Tucker v. State , 218 Ind. 614 ( 1941 )

DISSENTING OPINION By this dissent I express no approval of the governmental policy of the statutes in question nor of the statutes sought thereby to be repealed or amended. My only concern is the purely legal question of validity under the Constitution. In this inquiry I disagree with the other judges on basic principles which permit no compromise. My position will be first stated and then I shall discuss as briefly as possible the major premises upon which the majority take their stand.

In the years following the election of Governor Hovey the judges of this court in many cases and from many angles debated the question of the appointing power under the Constitution. The issue upon which the judges never agreed was whether the Legislature could create an office and itself fill that office. That question was settled in the negative with Judges Elliott and Mitchell dissenting. In one of those dissenting opinions, Stateex rel. Yancey v. Hyde (1889), 121 Ind. 41, 22 N.E. 644, Judge Elliott said:

"I have searched with all possible care, but I can find no decision which sustains the contention of the relator, that the appointing power resides in the Governor."

The present issue is not whether the Legislature may appoint the officers, but whether the appointing power may be given to boards in the "Executive-Administrative" department of the government, over the Governor's claim of interference with his prerogative. On that issue "I can find no decision which sustains the contention . . . that the appointing power resides in the Governor."

Our Constitution has had almost ninety years of judicial and legislative interpretation. This I cannot disregard. "The oath of the judiciary is to construe the constitution as it is, and not as it might have been." State ex rel. Withycombe v. Stannard (1917), 84 Or. 450, 165 P. 571.

In French v. State ex rel. Harley (1895), 141 Ind. 618, 41 N.E. 2, 29 L.R.A. 113, this court decided the principal issue which is now before us. The sole question then presented by the parties was succinctly stated in appellee's brief therein:

"Has the General Assembly the power under the Constitution of the State to impose upon a Board composed of executive and administrative State officers the duty of selecting an administrative State official, notwithstanding the contention of the Governor, that the power of appointment is a constitutional prerogative of the Governor, of which he can not be deprived by an act of the Legislature."

The answer then was in the affirmative and should be now. Every substantial argument herein made to the contrary was made in the briefs filed by Mr. French. The decision then was in harmony with judicial dicta and legislative practical exposition from 1852 until 1895. Almost fifty years have since passed with no judicial decision nor dictum casting any doubt upon the views then held. During that time the Legislature has continued its practical exposition in harmony with the court's decision. If, upon consideration of abstract principles of governmental functions a different opinion could have been reached, I think it is now too late for we must take the Constitution "as it is, not as it might have been."

If the French decision, supra, might have been put solely on other ground, the fact remains that it was not. The issue was clearly stated, as above, ably briefed and decided. I do not believe that the majority opinion gives a fair interpretation of its holding. On that score, however, the case must speak for itself.

The substantial argument against the decision is: Article 3, Section 1 separates the powers; Article 5, Section 1 grants all executive power to the Governor; appointment to office is an executive function; therefore all power of appointment is in the Governor. It must be so because otherwise the Governor could not "take care that the laws be faithfully executed." So French contended and was ruled against.

We now have two additional contentions, one, that the authority to sign commissions, conferred by Article 15, Section 6, implies the power to appoint all those who shall be commissioned and, the other, that the reasoning of the majority in Myers v. UnitedStates (1926), 272 U.S. 52, 71 L.Ed. 160, 47 S.Ct. 21, and their construction of the Constitution of the United States, upon which ours was patterned, is a binding analogy.

But Mr. Justice Holmes in his inimitable way then said, dissenting, (page 191 of 71 L.Ed.):

"My brothers McReynolds and Brandeis have discussed the question before us with exhaustive research and I say a few words merely to emphasize my agreement with their conclusion.

"The arguments drawn from the executive power of the President, and from his duty to appoint officers of the United States (when Congress does not vest the appointment elsewhere), to take care that the laws be faithfully executed, and to commission all officers of the United States, seem to me spiders' webs inadequate to control the dominant facts.

"We have to deal with an office that owes its existence to Congress and that Congress may abolish tomorrow. Its duration and the pay attached to it while it lasts depend on Congress alone. Congress alone confers on the President the power to appoint to it and at any time may transfer the power to other hands. With such power over its own creation, I have no more trouble in believing that Congress has power to prescribe a term of life for it free from any interference than I have in accepting the undoubted power of Congress to decree its end. I have equally little trouble in accepting its power to prolong the tenure of an incumbent until Congress or the Senate shall have assented to his removal. The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power."

And nine years later, in Humphrey's Executor v. UnitedStates (1935), 295 U.S. 602, 79 L.Ed. 1611, 55 S.Ct. 869, the whole court agreed that all the dicta of Chief Justice Taft of the majority and Justices Brandeis and McReynolds of the minority meant nothing beyond the narrow decision that a "purely executive" officer appointed by the President with the consent of the Senate might be removed by the President without regard to the congressional will. The court further said, (79 L.Ed. 1619):

"The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute, in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body can not in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. In administering the provisions of the statute in respect of `unfair methods of competition' — that is to say in filling in and administering the details embodied by the general standard — the commission acts in part quasi-legislatively and in part quasi-judicially. In making investigations and reports thereon for the information of Congress under § 6, in aid of the legislative power it acts as a legislative agency. Under § 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function — as distinguished from executive power in the constitutional sense — it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial department of the government."

If there is any analogy by which we are controlled it is found in the holding that over the objection of the Congress Mr. Humphrey could not by the President be removed from the Federal Trade Commission because he was not a "purely executive" officer. If we desired, our decision might be put on just this ground, that there are no "purely executive" officers to be appointed under the laws in question, so that the legislative will may be interposed against the claim of executive prerogative.

