State ex rel. City of Terre Haute v. Kolsem

Elliott, C. J. A preliminary question, arising upon the contention of counsel that the appellees are barred from prosecuting this action, first requires consideration. The facts upon which counsel plant themselves are, in substance, these: The relator filed an information in the nature of a quo war-ranto against the appellees, asserting that they had entered into the office in controversy without right. The trial court sustained the relator, and gave judgment in its favor. The appellees prayed an appeal, but took no further steps to effect an appeal. Subsequently the appellees brought this suit to review the judgment, and obtained the relief they sought. If the appellees had perfected their appeal, there could be no doubt that the case would have been entirely removed from the jurisdiction of the trial court, and that court — 436 — could not have entertained a bill to revie'w the judgment pending the appeal. Allen v. Allen, 80 Ala. 154; Boynton v. Foster, 7 Metcf. 415; Mitchel v. United States, 9 Pet. 711; Ensminger v. Powers, 108 U. S. 292 (309); Burgess v. O’ Donoghue, 90 Mo. 299. But here there was no appeal, for this court never acquired jurisdiction. Holloran v. Midland R. W. Co., 129 Ind. 274. As there was no appeal, jurisdiction was not vested in this court, and the trial court did not err in entertaining jurisdiction of the bill of review. The controversy grows out of the claim made by the ap-pellees to the office of police commissioner of the city of Terre Haute, to which they assert title under the act of March 4th, 1891. Acts of 1891, p. 90. The relator denies their right to the office, affirming that the act under which they assert title is invalid, because it violates the provisions of the Constitution. The power of the Legislature to provide for the appointment of members of a municipal board of police has been affirmed in every instance in which it has been so challenged and presented as to require the judgment of the courts. Those courts which hold to .the doctrine that control of matters of purely local concern can not be taken from the people of the locality place their decisions upon the ground that the selection of peace officers is not a local matter, but is one of State concern, inasmuch as such officers belong to the constabulary of the State. But while the reasoning of the courts is diverse, the ultimate conclusion reached by all the cases is the same. City of Indianapolis v. Huegele, 115 Ind. 581; State, ex rel., v. Denny, 118 Ind. 382; State, ex rel., v. Denny, 118 Ind. 449; City of Evansville v. State, ex rel., 118 Ind. 426; State, ex rel., v. Blend, 121 Ind. 514; People, ex rel., v. Draper, 15 N. Y. 532; People, ex rel., v. Shepard, 36 N. Y. 285; People, ex rel., v. Mahaney, 13 Mich. 481; State, ex rel., v. Covington, 29 Ohio St. 102; Police Commissioners v. City of Louisville, 3 Bush, 597; State, ex rel., v. Hunter, 38 Kan. — 437 — 578; Mayor, etc., v. State, ex rel., 15 Md. 376; State, ex rel., v. Seavey, 22 Neb. 454. In our judgment the act here assailed may be upheld upon the ground that it does not trench upon the right of local self-government. We put our. decision on this point upon the principle that in providing for the appointment of officers connected with the constabulary of the State there is not an invasion of the right of local self-government, but simply the exercise of the power to provide for the selection of peace officers of the State. A municipal corporation is not clothed with any vested right in a public office; nor, indeed, does it possess a vested right in public property. It has been long and firmly settled that the charters of public corporations may be repealed or altered as the Legislature, in the exercise of its constitutional powers, deems proper.’ Sloan v. State, 8 Blackf. 361; Meriwether v. Garrett, 102 U. S. 472; Coffin v. State, ex rel., 7 Ind. 157 ; 1 Dillon Municipal Corp. (4th ed.), sections 61, 63, 71. See, also, authorities collected in Elliott Roads and Streets, p. 320. The rule stated by us fully and effectually disposes of the argument of counsel that the act is void because it impairs the vested rights of the city of Terre Haute, as it is quite clear that in transferring property and authority from one class of officers to another no vested right of the municipality was invaded. The act contains this provision : “ That in all cities hav-. ing an enumeration of children between the ages of six and twenty-one years, of 14,000 and over, as shown by the official returns of such enumeration, made by the several county superintendents of this State to the superintendent of public instruction, for the year 1890, there shall be established within and for said city, a board of metropolitan police, to consist of three commissioners, to be appointed by the Governor, secretary, treasurer and auditor of state, or a majority of them.” The appellant’s counsel Argue, with sig — 438 — nal ability, that the Legislature in selecting