but an examination of the opinion of OWEN, C. J., will show the holding of the court to be in line with the best-considered cases. We hold therefore that by the established principles of construction the general words of section 3972, Rev. St., must be limited so as not to vest in a separate school-district, carved out of a township, property that had been acquired and was held for the benefit of the whole township. The judgment of the circuit court and that of the common pleas is reversed, and a judgment ordered for the plaintiff upon the undisputed facts.

(121 Ind. 20)

STATE ex rel. YANCEY v. HYDE. (Supreme Court of Indiana. Nov. 7, 1889.) CONSTITUTIONAL LAW-LEGISLATIVE POWERS.

5. A complaint in an action to obtain such office from defendant, who was appointed by one elected by the legislature to be head of the department, is bad if failing to allege that the governor of the the vacancy in said office. state had appointed and commissioned relator to

Appeal from circuit court, Marion county; LIVINGSTON HOWLAND, Judge.

L. T. Michener, Atty. Gen., A. C. Harris, A. J. Beveridge, and John H. Gillett, for appellant. J. E. McCullough, L. P. Harlan, and S. J. Peelle, for appellee.

BERKSHIRE, J. This action is brought by the appellant to obtain from the appellee, and for the relator, possession of a certain office, and the privilege to exercise the duties thereof, known and designated as "Chief of the Division of Mineral Oils." The complaint alleges the following state of facts, to-wit: That on the 9th day of May, 1889, the governor of the state of Indiana properly and lawfully appointed and commissioned one John Collett as "Director of the Department of Geology and Natural Resources of the State of Indiana;" that on the 11th day of May, 1889, the said John Collett took and subscribed the oath of said office on the back of said commission, and on said day deposited a duly-certified copy of said oath in the office 1. Const. Ind. art. 3, § 1, divides the powers of of the secretary of state of Indiana; that the government into the legislative, the executive, and said Collett possessed the requisite qualificathe judicial, and provides that "no person charged tions, etc.; that on said day the said John with official duties under one shall exercise any of Collett, as such director, etc., duly and lawthe functions of another, except as in the constitution expressly provided. " Article 4 prescribes fully appointed and commissioned the relator specifically the legislative powers. The legisla- herein chief of said division, etc., under the ture established a division of mineral oils in the name and style of "Inspector of Mineral general department of geology and natural re- Oils;" that on the 11th day of May, 1889, sources, whose object was discovering, developing, and preserving the natural resources of the state, said relator took and subscribed the oath of providing for the health and personal safety of the said office, as required by law, and on said persons engaged in developing or using the prod-day filed the same in the office of the secretary ucts, etc. The office of inspector of mineral oils was created, and its duties pertained to the state of state, and on said day executed a bond to at large, and were to be performed for the benefit the state of Indiana in the sum of $10,000, of the whole people of the state. Held, that the conditioned, etc., and that the relator was legislature could not take upon itself the appoint

ment of such officer, or delegate his appointment duly qualified, etc.; that soon after the relato a superior officer, as the appointment of officers tor's appointment and qualification he ap