Not one of the boards or commissions whose personnel is involved, is purely executive in its character. All are listed in § 6, § 7, § 8 and § 9 of Ch. 13, Acts of 1941, except of course the Attorney General's office and the Board of Education. They may be classified, so as generally to indicate their functions, as follows:

1. Boards regulating businesses, trades, professions and industries created by statutes enacted in the exercise of the police power. Most, if not all of them, are in aid of regulatory legislation. They have fact finding powers and make some decisions. They include Board of Registration for Architects, § 63-102, Burns' 1933, § 3958, Baldwin's 1934; State Board of Barber Examiners, Acts 1941, ch. 77, p. 192, § 63-342, Burns' 1933 Supp., § 4082-15, Baldwin's Supp. 1941; State Board of Beauty Culturist Examiners, § 63-1801, Burns' 1933 (Supp.), § 4083-1, Baldwin's Supp. 1935; State Board of Dental Examiners, § 63-501, Burns' 1933, § 5586, Baldwin's 1934; State Board of Embalmers and Funeral Directors, § 63-701, Burns' 1933, § 7458, Baldwin's 1934; State Board of Registration for Professional Engineers and Land Surveyors, § 63-1517, Burns' 1933 (Supp.), § 7489-1, Baldwin's Supp. 1935; State Board of Medical Registration and Examination, § 63-1301, Burns' 1933, § 10703, Baldwin's 1934; Indiana State Board of Examination and Registration of Nurses, § 63-901, Burns' 1933, § 13031, Baldwin's 1934; Indiana State Board of Registration and Examination in Optometry, § 63-1001, Burns' 1933, § 13169, Baldwin's 1934; Board of Podiatry Examiners, § 63-1401, Burns' 1933, § 13309, Baldwin's 1934; State Live Stock Commission, § 42-910, Burns' 1940 Replacement, § 3923-1, Baldwin's Supp. 1935; Indiana Board of Pharmacy, § 63-1101, Burns' 1933, § 13275, Baldwin's 1934; Indiana State Board of Examiners in Watch Repairing, § 63-2301, Burns' 1933 (Supp.), § 10498-1, Baldwin's Supp. 1939; Veterinary Examining Board, § 63-1701, Burns' 1933, § 3943, Baldwin's 1934; Stallion Enrollment Board, § 16-901, Burns' 1933, § 3784, Baldwin's 1934; Department of Insurance, § 39-3301, Burns' 1940 Replacement, § 9495-1, Baldwin's Supp. 1935; Chief Oil Inspector, § 35-2117, Burns' 1933 (Supp.), § 9401-1, Baldwin's Supp. 1937 and 1941; State Athletic Commission, § 63-201, Burns' 1933, § 3985, Baldwin's 1934; State Board of Certified Accountants of Indiana, § 63-401, Burns' 1933, § 3504, Baldwin's 1934; The Department of Financial Institutions, § 18-201, Burns' 1933, § 7726, Baldwin's 1934; Division of Labor, including Industrial Board, Bureau of Mines and Mining, Bureau of Factory Inspection, Bureau of Boiler Inspection, and Bureau of Women and Children, § 40-2102, Burns' 1940 Replacement § 10000-2, Baldwin's Supp. 1937; State Livestock Sanitary Board, § 16-501, Burns' 1933, § 3924, Baldwin's 1934; Pollution Hearing Board, § 68-501, Burns' 1933 (Supp.), § 8424-1, Baldwin's Supp. 1935; and Public Service Commission of Indiana, § 54-101, Burns' 1933, § 13906, Baldwin's 1934.

2. Boards having to do with the making, publishing, and keeping of public records. They include Indiana Library and Historical Department, including State Library and Historical Bureau, § 63-802, Burns' 1933, § 10259, Baldwin's 1934; Commission on Public Records, § 63-1901, Burns' 1933 (Supp.), § 5400-1, Baldwin's Supp. 1935; The Indiana Year Book, § 60-1001, Burns' 1933, § 15436, Baldwin's 1934.

3. Boards concerned with taxation: Gross Income Tax, including Director, § 64-2628, Burns' 1933, § 16008, Baldwin's 1934; Motor Vehicle Fuel Tax, § 47-1501, Burns' 1940 Replacement, § 16024, Baldwin's 1934; Inheritance Tax Administrator, § 6-2432, Burns' 1933, § 15970, Baldwin's 1934; State Board of Tax Commissioners, § 64-1301, Burns' 1933, § 15705, Baldwin's 1934.

4. Boards conserving and regulating the use of public property including Department of Conservation, § 60-701, Burns' 1933, § 4815, Baldwin's 1934; State Highway Commission, § 36-101, Burns' 1933, § 8640, Baldwin's 1934; Board of Public Buildings and Property, § 49-2401, Burns' 1933, § 15401, Baldwin's 1934; New Harmony Memorial Commission, § 63-2201, Burns' 1933 (Supp.), § 10848-8, Baldwin's Supp. 1939; The Indiana Board of Public Harbors and Terminals, § 68-701, Burns' 1933 (Supp.), § 16310, Baldwin's Supp. 1939.

5. The Legislative Bureau, § 63-837, Burns' 1933 (Supp.), § 14946-1, Baldwin's Supp. 1939; and State Budget Committee, § 60-401, Burns' 1933, § 15096, Baldwin's 1934, which are in aid of legislative duties, the latter with reference to taxation.

6. Agencies handling trust or state funds: The Indiana State Teachers' Retirement Fund, § 28-4501, Burns' 1933, § 6729, Baldwin's 1934; Board for Depositories, § 61-643, Burns' 1933 (Supp.), § 13844-64, Baldwin's Supp. 1937; and Municipal Loan Board, § 61-1101, Burns' 1933 (Supp.), § 12504, Baldwin's Supp. 1937.