the standard of classification has chosen an arbitrary, unreasonable and ineffective one, and that, therefore, the act must fall because it is a special one, and is of the class of special legislation interdicted by the Constitution. It may possibly be true, as counsel assert, that the standard of classification was adopted for the sole purpose of bringing a single municipality under the act, and that the motives of the Legislature were not commendable; but, granting all this, yet no reason is supplied for condemning the law, for the courts can not inquire into the motives of the legislators. All that the courts can rightfully do is to ascertain and decide whether any constitutional provision is violated. Their power extends only to an investigation and determination of the question whether the law is or is not unconstitutional. The subject to which the act under consideration is addressed is not one upon which the Legislature is forbidden to enact special laws. If the subject were one of those enumerated in the section which prohibits the enactment of special laws, we should have a very different case from the one before us; but it is not within the classes enumerated, nor can it be brought within the enumeration save by interpolating a provision not written in the Constitution. It is, of course, known to all that where special laws are not forbidden they may be enacted. Thorpe v. Rutland R. R. Co., 27 Vt. 140; Adams v. Howe, 14 Mass. 340; Sharpless v. Mayor, etc., 21 Pa. St. 147 (161). If the enactment of such a law as the one before us is forbidden, it must be by virtue ■ of section 23 of article 4 of the Constitution, for the subject embraced in the act is not included in the enumeration found in the preceding section. But section 23, as has been again and again decided, does not prohibit the enactment of special laws, where general ones can not be made applicable. It has also been repeatedly held that whether a general law can be made applicable to a particular subject is exclusively a legislative question, and it necessarily results that if the — 439 — question is legislative the whole matter, with all its incidents, must be determined by the Legislature. It has been steadily held since the decision in Gentile v. State, 29 Ind. 409, that the Legislature is the exclusive judge of whether a general law can be made applicable to a subject not enumerated in section 22 of article 4 of the Constitution. In that case it was said: “As the General Assembly, then, have the power to pass local laws where general ones can not be made applicable, and as the Constitution does not declare, except in the eases enumerated in section 22, in what particular cases general laws can be made applicable, or designate the proper subjects of local legislation, whor is to determine when a law may be local, or when a general law can be properly applied to the particular subject? Most unquestionably, those who make the law are necessarily required, in its enactment, to judge and determine, from the nature of the subject, and the facts relating to it, whether it could properly be made general, and of uniform operation throughout the State.” Among the many cases affirming and .enforcing the doctrine so emphatically declared in the case from which we have quoted are these; City of Evansville v. State, ex rel., 118 Ind. 426 (433); Wiley v. Corporation of Bluffton, 111 Ind. 152; Johnson v. Board, etc., 107 Ind. 15 (22); Kelly v. State, ex rel., 92 Ind. 236; Stuttsman v. State, 57 Ind. 119; Vickery v. State, 50 Ind. 461; Marks v. Trustees, etc., 37 Ind. 155; State, ex rel., v. Tucker, 46 Ind. 355; Clem v. State, 33 Ind. 418; Longworth v. Common Council, etc., 32 Ind. 322; State v. Boone, 30 Ind. 225; State v. Hockett, 29 Ind. 302. It is simply and absolutely impossible to escape the force of the decision in Gentile v. State, supra, for the question was there made and there decided. The question was before the court for decision, and judgment was given upon it. This has been affirmed in many cases in terms as strong as the pen can frame. In the case of City of Evansville v. State, ex rel., supra, the question came before the court upon an act relating to precisely the same subject as that covered by the act now before us. — 440 — There is no room for doubt as to what was there decided, nor is it possible to doubt that what was there decided is controlling here. What was there said upon the point, and all that was said, is this: “ To the objection that the act is in violation of section 23, article 4, the answer must be that the question is one for the Legislature, and not for the courts.” It is not easy to conceive how there could be a stronger or clearer decision that the whole question is legislative than that in the case from which we have quoted, but other cases are equally strong and clear. The court directly applied the doctrine of Oentile v. State, supra, to the amendment of a town charter in the case of Wiley v. Corporation of Bluffton, supra, and in