(121 Ind. 495) STATE ex rel. WORREL v. PEELLE. 1 (Supreme Court of Indiana. Nov. 7, 1889.) CONSTITUTIONAL LAW - LEGISLATIVE POWERS private rights, can only be sustained under | and that they are also in direct antagonism the police power of the state, while the estab- with the decisions of the courts in every othlishment of a scientific bureau or department er state where like questions have been conis a subject of an essentially different nature. sidered, I can only record an earnest and emSubjects so diverse cannot be embodied in one phatic dissent from the judgment on the prinact, since to permit this would be to permit cipal questions, and an unqualified concur the evil which the provision of the constitu- rence in the opinion of the chief justice. tion quoted was designed to destroy. Railroad Co. v. Potts, 7 Ind. 681; Grubbs v. State, 24 Ind. 295; State v. Tucker, 46 Ind. 355-360; Johnston v. Spicer, 107 N. Y. 185–202, 13 N. E. Rep. 753; Leach v. People, 122 III. 420, 12 N. E. Rep. 726; Cutlip v. Sheriff, 3 W. Va. 588; Davis v. State, 7 Md. 151; State v. Harrison, 11 La. Ann. 722; State v. Heywood, 38 La. Ann. 689; People v. Mahaney, 13 ics for the collection and dissemination of informa 1. Act Ind. 1879, created a department of statist Mich. 481-490; Ballentyne v. Wickersham, tion by annual reports made to the governor and leg 75 Ala. 533-539; Payne v. Mahon, 41 N. J. islature. The governor was authorized to appoint a Law, 292; Skinner v. Wilhelm, 30 N. W. chief, who could employ assistants. The duties of the bureau were defined to be "to collect, systemize, Rep. 311; People v. Beadle, 60 Mich. 22, 26 tabulate, and present * * * information and de N. W. Rep. 800; Murphy v. State, 9 Lea, tails relating to agriculture, manufacturing, min373; Ragio v. State, 2 Pickle, 272, 6 S. W.ing, commerce, education, labor, social and sanitary Rep. 401; State v. McCann, 4 Lea, 1; San etc. Act 1883 (Elliott's Supp. § 1852) amended this condition, vital statistics, marriages and deaths, Antonio v. Gould, 34 Tex. 49. act, and made it the duty of the legislature to select the chief. In 1889 the legislature added to the showing the hours of labor, the number of laborers duties of the bureau, and required labor statistics and mechanics, their nativity, wages, savings, and STATE OFFICERS. The act plainly betrays its own weakness, for it declares that it covers four divisions, and, of these, three at least are complete and distinct subjects, each requiring and receiv-culture, and numerous other statistics, and also ing different treatment. Names go for but provided a penalty for refusing to answer ques little, and naming the subjects "divisions" tions asked by the chief and his deputy. An ap propriation from the general fund was made for does not make them mere parts of one gen- the salary of the chief and the expenses of the deeral subject. Whether they are each sub-partment, and the chief was required to transmit jects, or all mere parts of one subject, is to be determined from their essential elements; for the legislature cannot, by any mere form of words, change the nature of a thing, and by that course evade the constitution. a copy of his report to each county and state offi- 2. Const. Ind. art. 3, § 1, divides the powers of government into the three departments, and provides that no person charged with official duties under one shall exercise any of the functions of an. other, except as in the constitution expressly provided. Article 4 defines the powers of the legislature, but it is nowhere provided in what manner an officer to fill an office created by law shall be elected. The governor is expressly authorized to fill vacancies in state offices. The old constitution granted to the legislature the power to elect state officers, but by the present constitution the power of electing all state officers created by the constitution is reserved to the people. Article 15, § 1, provides that "all officers whose appointments are not otherwise provided for in this constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law." Held, that the last provision did not authorize the legislature to vest in itself the election of such a state officer as the chief of the bureau of statistics. ELLIOTT, C. J., and MITCHELL, J., dissenting. MITCHELL, J. The conclusions reached in the opinion by ELLIOTT, C. J., meet my cordial approval. Nothing can be said by me which would add force to his clear and wellsustained argument. Even if it were conceded that the legislature had no power to elect the state geologist and the statistician, it is impossible to maintain the conclusion that a vacancy occurred in those offices, or that they were vacant at the time the governor assumed the right to appoint their successors. The present incumbents were both legally appointed, and were holding their offices under legal appointment, when they were elected by the last legislature; and, if it were conceded that this last election was utterly void, then, under all the authorities, the incumbents under all the authorities, the incumbents would continue to hold under that provision of the constitution which declares that offi- 4. An information alleging facts showing the cers shall continue to hold until their suc- there was at the time a vacancy in the office; that date of relator's appointment to an office; that cessors shall have been legally elected and relator was eligible, and was duly appointed by the qualified. This provision of the constitution governor; that defendant has usurped and illegalhas been utterly disregarded. With an abid-ly held the office; and making a demand for the ofing conviction that the reasoning employed, fice,-states facts sufficient to entitle relator to be and the conclusions reached, in the opinion of the court, on all the vital questions involved, are radically unsound, and in open conflict with all the previous decisions of this court, and with the practical exposition which the constitution has received since the first organization of the state government, 3. Rev. St. 1881, § 4678, providing for a biennial general election by which all existing vacancies in office shall be filled, authorizes the people at such election to choose the chief of the bureau of statistics, and the governor may fill a vacancy in such office until the election by the people. given possession of the office. Appeal from circuit court, Marion county; LIVINGSTON HOWLAND, Judge. L. T. Michener, Atty. Gen., A. C. Harris, A. J. Beveridge, L. M. Campbell, and John H. Gillette, for appellant. Peelle & Taylor, for appellee. 