7. Miscellaneous boards: Administration of Motor Vehicle Laws on Registration, Certificates of title, and Operators' and Chauffers' Licenses, § 47-1801, Burns' 1940 Replacement, § 11189-11, Baldwin's Supp. 1939, which could go either in paragraph 1 or 3, supra, State Board of (Election) Canvassers, § 29-525, Burns' 1933, § 7211, Baldwin's 1934; Commission on Interstate Cooperation, § 63-2101, Burns' 1933 (Supp.), § 10226, Baldwin's Supp. 1937, which determines and exercises the public policy of this state with regard to its relations with other states; Division of State Publicity, § 60-1201, Burns' 1933 (Supp.), § 14990-1, Baldwin's Supp. 1939, which is an advertising agency; Central Purchase Bureau of Indiana, § 60-601, Burns' 1933, § 15179, Baldwin's 1934, which purchases supplies for all departments of government; and State Board of Health, § 35-101, Burns' 1933, § 8386, Baldwin's 1934, whose functions are well known to be in the exercise of the police power.

It would unduly extend this opinion to develop the reasons why I think many of these agencies are more closely related to the legislative, and some more to the judicial, than the executive department of the government. The Industrial Board and Public Service Commission are not so unlike the Federal Trade Commission as to be beyond the scope of the holding in the Humphrey case, supra. Of another Highway Commission it was said: "We are of the opinion that the State Highway Department is a legislative rather than an executive instrumentality, and consequently in the regulation of that Department we perceive no invasion of the executive prerogatives." State ex rel. Morford, Atty. Genl. v. Emersonet al. (1939), Super. Ct. Del., 10 A.2d 515, 523, Aff'd 14 A.2d 378. It is recognized also that the taxing function is peculiarly legislative. State Board of Tax Commissioners v.Holliday (1898), 150 Ind. 216, 49 N.E. 14, 42 L.R.A. 826. The boards having to do with the safe keeping and disbursement of public funds, after they have been raised by taxation, are clearly within the province of the Treasurer of State, certainly not a primary concern of the Governor. And one fund particularly, the Teachers' Retirement Fund, is an independent trust that might like other trusts more properly be under the supervision of a court than the executive branch of the government.

The majority say that "the creation of the offices is a legislative function." With this I agree. It is also a legislative function to determine the qualifications of the officers and by whom they shall be appointed. The act of appointment only is executive. If there be any force in the views of the court in the Humphrey case, supra, it seems that such appointment is the exercise of an "executive function — as distinguished from executive power in the constitutional sense" and that in such capacity the appointing board acts as "an agency of the legislative or judicial department of the government" depending upon whether or not the particular administrative board or commission is charged with the exercise of quasi-legislative or quasi-judicial powers. If this be true the appointing board can in no sense be said to be exercising purely executive power.

Without pursuing this subject further I return to the consideration of appellees' argument which is further based on the constitutional provision that all commissions shall be in the name of the state "and signed by the governor." Article 15, Section 6. This does not require that every officer shall be commissioned, nor make title to an office depend upon a commission, Shuck v. State ex rel. Cope (1893), 136 Ind. 63, 70, 35 N.E. 993; Russell v. State ex rel. (1909),171 Ind. 623, 634, 87 N.E. 13. In State ex rel. Cornwell v. Allen (1863), 21 Ind. 516, 521, is a remark, "that, it is probably the law that where the title to an office is solely derived from Executive appointment, the commission of the Executive is the only legal evidence of such title." But because the governor must sign the commission it is not a necessary inference that he has the power to appoint the person to be commissioned. The judges of this court hold commissions signed by the Governor. He could not override the will of the electorate by declining to sign such commissions nor can he by withholding his signature veto the appointment of any officer other than one "purely executive" and one whom he is permitted or required to appoint. The additional contentions therefore add nothing to the argument which in the French case, supra, did not convince this court.

The Governor by Article 5, Section 16 is not required to execute the laws but "to take care that the laws be faithfully executed." If officers fail to perform their duties, the Governor may remove them if the Constitution gives him that right or, if not, "bring the subject to the cognizance of that department of the government which has the power to remove or punish them."Shields et al. v. Bennett (1864), 8 W. Va. 74, 89. He may cause an officer to perform his duties by proceeding in court for a judicial mandate. State ex rel. Withycombe, Gov. v. Stannard,supra. He may in sufficient emergency call out the militia who are under his exclusive control as commander-in-chief. SeeShields v. Bennett, supra. From the constitutional requirement "it does not follow, as a necessary conclusion, that, in order to perform this duty, he must have agents of his own nomination. Our form of government, in its various changes, has never recognized this power as an executive prerogative." Mayor and City Councilof Baltimore v. Howard et al. (1860), 15 Md. 376, 455, 456.

It is not a necessary implication from the grant of executive power to the Governor that he has the exclusive power of appointment to office. If this were true courts would have to look beyond the judicial department for appointment of masters in chancery, receivers and other judicial officers. No one will contend this is necessary. The Legislature was not permitted to name commissioners to aid the court. State ex rel. Hovey v.Noble, infra. The reasoning therein compels the view that the court would not have tolerated such appointments by the Governor. So that the appointive power is not exclusively in one, but as shown in the French case, supra, may be and is exercised by all three departments of the government.

The last sentence of Article 15, Section 2 provides that "the General Assembly shall not create any office, the tenure of which shall be longer than four years." In Baker, Governor v. Kirk (1870), 33 Ind. 517, 527, it was said that: "This section confers upon the legislature the power to create offices not provided for in the constitution, and to fix the tenure of such offices." The right of the Legislature to create new offices might without this section have been assumed, else we would accuse the convention of an astonishing lack of vision.