Johnson v. Board, etc., supra, applied that doctrine to a legalizing act, saying: “And hence many local and special laws have been upheld and the rulings have been, that where the case does not fall within the cases enumerated in section 22, it is for the Legislature to determine whether or not a general law can be made applicable, and that the legislative judgment upon that question will not be reviewed by the courts.” In Vickery v. Chase, supra, Buskirk, J., delivering the opinion of the court, said : “ Besides, it has been repeatedly held by this court, that ‘the Legislature is the exclusive judge, whether a law on any subject not enumerated in section 22 of article 4 of the Constitution can be made general and applicable to the whole State.’ ” He also said that the doctrine “ is too firmly established to be now changed, and is decisive of the case in judgment, so far as it is affected by section 23 of article 4.” Earlier cases had, however, declared the question to be unalterably settled. It can not, therefore, be doubted that the firmly settled rule, as fully understood and directly enforced by a long and unbroken line of decisions, is that whether an act relating to a subject not embraced in section 22 of article 4 can or can not be made general is exclusively a legislative question. But other courts than ours have declared, in terms not less decided and explicit — 441 — than those employed by our own court, that the question must be determined by the Legislature, and that the legislative decision is beyond judicial review. Brown v. City of Denver, 7 Col. 305; Carpenter v. People, ex rel., 8 Col. 116; State, ex rel., v. County Court of Boone, 50 Mo. 317; State, ex rel., v. County Court of New Madrid, 51 Mo. 82; Hall v. Bray, 51 Mo. 288; State, ex rel., v. Hitchock, 1 Kan. 178; Beach v. Leahy, 11 Kan. 23; Davis v. Gaines, 48 Ark. 370. All of the cases referred to are influential, because the decisions were made upon Constitutions like ours; some of them are especially so, because they affirm, as our own court has so often done, that the decision in Gentile v. State, supra, authoritatively adjudges that the question is purely and exclusively a legislative one. The Constitution has been authoritatively construed by the courts. The judicial work has been done, and the question here is whether we shall undo that work, not whether we will decline to give the constitutional provision a construction. We abide by the rule established ; we adhere to the construction so long held to be correct; and, in doing this, leave no duty unperformed. If we should undo the work that has been done, and depart from the long settled doctrine, we should, indeed, turn from the line of duty, and take the foundation from scores of curative and legalizing acts, as well as from many other laws that have long passed unchallenged. But it by no means results from our decision here, nor from the decisions in the cases we follow, that special laws may be enacted upon all subjects connected with towns or cities. The decisions put at rest the question whether or not the Legislature can determine whether a general law, upon a subject not enumerated in section 22 of article 4 can or can not be made applicable, by affirming that it is exclusively a legislative question, and the court must and does so adjudge. If the question is legislative, then it is indisputably true that it is excluded absolutely and entirely from the domain — 442 — of the judiciary. It is inconceivable that the question can be dissected into fragments, and one part assigned to one de-pattment of government and another part to a different department. Under our system of government the departments are distinct and independent; there is no such thing as a power partly judicial and partly legislative. Greenough v. Greenough, 11 Pa. St. 489; State, ex rel., v. Noble, 118 Ind. 350; Wright v. Defrees, 8 Ind. 298; State, ex rel., v. Denny, 118 Ind. 882 (386); State, ex rel., v. Denny, 118 Ind. 449; Hovey v. State, ex rel., 127 Ind. 588. As the question whether a general law can be made applicable is exclusively legislative, the incidents of the main questions are necessarily and entirely legislative. Where the principal subject belongs, there the incidents belong. Means, methods and the like belong to the department that is invested with power over the general subject. It is for that department to make choice of modes and means, and, as the Supreme Court of the United States has said, “ it is master of its own discretion.” Legal Tender Cases, 12 Wall. 457 (561); Hancock v. Yaden, 121 Ind. 366; State, ex rel., v. Haworth, 122 Ind. 462 (467). Where the Legislature has power over a subject, it is the sole judge of the means that are necessary and proper to accomplish the object it seeks to attain. Legal Tender Cases, 110 U. S. 421. The courts can not assume control of the general subject or any of its incidents. As Judge Cooley says: “ The momeht a court ventures to substitute its own judgment for that