1 See 24 N. E. 440. OLDS, J. The relator filed his information | to give and furnish information on blanks, to obtain possession of the office of chief of and in answer to questions relating to the the Indiana bureau of statistics, to which of-duties of the bureau. The act provided for fice he claimed to have been duly appointed the salary of the chief, and prescribed penalby the governor of the state, and for the re-ties for failure to give information. By an moval of the defendant, William A. Peelle, act passed in 1883, (Elliott's Supp. § 1852,) Jr., who, it is alleged, had usurped and ille- section 2 of the act of 1879 was amended, and gally continued to hold such office. The de- the amended section made it the duty of the fendant demurred to the information in the two houses of the general assembly, in joint court below, stating two causes of demurrer: convention, to select, at its regular biennial "First, that the complaint does not state facts session, the chief, and, in case of vacancy in sufficient to constitute a cause of action; the office by death, resignation, or dismissal, second, that the plaintiff has not legal capac- the governor should supply the vacancy by ity to sue." The court sustained the demur-appointment, and provided that the first rer, to which ruling the plaintiff excepted at the time, and elected to stand on the information as filed, whereupon the court rendered judgment for the defendant. From this judgment the plaintiff appeals, and assigns as error the ruling of the court in sustaining the demurrer to the information. election of such chief should be held on the taking effect of the act. In 1889 the legislature passed an additional act relating to such bureau of statistics, by which they impose additional duties on the chief of the bureau. Section 1 provides "that, in addition to the other duties now imposed by law on the It is contended by counsel for the appellee chief of the Indiana bureau of statistics, he that notwithstanding the relator may be en- shall collect, compile, and systemize statisttitled to the office, and the defendant has ics with reference to the subject of labor, in usurped and continues to illegally hold it, the social, educational, industrial, and general information does not state facts sufficient to condition, wages, and treatment of all classes entitle the relator to the relief asked, and that of our working people, to the end that the the demurrer was rightfully sustained. This effect of the same may be shown; and shall question we have considered, and think the in- report to the legislature, in convenient form, formation not subject to the objections urged the results of his investigations." Section 2 to it, and that it is sufficient. It alleges facts provides that "the duties of such bureau showing the date of appellant's appointment; shall be to collect in the manner hereinafter that there was at the time a vacancy in the provided, 'assort, systemize, print, and preoffice; that the relator was duly appointed by sent biennial reports to the legislature, stathe governor of the state, and that he is eli-tistical details relating to all departments of gible to the office; that the defendant had labor in this state, including the penal instiusurped and illegally held it; and a demand tutions thereof, particularly concerning the for the possession of the office. This brings hours of labor; the number of laborers and us to the consideration of the chief and lead- mechanics employed; the number of apprening questions in the case. The legislature of tices in each trade; with the nativity of such the state, in 1879, passed an act creating a laborers, mechanics, and apprentices; wages department of statistics; and the first section earned; savings from the same; the culture, of the act (Rev. St. 1881, § 5717) declared moral and mental, with age and sex, of perthe purpose of the act to be "for the collec- sons employed; the number and character of tion and dissemination of information herein-accidents; the sanitary condition of instituafter provided, by annual reports made to tions where labor is employed, as well as the the governor and legislature of the state." influence of the several kinds of labor, and The second section provided for the appoint- the use of intoxicating liquors upon the ment of a chief, and is as follows: "The gov- health and mental condition of the laborers; ernor is hereby authorized to appoint, as soon the restrictions, if any, put u on apprentices after the passage of this act as convenient, when indentured; the proportion of marand thereafter biennially, some suitable per-ried laborers and mechanics who live in son to act as chief, who shall have power to rented houses, with the average annual rentemploy such assistants as he may deem nec-al of the same to average members of the essary; and said officer and assistants shall families of married laborers and mechanics; constitute the Indiana bureau of statistics, the value of property owned by laborers or with head-quarters to be furnished by the mechanics (if foreign born) upon their arrivstate." Section 3 prescribed the duties of al in this country, and the length of time the bureau as follows: "The duties of said they have resided here; the subjects of cobureau shall be to collect, systemize, tabu- operation, strikes, or other labor difficulties, late, and present in annual reports, as here- trades-unions, and other labor organizations, inafter provided, statistical information and and their effect on labor and capital; with details relating to agriculture, manufacturing, such other matters relating to the commermining, commerce, education, labor, social