pointed a suitable number of deputies, and I shall the expenditures under his direction in every way prepared himself to perform the exceed the amount authorized by the general duties of his office, and is still prepared so to assembly. The governor shall, by appointdo; that on the 28th day of February, 1889, ment, fill any vacancy that may occur in the one Sylvester S. Gorby intruded into and now office of director of the departments from any usurps and unlawfully holds and exercises cause, when the general assembly is not in the said office of director of the department session, and the person so appointed shall of geology and natural resources for the state serve as director of the department until the of Indiana by virtue of a pretended election next succeeding session of the general assemto said office by the general assembly of the bly, when a successor shall be elected by the state of Indiana at its last session; that he is general assembly; provided, however, that no unlawfully exercising and holding, and pre- such appointee shall, during such temporary tending to exercise and perform the duties of, holding, remove any of the chiefs of divisions said office; that on the 28th day of February, then serving, but may temporarily fill any 1889, said Gorby unlawfully pretended to ap- vacancies in said offices of chiefs of divisions point the defendant herein to be chief of the that may occur by reason of death, resignadivision of mineral oils, under the name and tion, or removal from the state during his title of "Inspector of Mineral Oils;" that, incumbency of said office of director. The acting under said pretended appointment, compensation of director of the department the said defendant, on said 28th day of Feb-shall be two thousand dollars per year, to be ruary, 1889, intruded into and now usurps paid as other salaries are required by law to and unlawfully holds and exercises the duties be paid." "Sec. 6. The office of state inof inspector of mineral oils, collecting fees, spector of oils is hereby abolished; and the etc.; that the defendant now is, and always chief of the division of mineral oils, who bas been, without any other claim or title to shall be known as the Inspector of Mineral said office than as above stated; that after the Oils,' shall in all respects perform all the durelator's appointment and qualification he de- ties now required by law of the state inspecmanded the possession of said office of said tor of oils, and receive therefor the same fees defendant, who refused, and still refuses, to and compensation now provided by law for surrender the same. Wherefore, etc. the state inspector of oils. His annual report In an act of the general assembly for the shall be made to the director of the departstate of Indiana, which came into force on ment, and shall be included in the published the 26th day of February, 1889, (Elliott's report of the director of the department, and Supp.,) beginning with section 1863, we find he and his assistants shall in every way comthe following provisions: "Section 1. Be it ply with the law pertaining to the inspection enacted by the general assembly of the state of oils not repealed by the provisions of this of Indiana that a department of geology and act." For the duties and compensation of natural resources is hereby established for the the inspector of mineral oils we are, by the purpose of continuing and perfecting the geo-act creating the office, referred to an act of logical and scientific survey of this state; of discovering, developing, and preserving its natural resources; recommending and securing the enforcement of laws; providing for the health and personal safety of all persons engaged in developing or using the products of its natural resources; and collecting and disseminating information concerning its agricultural, mining, and manufacturing advantages. The said department shall comprise four divisions, as follows: First, the division of geology and natural science; second, the division of mines and mining; third, the division of mineral oils; fourth, the division of natural gas. Sec. 2. The general assembly shall, immediately after the taking effect of this act, elect a competent and suitable person, skilled in geology and natural sciences, director of the department of geology and natural resources, who shall be state geologist, and curator of the museum, and chief of Having arrived at the conclusion that the the division of geology and natural sciences. office is a state office, and its incumbent a He shall take an oath of office as other offi- state officer, we are confronted with the cers, and hold his office for a term of four question: Was there a vacancy in the office years, and until his successor is elected and at the time the relator claims to have been qualified. He shall appoint the chiefs of di- appointed? This question divides itself into visions provided for in this act, and such two inquiries: First. Has the legislature other assistants as he may deem necessary in the same general power to fill that it has to prosecution of the work in the division of create offices? Second. If it has, then may geology and natural science; but in no case it create two offices, elect the incumbent to

the legislature approved September 19, 1881; beginning with section 5151, Rev. St. 1881. We do not deem it necessary to make any quotation from that act. It is sufficient to say that the duties of the inspector of mineral oils pertain to the state at large, and are to be performed for the benefit of the whole people of the state. He is not confined in the performance of his official duties to any locality or district, but his authority extends over the entire state. That he is a public functionary there can be no question. The duties which he has to perform are public duties. The act of the legislature creating the office, and defining the duties, of the incumbent, recognizes him as a public officer, and the position which he holds is an office for the benefit of the public. And, as he is an officer whose duties are co-extensive with the state, he is necessarily a state officer.