In close connection with this authorization is the preceding section, Article 15, Section 1 providing that "all officers, whose appointment is not otherwise provided for in this Constitution, shall be chosen in such manner as now is, or hereafter may be, prescribed by law." I find in this section a significance which appellants stress and appellees refuse to concede. To me it seems to be the final step in the reasoning which I restate as follows:

While the appointing act is an executive function, it may be and is exercised by every department of government. The people may determine to whom the power shall be delegated in any case. The Constitution discloses that the grant of executive power to the Governor was not intended to convey to him the exclusive power of appointment for it expressly recognizes certain appointing power as existing in the General Assembly. The power to appoint certain officers was by express grant given to the Governor. This was supererogation if all appointing power was carried in the general grant of executive power. That general grant was therefore not all-inclusive but on the contrary carried no appointing power beyond that pertaining to the functioning of his own office. And finally Article 15, Section 1, declares that all appointments not otherwise provided shall be made in such manner as may be prescribed by law. The conclusion is that the Legislature may determine who shall appoint the administrative officers referred to in certain cases and these include the cases designated in the questioned statutes. With this interpretation no constitutional provision is overlooked and to every one is ascribed some effectual significance. The offices were created by the Legislature who assigned to a board of executive and administrative officers the selection of the incumbents and the supervision of their administrative activities. This the Constitution permits.

But appellees would limit the application of Article 15, Section 1 to only such offices as were in existence in 1852, relying upon the words of Coffee, J., in State ex rel. Jameson v. Denny, Mayor (1889), 118 Ind. 382, 390, 21 N.E. 252, 4 L.R.A. 79. He was then endeavoring to find some express grant to the General Assembly of the appointing power recognized but not granted in Article 5, Section 18 and did find it in Article 15, Section 1. He did not say that this was the only function of the section. Nor did he think so. His conclusion was only that this section did not give the General Assembly itself the appointing power to any office not existent when the constitution was adopted.

Less than a year later he said in State ex rel. Collett v.Gorby (1890), 122 Ind. 17, 25, 23 N.E. 678:

"This section does apply to most of the statutory State offices. Under its provisions the General Assembly has created the office of mine inspector, oil inspector, trustee of the new benevolent institutions, state prisons, reformatory institutions, state board of health, state board of charities, and many other offices, and has made the incumbents of such offices appointive, as it had the undoubted power to do. In the creation of these, and kindred offices, It is within the power of the General Assembly to provide by law that such offices may be filled either by election or by appointment; and when to be filled by appointment it need not provide that such appointments shall be made by the Governor. Such appointments, if the law so provides, could, doubtless, be made by the Governor of the State, or by any one or more of the administrative State officers.

"We are not aware that a different doctrine has ever been advanced or advocated by any one." And in the following year, speaking for a unanimous court inState ex rel. Yancey v. Hyde (1891), 129 Ind. 296, 308, 28 N.E. 186, 13 L.R.A. 79, he said:

"The office is not an administrative State office, whose incumbent is charged with the administration of a separate department of the State government. The duties to be performed are such as pertain purely to the police. It is an office, therefore, which may be filled by appointment, and as the appointment of the incumbent is not provided for in the Constitution, the case falls clearly within the provisions of section 1, article 15. That section applies to such officers only as may be appointed, and for whose appointment no provision is made in the Constitution. As the incumbent of the office in question may be appointed, and as no provision is made in the Constitution for his appointment, the General Assembly has the power to provide by law for the manner of his selection. It has the power to provide that such office shall be filled by popular election, or that it shall be filled by appointment. While the appointment to office is, generally, the exercise of an executive or administrative function, we do not think it must, of necessity, be made by the Chief Executive, for by the terms of section 1, article 3, of the Constitution, the executive department of the State includes the administrative. Of course, it was not the intention that any administrative State officer should perform any duty properly and necessarily belonging to the Governor of the State, but it was, we think, the intention that such officers should have the power to perform such duties as should be required of them by law, in the administration of the State government, where such requirement in no wise conflicted with the powers delegated to the Governor alone.

"The appointment to office being generally the exercise of an executive or administrative function, the power must be conferred upon some executive or administrative officer, but the State geologist is an administrative State officer, elected by the people.

"The appointment to the office in controversy here by the State geologist is certainly a manner or mode of selecting an officer for whose appointment no provision is made by our Constitution. Nor does such mode of selection in any manner infringe upon the prerogatives of the Governor of the State."

So far as I can ascertain from the books, these opinions of Judge Coffee were shared by all the judges who were on the bench during the administration of Governor Hovey when arose the many cases relied upon by appellees and reported in volumes 118 to 129 of the Indiana Reports. Judges Elliott and Mitchell, who were the original dissenters, insisted that the Legislature itself might fill an office of its creation. That opinion did not prevail, but there was no doubt cast upon the legislative right to give the appointing power to others than the Governor, or to others with him. Judge Berkshire, in City of Evansville v. State ex rel.Blend (1889), 118 Ind. 426, 446, 21 N.E. 267, 4 L.R.A. 93, did say that it "must be lodged somewhere within the executive department of the government." The laws in question are within this narrow field, for the Secretary of State, Auditor of State, and Treasurer of State are elective officers in the administrative department which by the constitutional provision for separation of powers is included in the executive branch of the government. The Lieutenant Governor is also an executive officer as held in Armstrong v. Townsend (D.C.S.D. Ind., 1934), 8 F. Supp. 953, which holding I think is sound. These four elective executive officers with the Governor, in various combinations of three, are the boards whose power to appoint is here in question.