cial, industrial, and sanitary condition of the and sanitary condition, vital statistics, mar- laboring classes, and permanent property of riages and deaths, and to the permanent the respective industries, of the state, as prosperity of the productive industry of the people of the state." Section 4 made it the duty of all persons, officers, and corporations such bureau may be able to gather; accompanied by such recommendation relating thereto as the bureau may deem proper. Section 3 authorizes the chief and deputy to | bureau shall make a full and complete deexamine witnesses, and gives them power to tailed report of his investigation to them, and compel persons to produce and give the infor- that he shall make such recommendations mation desired. Section 4 provides penalties with reference thereto as he may deem propfor a refusal to furnish information and an- er. We cannot agree with this theory. The swer questions asked by the chief and his first section of the act of 1879 provides that deputy. Section 5 authorizes the employ- the chief shall report both to the governor ment of a deputy by the chief at a salary of and the legislature; and that section has not $1,000 per annum, and the employment of been amended or repealed, and is still in other assistants. Section 6 appropriates force. The act of 1889 makes it the duty of $5,000 additional per annum to carry out the the chief to send one copy of his report, as provisions of the act. Section 7 allows the soon as printed, to each county and state ofchief $600 additional salary; making, in all, ficer. If we are to limit the object and pur$1,800 per annum. By section 8 it is made pose of the bureau to furnishing information the duty of the chief to transmit, immediate- to those to whom the chief is to report, or ly on publication, one copy of the biennial re-furnish copies of the report, the object is as port of the bureau to each county and state much to furnish information for the governor officer in Indiana. and the individual state and county officers It is contended on the part of the appellant of the state as to furnish information to the that the chief of the Indiana bureau of sta- legislature; for they are each and all to be tistics is a state officer; and that the law is furnished with a report, and the information unconstitutional in so far as it provides for it contains. We think the object and purthe election of such officer by the general as-pose of creating the bureau, and putting an sembly; and that the election held by the officer at its head, is much broader than that general assembly at which the appellee was elected was illegal and void, and gave the appellee no title to the office; and that there was a vacancy in such office at the time the relator was appointed, which the governor had the right to fill by appointment, which he did by the appointment of the relator, Worrel. On the other hand, it is contended by the appellee that it is a legislative office, which the general assembly had a right to fill by election, as prescribed by the law; and that although it may not be a legislative office, and is, in fact, a state office, yet the general assembly had the right to fill such office by an election, as provided for by the act of 1883; that the legislature has the right to create a state office, and provide by law that the general assembly shall elect such officer. It is admitted, and must be, that the legislature of the state may exercise appointing power, and select officers to fill the various offices which are peculiarly related to and connected with the exercise of its constitutional functions, and such as are necessary for it to appoint to maintain its independent existence; and this we think the limit of the appointing power of the legislature, unless additional has been given by the express provisions of the constitution, or acquired by construction under the rules of practical exposition. We have therefore set forth in detail the provisions of the various acts relating to the object of creating the Indiana bu-pared to direct wise legislation. When all reau of statistics, and the duties and powers of the chief of such bureau, and from such provisions we are to determine whether or not such officer is one which the legislature has the right to elect. It is contended by counsel for appellee that the object of this bureau is for the purpose of having collected and systemized such facts pertaining to labor and kindred subjects as might become important to direct the general assembly in making wise legislation, and to that end they require that the chief of such contended for by counsel for appellee. It is to gather and systemize statistical information and details relating to agriculture, manufacturing, mining, commerce, education, labor, social and sanitary condition, vital statistics, marriages and deaths, and the prosperity and productive industry of the people of the state, that all the people of the state may know the facts gathered relating to the resources of the state, the condition of its laborers, its social and sanitary condition, and as to the education and prosperity of its citizens, for the good of the people of the state, and the development of its industries, and good of its citizens. To this end the reports are required to be distributed so as to be accessible to all; and not only that it may be known by, and the information furnished to, the citizens of the state, but that the people of other states and the world may know in regard to the products of the state, and of our mining, manufacturing, and educational interests, the condition of our laborers, and our social and sanitary conditions; and to this end it provided for a liberal distribution of the reports of the chief,-that one may be placed in the hands of every state and county officer. When the people are put in possession of this information, the legislators, who are of the people, elected by and come from the people, at frequent intervals, are possessed of this information, and pre the people are possessed of this information, it is far better than if but the