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one of them, and provide that he shall ap-|lative departments: The one determines point the incumbent to the other? Unless what the law is, and what the rights of parthe two inquiries can be answered in the ties are, with reference to transactions alaffirmative, there was a vacancy in the office ready had; the other prescribes what the law in question when the relator claims to have shall be in future cases arising under it.' been appointed, for the reason that there was Legislative power is the power to enact, a vacancy eo instanti,—the creation of the amend, or repeal laws. Railroad Co. v. office. In our state constitution we find the Geiger, 34 Ind. 197; Cooley, Const. Lim. 90; following constitutional provision, (article 3, Hawkins v. Governor, 1 Ark. 570; Way§ 1:) "The powers of the government are man v. Southard, 10 Wheat. 46; Greenough divided into three separate departments,- v. Greenough, 11 Pa. St. 494. When we the legislative; the executive, including the come to examine article 4 of the constitution, administrative; and the judicial,—and no we find that the powers and restrictions put person charged with official duties under one upon the legislative department are more of these departments shall exercise any of the specifically and definitely prescribed than are functions of another, except as in this con- those of either of the other departments.” stitution expressly provided." The word We continue the quotation: "Article 4 is "function," as here used, means "duty," composed of many sections, but they all reand the clause may be read: "And no person late to the exercise of legislative power, and charged with official duties under one of matters incidentally connected therewith. these departments shall exercise the duties Section 16 of that article reads: Each house of another, except as in this constitution ex-shall have all powers necessary for a branch pressly provided." This constitutional pro- of the legislative department of a free and vision is easily understood. It is clear and independent state.' We quote the following concise in expression. When applied to the from a very able opinion by Chief Justice question under consideration, one of two THOMPSON, found in Page v. Allen, 58 Pa. conclusions must follow, or the legislature St. 338: The expression of one thing in the was without power to elect the director of constitution is necessarily the exclusion of the department of geology and natural re-things not expressed. This I regard as essources, and therefore without power to con- pecially true of constitutional provisions defer upon him the power to appoint the appel-claratory in their nature. The remark of lee to the office in question. (1) The power Lord BACON, "that, as exceptions strengthen to appoint to office must be a legislative the force of a general law, so enumeration function; or (2) express power must be weakens as to things not enumerated," exlodged somewhere in the constitution to presses a principle of common law applicable make such appointment. We cannot give to the constitution which is always to be unour consent to the affirmative of either of derstood in its plain, untechnical sense. these propositions. Com. v. Clark, 7 Watts & S. 127.' If article The first inquiry, then, is, what is legisla-3, § 1, had never been placed in the constitutive power? We copy from the case of Evans- tion, the rule of construction as stated by ville v. State, 118 Ind., commencing on page Judge THOMPSON and Lord BACON, applied 441, 21 N. E. Rep. 272: "The word legis- to section 16 of article 4, supra, would exlative' is defined by Worcester as follows: clude the legislature from exercising any That which makes or enacts laws; law-inak-other than legislative power. But the framing; legislative power; of or pertaining to ers of the constitution were not satisfied, legislation or to a legislature, as, legislative after the experience that the people had had proceedings.' Legislative' is defined by Zell under the old constitution, to rely upon the as follows: Making, giving, or enacting well-known rules of legal construction; and laws; relating or pertaining to the passing of therefore section 1, art. 3, was placed in the laws.' Webster defines legislative' as fol- constitution, expressly confining each delows: Giving or enacting laws, as, a legis-partment to its own jurisdiction and funclative body; pertaining to the enacting of tions, except so far as expressly provided laws; suitable to laws, as, the legislative otherwise." style; done by enacting, as, a legislative act.' At this point we desire to call attention to Wharton, in his Lexicon, defines legisla- the case of Wright v. Wright, 2 Md. 429: tion' as follows: The act of giving or enact- "By the third section of the bill of rights, the ing laws. "Legislature:" The power to make inhabitants of Maryland are declared to be laws.' Abbott, in his Law Dictionary, under entitled to the common law of England; subthe head of Legislate,' has the following: ject, nevertheless, to the revision of, and To make laws. "Legislature:" The body amendment or repeal by, the legislature of of persons in the state clothed with authority this state.' And by the sixth section of the to make laws." "Legislative power:" That same instrument it is said: The legislative, one of the three great departments into which executive, and judicial powers of governthe powers of government are distributed-ment ought to be forever separate and dislegislative, executive, and judicial—which is tinct from each other.' The evident purpose concerned with enacting or establishing, and, of the declaration last quoted is to parcel out incidentally, with repealing, laws.' We find and separate the powers of government, and the following in Sinking Fund Cases, 99 U. to confide particular classes of them to particS. 700-761, speaking of the judicial and legis-ular branches of the supreme authority; that