of the Legislature, in any case where the Constitution has vested the Legislature with power over the subject, that moment it énters upon a field where it is impossible to set limits to its authority, and where its discretion will alone measure the extent of its interference.” Cooley Const. Lim. (4th ed.) 129. The rule is that where a subject lies wholly within the legislative field, into that field the judiciary can not enter. It must, therefore, be true that where a subject is committed to the legislative judgment, the — 443 — Legislature is invested with power to determine the mode of enacting statutes. Whether the legislation shall be by original or by amendatory statute is for the Legislature to decide. Wiley v. Corporation of Bluffton, supra; City of Evansville v. Summers, 108 Ind. 189; Warren v. City of Evansville, 106 Ind. 104; Chamberlain v. City of Evansville, 77 Ind. 542; City of Evansville v. Bayard, 39 Ind. 450; Longworth v. Common Council, etc., supra; Brown v. City of Denver, supra. It is doubtless true that where the Constitution requires the enactment of a general law, the attempt to amend a general law by a special one would be fruitless; but where the .subject is one which does not require a general law, the question as to what form the legislation shall take is exclusively a legislative one.. Here the subject is not one requiring a general law, and hence special amendatory laws may be enacted. Whether the system of classification adopted by the Legislature is a good or a vicious one is a question with which the courts have nothing to do, inasmuch as the entire subject lies within the legislative dominion, and is excluded from that of the judiciary. If the subject were one demanding a classification, a discussion of that adopted in this instance would be proper; but, as the subject is exclusively legislative, it is not for the courts to inquire whether the Legislature has acted wisely or unwisely in selecting a standard of classification. Many things may be done by the Legislature that the courts can neither control nor rebuke. Our duty is done and our power exhausted when we adjudge that the general subject, with its incidents and appendages, is one for legislative consideration and decision. If the Legislature has erred in its judgment, its error must be corrected and rebuked by the electors of the State, not by the courts. The law-making power can not be estopped. Within constitutional limits it is sovereign. Irrepealable laws can not be enacted. Cooley Const. Lim. 146, 148, 343. It neces — 444 — sarily results from these elementary principles that the Legislature, having tried one mode of legislation, is not precluded from trying another. State, ex rel., v. Haworth, supra. The discussion comes back at last to the question, is the subject one for legislative consideration and judgment? for, if it is, modes and means must be selected by the Legislature, not by the judiciary. The argument that the title of the act of 1891 is insufficient is fully answered by the adjudged cases. It is settled beyond controversy that if the title covers a general subject, the act is valid, no matter how minutely it may go into details germane to that general subject. Shoemaker v. Smith, 37 Ind. 122; Bitters v. Board, etc., 81 Ind. 125; Crawfords-ville, etc., T. P. Co. v. Fletcher, 104 Ind. 97; Barnett v. Harshbarger, 105 Ind. 410; City of Indianapolis v. Huegele, 115 Ind. 581. It is insisted that the act of 1891 is so uncertain as to be incapable of enforcement. Phis contention rests upon the ground that it can not be ascertained to what city the act will apply. This position is untenable. A public law provides for the enumeration of persons between the ages of six and twenty-one years, and the enumeration is for a great public pui’pose, affecting high public interests. Elliott’s Supp., section 1273; sections 4441, 4450, 4472, 4475, R. S. 1881. These are, therefore, official acts to which the court may resort for information. State, ex rel., v. Gramelspacher, 126 Ind. 398, and authorities cited p. 403. Those acts are required by legislative enactment, and that enactment was, we know, passed in obedience to the constitutional provision enjoining upon the Legislature the duty of encouraging and providing for a great educational system. We are far within the authorities in holding, as we do, that for the purpose of upholding the statute, and giving it effect, we may justly declare that there is here no such uncertainty as requires its overthrow and the defeat of the legislative purpose. The decision in State, ex rel., v. Blend, 121 Ind. 514, fully — 445 — disposes of tbe point that immunities are conferred upon a favored class of citizens to the exclusion of others, by declaring, as it does that such provisions may be eliminated without impairing the validity of the act in so far as it relates to questions such as those presented by this record. Filed Dec. 17, 1891; petition for a rehearing overruled Feb. 20,1892. Judgment affirmed.