legislators were informed of it. If the information disclosed such a state of facts as that suggested, and required legislation, it would provoke discussion as to the proper legislation to remedy any evil which might exist within the state. Remedies would be suggested, and legislators selected whose views corresponded with the views of the majority; and thus the will of the majority of the people of the state would be expressed by a law prescribing a remedy Judge Cooley, in the same work, at page 47, says: "In considering state constitutions, we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed." Again, on the same page, he says: "It grants no rights to the people, but is the creature of their power,-the instrument of their convenience;" and again he says: "A written constitution is, in every instance, a limitation upon the powers of government in the hands of agents; for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent, and incapable of definition." On page 208 of the same work, Judge Cooley says: "It does not follow, however, that, in every case, the courts, before they can set aside a law as invalid, must be able to find in the constitution some specific inhibition which has been disregarded, or some express command which has been disobeyed. Prohibitions are only important where they are in the nature of exceptions to a general grant of power; and, if the authority to do an act has not been granted by the sovereign to its representative, it cannot be necessary to prohibit its being done." for the evil, if one existed, or the betterment | by which we mean the people composing the of the people, or development of the indus-state-may divide its sovereign powers tries of the state. among various functionaries, and each in the Fortunately, in passing upon this ques- limited sense would be sovereign in respect tion, we are not left to our own views alone to the powers confided to each, and dependent in determining the question as to whether in all other cases. Strictly speaking, in our this is a legislative office or not, with the leg-republican forms of governm nt the absolute islature claiming it as such, and the governor sovereignty of the nation is in the people of claiming that it is not; for we have evidence the nation; and the residuary sovereignty of in the law itself that the legislature which each state, not granted to any of its public enacted the first act upon the subject, cre- functionaries, is in the people of the state." ating the bureau and providing for a chief, did not regard it as a legislative office. The act of 1879 provided that the governor should appoint the chief. Therefore we think it must be conceded that the legislature creating the office did not regard it as a legislative office. If it had been so regarded by that legislature, it would have elected the officer. Certainly, the legislative department would not call upon another department of the state government to appoint or elect an officer that was within its prerogative to elect. Indeed, it seems to us that there can be no reasonable doubt on this question; for the nature of the office, the information to be gathered, is for the benefit of the whole people of the state. The duties of the office relate to and affect all the people of the state. The officer is given power to inquire into the business, the finances, and the social relations of all the people. He is given almost unlimited power to inquire into nearly all matters affecting the interests of the people, and may compel all to answer his questions, and furnish the information desired. The officer's salary is paid out of the general funds of the state, and appropriations are made from the general funds to pay the expense of gathering the information. The officer is in no way connected with the exercise of legislative functions; nor is his appointment necessary for the purpose of the legislature in maintaining its independent existence; nor has the legislature acquired the right to appoint such From these general and well settled prinofficer by a construction of the constitution, ciples laid down by Judges Cooley and Story, under the rule of practical exposition. In thus logically flows, and they inevitably and view of the object of the law, and the nature conclusively establish, the principle that beof the office, it is unquestionably a state of- fore the adoption of the constitution, and fice; and we find, upon examination of the delegating power to the various departments laws of other states, that offices of this char- of government, there existed in the sovereign acter are not regarded by the legislatures of the people of the state-all power, includother states as in any sense legislative offices, ing the right to elect their own officers and coming within the prerogative of the legisla- rulers; and unless they delegated the power ture to elect the officers. to create an office, and elect the officer, to some department of the state government, that power still rests with the people, and the right to create the office is one thing, and the right to elect the officer another; and if they have delegated power to create the office, and not to elect the officer, they (the people) still have the right to elect. It is conceded that the right to create the office is delegated to the legislature, and we need not consider that question. Having reached this conclusion, the next question for determination is the right of the legislature, under the constitution, to create a state office, and fill it by the general assembly's electing the officer. This brings us to the consideration of the power of the general assembly. This must be determined by some general principles. Judge Cooley, in his work on Constitutional Limitation, (5th Ed., p. 37,) says: "The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority." Story, in his work on the Constitution, (section 208,) says: "The state v.22N.E.no.19-42 It is denied by the appellant that the general assembly has the right to elect a state officer, and it is contended that the governor has the right to appoint, at least where there is