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is to say, such of them as are judicial in their | constitution, all power was vested in the
character to the judiciary, such as are legis- people of the state. The people still retain
lative to the legislature, and such as are ex- all power, except such as they expressly dele-
ecutive in their nature to the executive. gated to the several departments of the state
Within the particular limits assigned to each, government by the adoption of the constitu-
they are supreme and uncontrollable." The tion, that the legislative, executive, and judi-
powers of the three great governmental de- ciary departments of the state have only such
partments are classified under our constitu- powers as are granted to them by the consti-
tion the same as in the Maryland constitu- tution. In the first section and first article
tion; but in ours the language is much more of the constitution it is declared that all
emphatic and explicit. Whatever may be power is inherent in the people.' It is con-
said of the constitutions of other states, it tended by counsel that as certain rights were
cannot be successfully maintained that under granted, and certain other rights reserved, by
the constitution of this state the legislature the people, therefore all rights were granted
possesses latent or undefined powers. Look- except such as were expressly reserved. The
ing to the different provisions of our consti- peculiarity of the theory is that while the
tution, any argument which can be made to people, by the constitution, made grants of
maintain the affirmative of this proposition power to three different departments of gov-
will apply equally to the other departments. ernment, it is contended that all power that
Each derives all power which it has by vir- was at that time in the grantor-the people
tue of the constitution. It must be conceded-passed to one branch of the government,
that ours is a state government, made up of viz., the political or legislative branch, and
delegated powers. To deny this is to deny that it took all power not mentioned in the
that the people are the source of power. Orig-instrument, and the executive and judiciary
inally, all power resided with the people. took only such as was expressly granted to
This proposition we have never found con- them, and the people retained such only as
tradicted by any court or writer upon ele- was specifically named and reserved. It is
mentary law. We start, then, with that prop-certainly a novel method of construction, and
osition: The people are the source of all
power. It follows, therefore, as a logical
conclusion, that until they divest themselves
of that power it continues to abide with
them.

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When the constitution of 1816 was set aside, the people thereby reserved to themselves their original power. When they adopted the present constitution, they parted with some part of that original power. The inquiry, then, arises, what became of it? They delegated legislative power to the legislature, judicial power to the judiciary, and that of an executive character to the executive of the state, with certain limitations. At the risk of extending this opinion, we must quote, again, section 1, art. 3: "The powers of the government are divided into three separate departments, the legislative, the executive, ** and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution expressly provided." This article of the constitution being the one relating to the distribution of powers between the three departments of the state government, how can it be asserted, with any regard for the rules of logic and reason, that the constitution simply imposes a limitation on the legislative department, and is at the same time but a grant as to the other departments? The correct and logical conclusion must be that the residuum of power resides with the people, and that the three governmental departments have only such power as has been delegated to them in the constitution. Any other position is illogical and inconclusive.

We take the following from the opinion in the case of State ex rel. Holt v. Denny, 21 N. E. Rep. 277: "At the adoption of the state

contrary to all the rules for construing contracts, deeds, wills, and other written instruments, and it seems to us that the proposition needs but to be stated to prove its fallacy."

That the power to appoint to office is not a legislative function it seems there can be no question. Is it an executive function? That the power to appoint to office is intrinsically an executive function has been decided over and over again, and so held by this as well as other courts. Upon this question, so long settled and well understood, there ought to be no difference of opinion, and there has been no contention to the contrary until within the last few years.

In the case of State v. Noble, 118 Ind., on page 361, 21 N. E. Rep. 248, the judge delivering the opinion said: "Counsel for the defendants refer us to the case of Taylor v. Com., 3 J. J. Marsh. 401, where it is held that the appointment to office is intrinsically an executive function. Other courts have asserted a like doctrine. Thus it was said in State v. Barbour, 53 Conn. 76, that appointments to office, by whomsoever made, are intrinsically executive acts.' But if we are to accept this doctrine as correct, and give it full application, then it would completely destroy the claim of the defendants; for, if the right to appoint can never be anything else than an executive act, the attempt of the legislature to appoint the claimants was utterly abortive. But we do not understand the authorities to assert that the selection of officers is always an executive act. On the contrary, the authorities hold that, while the power is intrinsically executive, it may be exercised by a court, or by a legislative body, as an incidental power of an independent department of the government. No one would, we con

prevents the concentration of power in the hands of one person, or one class of persons.' The language is used, substantially, in Smith v. Myers, 109 Ind. 1, 9 N. E. Rep. 692; State v. Governor, 25 N. J. Law, 331; Ex parte Dennett, 32 Me. 508; Low v. Towns, 8 Ga. 372; Mauran v. Smith, 8 R. I. 192; Hawkins v. Governor, 1 Ark. 570; Railroad Co. v. Randolph, 24 Tex. 317; People v. Bissell, 19 III. 229; Dickey v. Reed, 78 Ill. 261; Rice v. Austin, 19 Minn. 103, (Gil. 74;) Railroad Co. v. De Graff, 27 Minn. 1, 6 N. W. Rep. 341; Secombe v. Kittelson, 29 Minn. 555, 12 N. W. Rep. 519; Sill v Village of Corning, 15 N.