While the judges of the courts from 1889 until as late as 1900 (Overshiner v. State [1901], 156 Ind. 187, 59 N.E. 468, 83 Am. St. Rep. 187, 51 L.R.A. 722) were concurring in the dicta of Judge Coffee above quoted, the General Assemblies from 1861 until 1941 were enacting laws in harmony with the views so expressed. In each of the following instances, the Governor was named a minority member of a board of officers in the "executive including the administrative department" to appoint the personnel of other administrative boards or agencies:

Agent of State, Acts 1872, p. 27;

Commissioners to erect a State Soldiers' and Sailors' Monument, Acts 1887, p. 30;

State Board of Health, Acts 1891, p. 15;

State Agricultural and Industrial Board, Acts 1891, p. 92;

Board of Prison Directors, Acts 1895, p. 160;

Board of Regents of State Soldiers' and Sailors' Monument, Acts 1895, p. 134;

State Unemployment Compensation Board, Acts 1936 (Spec. Sess.), p. 104;

On the following boards, he was made a minority member associated with other state officers not appointed by him:

State Board of Education, Acts 1861, p. 96;

Same, Acts 1865, p. 33;

State Board of Equalization, Acts 1872, p. 57;

Commissioners of Public Printing and Binding, Acts 1875 (Special Session), p. 66;

Same, Acts 1885 (Special Session), p. 215;

State Board of Tax Commissioners, Acts 1891, p. 199, 249 (Governor, Auditor of State, Secr. of State and two persons appointed by Governor);

Board of Public Buildings and Property, Acts 1895, p. 359;

Commissioners of Public Printing, etc., Acts 1905, p. 143;

State Board of Finance, Acts 1907, p. 391;

State Charter Board, Acts 1915, p. 550;

Board of Public Buildings, etc., Acts 1919, p. 572;

Numerous boards under State Executive-Administrative Act of 1933, p. 7.

By other statutes, the Governor was associated with various persons, some not even state officials, in administering agencies of government, e.g. Division of State Publicity, Acts 1939, p. 736. And in many cases he and other persons of his appointment constituted the administrative boards. Upon their appointment, he became a minority member. We cannot assume that his appointees would abdicate their right and duty to exercise an independent judgment on matters before the board and blindly do his will merely because they owed their appointment to the Governor. That kind of a public servant is not to be commended.

This interpretation by the Legislature of its constitutional rights was deemed by Hackney, J. in the French case, supra, to be controlling. Surely, after forty-five additional years of construction in harmony with what he then conceived to be the law, the matter is put beyond all controversy. If there be doubt that I have stated the correct view in my judicial interpretation, that doubt should be resolved in favor of the practical or legislative exposition. In my opinion, therefore, Chapter 13 of the Acts of 1941 is not subject to the objections raised by appellees and the appointive and supervisory powers therein given may be exercised by the various appellants in conjunction with the Governor as therein provided. The issue is not presented and I express no opinion as to whether any elective state administrative officer may be required to accept in his department, to aid in the discharge of duties peculiar to his office, assistants or employees other than of his own choice.

No reason appears why the Governor should have any connection with the school system which Article 8 of the Constitution commits to the Legislature; Section 4 even requiring the General Assembly itself to invest all school funds not theretofore distributed to the counties. The Superintendent of Public Instruction is required to be elected, Section 8. In 1861 an act made the State Superintendent, Governor, Treasurer, Auditor, Secretary of State, and the Attorney General the board of education. Acts 1861, ch. 41, p. 68, 96. Chapter 1 of the Acts of 1865 provided that the Governor, State Superintendent of Public Instruction, president of the State Normal School, and the superintendents of common schools of the three largest cities in the state should constitute the board. In 1913, the Governor was taken from the board, but was required to name three of a board of ten. Acts 1913, ch. 24, p. 37. With this history, possibly incomplete, and the constitutional injunction upon the Legislature to provide the school system, it is inconceivable that the Governor has such an interest in the board of education by virtue of his office as to require his control thereof by appointment. This objection urged to Chapter 182 of the Acts of 1941 in my opinion cannot be sustained.

It is also claimed that the former board may not be legislated out of office by repealing and re-enacting the law providing for a different manner of appointment. This question arises also as to the office of attorney general contained in Chapters 108 and 109 of the Acts of 1941, each with an emergency clause to take effect on April 1, 1941, which must be read together. The former abolished the office of attorney general and the department of law and terminated the tenure of the officer and all his subordinates. Chapter 109 "created" the office of attorney general and made it elective, the first incumbent to be chosen at the general election in 1942 and to take office on the second Monday of January thereafter. He is assigned additional duties to those of the former office. So much of the law is not questioned by appellees.

It goes further, however, and authorizes the employment by a board, consisting of the Governor, Lieutenant Governor and Secretary of State, of "a duly licensed and qualified attorney" to act as attorney for the state in the interim from April 1, 1941 until the elected incumbent shall take office. Chapter 109 designates him as the Attorney General and assigns him duties as disclosed in the majority opinion. These are not all the duties of the former office.

Appellees contend that the effect of the law "was to continue the office of attorney general as an office of appointment, with the term shortened until there be an elected incumbent" and that the present incumbent is entitled to hold over until that time. Appellants say that the Legislature abolished the former office and thus ended the incumbent's tenure; that a new office (elective) was created with additional powers and duties; that there need be no attorney general until the elective incumbent takes office; and that, in the meantime, the Legislature may provide for an attorney to represent the state and its agencies and advise them, without regard to the duties theretofore assigned to the attorney general. In addition it is asserted that the Legislature may itself select the attorney general as held inCollins v. State ex rel. Morrison (1856), 8 Ind. 344.

Chief reliance, however, is placed upon State ex rel. Yancey v. Hyde, supra, which I think sustains the validity of this legislative action. It has never been criticized or disapproved. It has been cited and its principles followed in Goodwin, Clerkof City of Terre Haute, v. State ex rel. Foley (1895),142 Ind. 117, 41 N.E. 359; Downey v. State ex rel. (1903),160 Ind. 578, 581, 67 N.E. 450; Conter, Treas. v. Post (1935),207 Ind. 615, 618, 194 N.E. 153; Rogers v. Calumet National Bank (1938), 213 Ind. 576, 585, 12 N.E.2d 261. All these cases hold that a legislative body which has the power to create an office may also abolish it and end the tenure of the incumbent. The same legislature may create a new office to be filled in other manner or may otherwise provide for performance of duties theretofore assigned to the old office.