a vacancy, and that there is a vacancy in this case. On the other hand, it is contended by the appellee that the general assembly has the right to elect a state officer, and that such power is conferred by section 1, art. 15, of the state constitution, which is as follows: "All officers whose appointments are not otherwise provided for in this constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law." If such power is conferred at all, it is by this section; and we need not consider any other section or clause of the constitution, except such as is necessary to aid in the interpretation and construction of this section. A construction has been given to this section of the constitution adversely to the theory of counsel for appellee by decisions of this court, in which a majority of the judges of the court concurred. State v. Denny, 118 Ind. 382, 21 N. E. Rep. 252; Evansville v. State, 118 Ind. 426, 21 N. E. Rep. 267; State v. Denny, 118 Ind. 449, 21 N. E. Rep. 274. ercise any of the functions of another, except as in this constitution expressly provided." By section 1, art. 4, it is declared that "the legislative authority of the state shall be vested in the general assembly, which shall consist of a senate and house of representatives;" and by section 16, same article, it is declared that "each house shall have all powers necessary for a branch of the legislative department of a free and independent state. This is all the general power granted to this department, and it is nowhere provided in what manner an officer to fill an office created by law shall be elected. The constitution, by its terms, declares and vests the executive power of the state in the governor, and it specifically authorizes the governor to fill vacancies in state offices. There is no provision in the constitution declaring by whom a state officer shall be chosen or elected to a state office created by law. It seems manifest by the change made in the constitution, taking away the power granted by the old Holding that giving the legislature power constitution to the general assembly to elect to prescribe by law the manner of electing state officers, and the people retaining the an officer does not confer the power to elect, power to elect all state officers created by the and that there is a manifest distinction be- new constitution, and providing that the tween providing the mode of doing a thing people should elect them, and granting to no and doing the thing itself, these opinions are department of government the right to elect supported by the cases of State v. Kennon, 7 officers to fill the state offices which might Ohio St. 546, and Jones v. Perry, 10 Yerg. 59. thereafter be created by law, that one of the The conclusions reached in these cases we principal objects in revising the constitution think are correct, and give the proper construc- was to take from the legislative and execution to this section of the constitution. In tive departments of the government all powthis connection, it is right to consider and er to fill state offices by the appointment or determine what is the proper method of elect-election of such officers. ing state officers, and who have the right to In the Constitutional Debates (volume 2, at elect. It will be seen by reference to the old page 138) we find Mr. Holman, who was a constitution that representatives and sena- member of the convention, saying in a speech: tors were elected by the people; also county "It will be recollected that we do not intend and township officers, and the governor and to confer upon the legislature the power of lieutenant governor, were elected by the peo-appointing. There may possibly be two or ple. All other state executive officers were three offices, the appointment to which will elected by joint vote of both houses of the be vested in the legislature;" and nowhere general assembly, as were also the president. do we find this assertion controverted. Judges of the circuit courts, and the judges also find in the address issued by that conof the supreme court were appointed by the vention to the electors of the state, setting governor, by and with the advice of the sen- forth the changes proposed, a statement that ate, and they appointed the clerk of this court. "the secretary of the state, auditor of state, Rev. St. 1843, pp. 97, 100-102. The constitu- and treasurer of state, who were elected untion also provided for the election of other offi- der the old constitution by the legislature, are cers by the vote of both houses. By the new now elective by the people.' There is also constitution the people changed the system the following statement in regard to the elecof electing state officers so as to revest in the tion of judges: "The supreme and circuit people of the state at large the right to vote judges heretofore chosen, the former by apfor and elect all administrative state officers pointment of the governor, confirmed by the provided for in the constitution, and all the senate, and the latter by joint vote of both judges and the clerk of the supreme court; houses, are by the new constitution elected and also provided for the election of the su- by the people;" and it is stated that "there perintendent of public instruction. In the is to be elected by the people a prosecuting first article and first section of the new con-attorney for each judicial circuit.' It seems stitution they declare "that all power is in- to be evident that, if the office now under herent in the people." By section 1, art. 3, they divide the powers of the government into three separate departments,-"the legislative; the executive, including the administrative; and the judicial, "-and declare and say that "no person charged with official duties under one of these departments shall ex We consideration had been created by the constitution, the mode of electing the officer would have been declared to be by election by the people. No greater reasons exist why the secretary of state or the superintendent of public instruction should be elected by the people than the office of chief of the bureau of statistics. |