fidently assume, be so bold as to assert that these powers are alike elected by and responthe legislature may not appoint offices con-sible to the people, in whom resides the sovernected with its duties and proceedings; and eignty of the state. This division of power there is no more reason for denying the power to the courts than there is of denying it to the legislature. The truth is that all independent departments have some appointing power as an incident of the principal power; for without it no department can be independent. * * * We are not here dealing with the general power to appoint, but we are dealing with a simple phase of the general question; and we do no more than affirm that each department must have, and does have, some appointing power, and that, where an appointment is essential to the proper exercise of a judicial duty, the court concerned has authority to make the appoint-Y. 297; People v. Albertson, 55 N. Y. 55; ment. If this be not true, then no court can appoint a guardian, an administrator, a receiver, a referee, an appraiser, or a commissioner. It is, in truth, impossible to conceive Judicial power is the power to construe of the existence of an independent judicial and interpret the constitution and the laws, department without the power to make some and make decrees determining controversies, appointments.” The quotation which we and is vested in the courts. . The executive have made lays down the correct rule, if we power is the power to execute the laws, and understand it correctly; that is, that the is vested in the governor of the state, the adpower to appoint to office is an executive ministrative officers of the state, counties, function, but may be exercised by the legis-townships, towns, and cities. Then, to which lature or the courts as an incident of the principal power, that is, when necessary to the exercise of their legislative or judicial power. This must be so, otherwise it would be impossible for either the judicial or legislative departments to exercise the powers delegated to them.

Cooley, Const. Lim. *87, *88, *93, *114, *175. Sedg. St. & Const. Law, (2d Ed.) 132, 188, 184."

one of the departments does the appointment to office belong? If the general assembly should create an office by statute duly passed by it, providing that it should be filled by appointment, the act of filling such office is a partial execution of the law. Generally, then, the appointment to an office is an executive The following is a quotation from State ex function. It must be conceded, however, rel. Jameson v. Denny, 118 Ind., beginning that it is not every appointment to office on page 386, 21 N. E. Rep. 253: "It is claimed which involves the exercise of executive that the appointment to an office is an exec- functions; as, for instance, the appointments utive function, and that by the terms of our made by judicial officers in the discharge of constitution the general assembly is prohib- their official duties, or the appointments made ited from filling an office created by it, unless by the general assembly of officers necessary such office is connected with the duties im- to enable it to properly discharge its duties posed upon it as a legislative body. This as an independent legislative body, and the contention arises out of the provisions of like. Such appointments by the several desection 1, art. 3, of the constitution, which partments of the state government are necis as follows: [The constitutional provision essary to enable them to maintain their indeis then set out.] In the case of Wright v. pendent existence, and do not involve an enDefrees, 8 Ind. 298, it was said by this croachment upon the functions of any other. court that the powers of the three depart- branch. But the appointment to an office ments of the state are not merely equal. like the one involved here, where it is in no They are exclusive in respect to the duties manner connected with the discharge of assigned to each. They are absolutely inde- legislative duties, we think involves the expendent of each other.' In the case of Rail-ercise of executive functions, and falls withroad Co. v. Geiger, 34 Ind. 197, this court, in in the prohibition of section 1, art. 3 of the speaking of the above constitutional provis- constitution. In Evansville v. State, it was ion, says: The same division of powers exists in the federal constitution, and in most, if not all, of the state constitutions, and is essential to the maintenance of a republican form of government. These departments of government are equal, co-ordinate, and independent. The duties imposed on each are separable and distinct, and it is expressly provided that no person charged with official duties under one of these departments shall exercise any of the functions of another. The persons charged with the execution of

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said. "The power to appoint to office is not a legislative function, but belongs to the executive department of the government;" and the cases of Railroad Co. v. Geiger, supra; Hawkins v. Governor, supra; Wayman v. Southard, 10 Wheat. 1; Greenough v Greenough, 11 Pa. St. 489; and Cooley, Const. Lim. 91,-cited. See State v. Denny, 118 Ind. 449, 21 N. E. Rep. 274. In 3 Amer. & Eng. Cyclop. Law, 686, we find the following statement of the law: "The power of appointing and removing subordinate executive

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