Of the cases cited by appellees, most are readily distinguishable. The case of Commonwealth ex rel. Smillie v.McElwee (1937), 327 Penn. 148, 193 A. 628, like the case ofState ex rel. v. Fox (1902), 158 Ind. 126, 63 N.E. 19, 56 L.R.A. 893, was correctly decided as violating the doctrine of home rule. The language relied upon by appellees was not necessary to the decisions. The provisions of the Delaware Constitution are so unlike ours that State ex rel. Green v.Collison (1938), 9 Harr. 245 (Del.), 197 A. 836, is not at all helpful. The issue there was whether a statute giving the governor the power to remove an appointive officer "without cause" was valid. The case of People ex rel. Kelly v.Milliken (1923), 74 Colo. 456, 223 P. 40, shows that the legislature was restrained by express constitutional provision from removing a civil service officer, so that the act abolishing and re-creating the office with other appointing provisions was invalid. The case of State ex rel. v. Leonard (1888),86 Tenn. 485, 7 S.W. 453, held that a judge elected for a term of eight years, the office being legislative but the term fixed by the constitution, could not be legislated out of office by transferring the duties of his court to another court.

The case of Malone v. Williams (1907), 118 Tenn. 390, 103 S.W. 798, is full of dicta to the effect that the Legislature may not remove an officer by abolishing and re-creating the office. But the dicta are largely based on a rule in North Carolina wherein Hoke v. Henderson (1833),15 N.C. 1, 25 Am. Dec. 677, was the leading case. It was expressly overruled in State ex rel. Mial v. Ellington (1903),134 N.C. 131, 46 S.E. 961, 65 L.R.A. 697, wherein it is said (page 709 of 65 L.R.A.):

"To conclude the matter, the doctrine of Hoke v. Henderson is based upon the proposition that public office is private property, with all the results that logically flow therefrom. In so far as that case holds this proposition to be law, we expressly overrule it, and declare that no officer can have a property in the sovereignty of the state; that, in respect to offices created and provided for by the Constitution, the people, in convention assembled, alone can alter, change their tenure, duties, or emoluments, or abolish them; that, in respect to legislative offices, it is entirely within the power of the legislature to deal with them as public policy may suggest and public interest may demand."

State ex rel. Birdsey v. Baldwin (1877), 45 Conn. 134, comes nearer the question. By the same act a board was abolished and re-created with the same duties and powers. The court held that a legislative office may be abolished so as to terminate the tenure of the officer but said:

"The act in question contains the elements of its own destruction. It attempts to kill and make alive at the same instant, an impossibility. There must be some appreciable space of time between the repealing act and the re-enactment of the same act."

It is clear that, unlike the statutes before us, there was no change in the duties or powers assigned to the new office. But if it be conceded that an office may not be destroyed and re-created in the same act, the situation here as to the Attorney General is further distinguishable in that Ch. 108, the repealing or killing act, was passed, vetoed, and re-passed over the veto before Chapter 109, the act that created or made alive, was in the legislative mill. It is true that the acts were to take effect upon the same day but when the first was passed it was not known, as indicated by the language of the veto message, that the second or any similar act would be presented for passage. While to abolish the office, without providing a substitute, would have caused much confusion, the Legislature which created it could destroy it without in any way violating the Constitution.

On the subject generally see the notes and cases cited in 4 A.L.R. 205, 206; 37 A.L.R. 815; 46 C.J. Officers, § 30, p. 934.

Chapter 182 discloses that partisan considerations could make difficult the selection of the members of the board of education. There is no field of activity under governmental supervision wherein politics is to be more scrupulously avoided than in the public school system. The court has a right to assume that such considerations will not control the two executive officers charged with such selection. Upon such assumption there is no reason presented which in my opinion requires us to hold this statute invalid.

From my answer to the principal question in this case it necessarily follows that the Legislature may determine the public policy as to appointing power. Whether that power should be concentrated in the Governor, distributed among the executive and administrative state officers, put under civil service regulations or largely restored to the electorate, this court is not permitted to decide.

Turning now to a consideration of the arguments of the majority, a major premise is that "at the time our Constitution was adopted it was settled by the great weight of authority that the provision granting the executive power and the admonition to take care that the laws are faithfully executed carried with them as a necessary and essential incident the power to appoint to office." I do not accept this statement. From the investigation I have been able to make in connection with this case, it seems to me that this was a debatable question not settled even as to the United States Constitution and certainly not as to state constitutions.

I do not believe that the learned members of the Constitutional Convention had determined that the great weight of authority was as so stated and were so convinced of that fact that they thought those provisions inserted in our Constitution necessarily carried the implication of the appointing power. They were able men but, I suspect, of no greater ability than the members of any constitutional convention that might be assembled today.

In the face of the long historical statement of Chief Justice Taft in the Myers case, supra, I am of the opinion that Judge Mitchell, whose scholarly opinions indicate his acquaintance with the history of constitutional government, was within the facts when he said in Hovey, Governor, v. State ex rel. Carson (1889), 119 Ind. 395, 401, 21 N.E. 21:

"It is fundamental error, however, to assume that the exclusive right to exercise the power of appointment is included in the general grant of power to the executive. The Federal Constitution declares, with emphasis, that `The executive power shall be vested in a President of the United States,' but it was never supposed that this declaration invested the President with the appointing power, which, after long and earnest debate, was conferred upon the chief executive of the nation in express terms. Section 1, Art. 2, U.S. Const."

Another major premise of the majority is that the Secretary of State, Auditor of State and Treasurer of State were intended to be of such inferior status as to be ministerial only in the present acceptance of that word, which implies no discretion whatever. If the members of the convention were as learned as claimed and were thinking in terms of the United States Constitution, they must also have had in mind, at least, the Secretary of State in the Federal Government and must have known that his office was not of minor, but of major importance. They knew also that he was appointed by the President and subject to the President's will. If they had had any intention that the Secretary of State under our constitution should be of such inferior position, as the opinion indicates, they would not have made the office elective; nor would they have set up a separate article in the Constitution entitled "Administrative" and included therein the provisions as to the three elective state officers who then were deemed an adequate number to administer the state's business. But it seems to me that the Constitutional Convention also recognized the possibilities of increasing functions of the elective offices in the administrative department and purposely did not circumscribe the duties of the officers, being content with stating that they should "perform such duties as may be enjoined by law."

If in 1852 the intention was that these officers should have no executive and discretionary powers, nevertheless it seems to me that the practical construction by the Legislature, which has increasingly during the years added to the duties and powers of each of these elective officers, makes impossible any present holding that they are ministerial officers only. I quote again Judge Elliott: He said in Hovey, Governor, v. State ex rel.Riley (1889), 119 Ind. 386 at 388, 21 N.E. 890:

"Our own and other courts have time and time again adjudged that practical exposition is of controlling influence wherever there is need of interpretation. The language employed by the courts is strong, and the current of opinion is unbroken. In speaking of the effect of a practical exposition, it was said by an able court that: `It has always been regarded by the courts as equivalent to a positive law.' Bruce v. Schuyler, 4 Gilm. 221. In adhering to long continued exposition, another court said `We can not shake a principle which in practice has so long and so extensively prevailed.' Rogers v. Gooden, 2 Mass. 478. But it is unnecessary to quote the expressions of the courts, for harmony reigns throughout the whole scope of judicial opinion upon this subject."

I can see no force in the definition of the word "Governor." If it was intended by the use of that word that he should govern, then it was intended by the use of the word "President" in the Federal Constitution that he should preside. The word "Governor" was the common name for the chief executive in all the states and carried no further implication. His powers were to be determined not from the name but from the Constitution.

The majority lean heavily upon the Noble case, supra. This case holds that all judicial power was given to the courts by Article 7, Section 1 and that none of such power was reserved by the people. This can be true without giving a like effect to Article 5, Section 1. The judicial power is not divisible in the sense that a part may be reserved in the people and a part given to a court. It can be distributed but the distribution must be to courts. If it were retained by the people we should have a government of force not of law. Nor was the legislative power in 1852 deemed possible of separation so that some might be delegated to a department of government, the remainder to be retained and exercised by the people. This was before the days of the initiative and referendum. The Constitutional Convention did not consider a town meeting adaptable to the needs of a great state and provided a representative assembly to which all legislative power was delegated except under the principle of home rule.

The executive power is different. Every citizen when he obeys the law carries the law into effect which in one sense is an execution of the law. Every officer, elective or appointive, in the state, from township up to Secretary of State executes some part of the law. All executive power cannot be so concentrated as to be exercised by one man. If it be conceded that appointment to office is necessarily an executive function, then from the very nature thereof the power of appointment can be distributed to several or many persons.

The claim is made by the majority that Article 5, Section 1 is the grant of general appointive power to the Governor. They do not rely on Article 5, Section 16 as a grant but as evidence that the grant was made by the first section of the article. They further say that "In the absence of an express provision the general executive power does not carry with it power to fill a vacancy in an elective office." No authority is cited for this statement. It has been held that where the Legislature has created an office and provided no means of filling such office, the Governor under the clause that he shall take care that the laws be faithfully executed has authority to make an appointment to that office. I can see no reason why, if an elective office becomes vacant by death or otherwise, the Governor should not have authority under the same constitutional provision to make an appointment to that office. It is not necessary to go to Article 5, Section 1 for that authority and the argument therefore fails. The power to fill a vacancy is not in aid of the general appointive power claimed under the grant of executive power.

I can see how some appointive power in the Governor (and not confined to the administration of his own office) might be implied from the necessity of a situation, without having to resort to the implication that all general appointive power is included in the grant of executive power. This does not conflict with the view that where express powers are granted implied powers are excluded. If there were no other provisions in the constitution to which we might turn for authority to fill a particular office and the functioning of that office was necessary to the public welfare it might be assumed that the Governor should make the appointment because normally appointment is a step in the execution of the law and not a legislative or judicial function. But the power so to do would not flow from the grant of all executive power, but from the necessity to maintain the office. The argument is not important, however, for in the Constitution there is a provision, Article 15, Section 2, which, with other provisions, seems to me to exclude the necessity for an implication of emergency appointive power in the Governor.

There seems to me to be no substance in the argument that this section is found in Article 15 entitled "Miscellaneous" and is therefore to be considered only as an afterthought without material bearing upon the prior provisions. "The rule applicable here is, that effect is to be given, if possible, to the wholeinstrument, and to EVERY SECTION AND CLAUSE." (My capitals.) 1 Cooley's Constitutional Limitations (8th Ed.) p. 128. This being true, what is the difference whether the section be in Article 15 or Article 4 or 5 or 6? I can find no better place for it than where it is.

Judge Elliott took the position that the several clauses granting appointive power to the Governor excluded implication that the executive power vested by Article 5, Section 1 gave to him general appointing power. The majority say that the express provisions for appointing power were necessary additions to the general appointing power under Article 5, Section 1 for the reason that without them the Governor would be invading the province of the other departments of the government in making such appointments. I do not accept this theory.

It is not an interference with any other department of government for him to make an appointment to fill a vacancy. It is not a usurpation of sovereign right of the people for him to do something which they cannot do until an election. And particularly with reference to filling vacancies in the office of judge there is no interference with judicial power when the governor appoints a judge because, upon the premise of the majority, appointment is not the exercise of a judicial but of an executive function. Nor, in the absence of an express provision for executive appointment, would we be driven to the conclusion that a vacancy in the office of judge must be filled by some judicial body as an incident to the functioning of the judicial system. Not on this theory can be explained the presence in the Constitution of the provision for interim appointments by the Governor.

The only necessary implication from the concluding clause of Article 5, Section 18 is that the Governor may appoint only an interim officer instead of one to fill out an unexpired term and that the elective or appointive authority shall select the permanent officer.

The majority also say that the provisions which appellants claim grant express executive power to the Governor "are not, in fact, grants of power but rather directions or mandates as to the manner in which executive power is to be exercised, or limitations upon power or delegations of power, which are not in essence executive." Sections 12 to 19 of Article 5, are asserted to be these mandates or limitations. In my opinion they are not of the character claimed. I fail to see how any communication or recommendation to the General Assembly could possibly be an invasion of a legislative power. Section 14 as to veto is an express delegation of legislative power and not a limitation upon the exercise of executive power. See 16 C.J.S.Constitutional Limitations, § 170, p. 514. It is not necessary to determine whether under any other provision or implication he would have had that power in the absence of the language of this section. Section 15 in conjunction with Article 6, Section 1, to me is evidence of the intent of the convention that the administrative officers were not to be subservient to the Governor, but were to be independent; not so independent, however, that they might refuse to give the Governor information. There is no contention that Section 16 is a limitation of power. Nor, in my opinion, is it a grant of power. It is a specific assignment to the Governor of a duty which might well have been implied from the grant of executive power. The majority say that Section 17 involving pardons and reprieves is a "limitation on the common law power." But this court in State v. Dunning (1857), 9 Ind. 20, 23 had a different view:

"The governor, then, simply by virtue of his office as such, takes no power touching pardons — there is no such prerogative here. He derives his power from the constitution and laws alone."

This provision is a grant of power but with a limitation which was not contained in the prior constitution under which the pardoning power had been abused. For the reasons above stated I think Section 18 is a grant of the appointive power which might well be within the normal sphere of the Governor's duty to see that the law be executed. This however does not carry the implication of general appointing power by virtue of the vesting of the executive power. Sections 19 and 20 do not appear to me to have any significance on the question before us.

It is asserted: "But if the executive powers granted to the Governor are confined to express grants, the provision that the executive power shall vest in the Governor is surplusage, and this cannot be." This argument proceeds on the fallacious assumption that there is no executive power except the power of appointment. I do not assert that the Governor was not granted executive power by Article 5, Section 1, but on the contrary I do hold that such grant did not include general appointing power. There is no surplusage created by this construction.

The Gray case, supra, is given an effect out of all proportion to the issue decided which was that a board of consisting of the Governor, Attorney General, Secretary of State and Treasurer of State could be mandated to redeem certain state bonds. It was said that any duty which the Governor "is by law required to perform, in connection with others, in which they have an equal voice with him, can in no sense be said to be an executive duty." But it was not said that a Governor cannot be associated with those and similar state officers in the exercise of the appointing power, which is not exclusively an executive duty. Nor has it ever been held that this could not be done. It is not correctly stated by the majority that these officers "were treated and considered as ministerial officers" in the Gray case,supra. The duty which they were exercising was characterized as aministerial duty; the officers were not so labeled.

The majority quote at length from State ex rel. Collett v.Gorby, supra, where is suggested the extreme length to which the Legislature might go in transferring duties from one officer to another. This might be unwise or unfortunate but not necessarily unconstitutional.

It is further asserted that the appellants are claiming that Article 15, Section 1 gives the right to the Legislature to put the appointing power in any person. This is not my position. I do believe that an officer in the "executive including the administrative department" may be given power to appoint the personnel of administrative offices.

I am not aware that the Governor (as executive) has any peculiar claim to "manage" the property of the state and no authority is cited for the claim. I have seen authority for a legislative right to such management. The fact is, I think, that as the title is in the state, that is, in the people, they have the control of the property and may determine how it shall be managed. In the absence of constitutional provision, they speak through the Legislature. And when they have so spoken, the various agencies to whom custody is committed, and not the Governor by virtue of his office, must execute the will of the people so expressed.

There is one more assertion in the majority opinion which seems to require notice. Apparently the view is taken that the rule of practical construction should be confined to statutes. If this be their view, I think it erroneous. See 1 Cooley, ConstitutionalLimitations, pp. 141-151 wherein numerous cases are cited. It is true that a practical interpretation of a constitution plainly contrary to its express provisions may not stand when challenged. But where there is ambiguity or doubt then constitutions as well as statutes, which have been given a long continued practical exposition by a coordinate branch of the government, must be given the same exposition by the courts. If I alone of all the judges that have served on this court had conceived the Constitution to be as I think it is I would not insist that the Legislatures which have shared my views were right. But these views were shared also by Judges Elliott, Mitchell, Coffee, Berkshire, Olds, McBride, and Miller, who were on the court in the years of controversy immediately after the election of Governor Hovey, by Judges Hackney, McCabe, Howard, Jordan, and Monks, who joined in the French decision, supra, and by Judges Hadley, Dowling, and Baker who were serving with Monks and Jordan when the Overshiner case, supra, was decided. So far as I am aware no judge until this date has expressed a different view. If many dicta and one decision, in a case where that was the only question presented, are of any significance, the views so held surely present to my brother judges an occasion for such doubt of their position that the practical construction of the legislatures for more than half a century should be entitled to controlling weight.

The court has heretofore said: "If the statutes are constitutional, the injunction should not have been granted." I am firmly of the opinion that the statutes are constitutional and that the judgment should be reversed.

NOTE. — Reported in 35 N.E.2d 270.