DISSENTING OPINION. I agree with the majority opinion that the relators, Clyde R. Black, Elmer C. Weller, Charles T. Miser, and Beecher Conrad, are employees of the state who do not "perform any official functions in carrying out their duties in these respective jobs"; but I feel compelled to dissent from the absurd result and the reasoning by which it is reached, which holds that each relator, as an employee, was violating § 1 of Article 3 of the Constitution of Indiana. Such result in itself violates this provision requiring separation of governmental powers by constituting this court a self-appointed guardian of the ethics of the members of the Legislature and of the executive department of this state. It is most dangerous for this court to adopt a policy of balancing the interests, which is properly used in extending the growth of the common law, as a basis for interpretation of a constitutional provision, by reasoning that whatever should be the Constitution, therefore is the Constitution for the purpose of a particular state of facts. Words and meaning become so elastic that the Constitution can mean anything, depending upon the varying concepts of constitutional power and authority entertained by a temporary majority of the court, which causes the Constitution in this case, if precedents have any force whatever, to mean one thing when applied to an employee of the state, something else to an employee of a political subdivision *Page 468 of the state, and something entirely different on a question of a legislative function as delegated to an administrative authority or agency. Nor will it do to say the relators should hold but one governmental position at a time. Unless the Constitution prohibits their acts, as it does dual office holding by § 9 of Article 2 of the Constitution, such a public policy is one to be enacted by law of the Legislature and not by any judicial legislation of this court. The Legislature had adopted a statute prohibiting nepotism,1 but it would be a usurpation of legislative power for this court by decision to declare nepotism forbidden by the Constitution. But here far more is involved than the positions held by these relators or the compensation claimed. The interpretation given becomes a precedent for the conduct of state government, and the future ability of the state to meet the varying problems of a changing economy and society may be hamstrung thereby.
The American principle of separation of the powers of government into legislative, executive, and judicial departments has caused difficulty when considered by the courts, both federal and state, because in practical operation it has been found impossible to separate the powers and maintain a high and impenetrable wall which prohibits any coordinate cooperation for the ends of government. The specific provision separating the powers of government in the Indiana Constitution of 1851 is contained in § 1, Article 3, which provides:
"The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." *Page 469
The controversy arises over the meaning of the word "function," and the history of its adoption is of value in determining the meaning of the term.
Article 2 of the 1816 Constitution of Indiana separated the powers as follows:
"The powers of the government of Indiana, shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judiciary, to another: And no person, or collection of persons, being of one of those departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted."
The committee on miscellaneous provisions in the Constitutional Convention of 1851 referred to the convention for its adoption the same paragraph as the Constitution of 1816. On Friday, January 31, 1851, this section was passed on second reading and was referred to the Committee on Revision, Arrangements, and Phraseology. This committee was composed of the chairmen of the various other committees with the distinguished Robert Dale Owen of Posey County as its chairman. It was numbered Section 55 at the time it was referred to the committee. However, when it was reported back by the Committee on Revision, Arrangements, and Phraseology it was placed in the Constitution as § 1 of Article 3, and the language had been changed to its present form,supra.
Article 3 as finally adopted was less broad in its scope than Article 2 of the 1816 Constitution. The words "And no person, or collection of persons, being of one of those departments," had been changed to "and no person, charged with official duties under one of these departments," (italics added) which made it clear *Page 470 that the drafters were concerned with official duties of the state. The word "duties" is more broad than powers, because the power may exist without a duty, but a duty would not exist without the power being implied to execute the same. In order to avoid redundancy the words "official duties" are not repeated, but the word "functions" was used. The forefathers were too practical to have intended by the use of the ambiguous word "functions" to hamstring the operation of state government. Our form of government was modeled after the federal Constitution, and there had already been decisions by the United States Supreme Court that the separation of powers meant the separation of exclusive and necessary official powers. In The State, ex rel.Yancey v. Hyde (1889), 121 Ind. 20, 25, 22 N.E. 644, this court held, in dealing with the power of appointment that: "The word `function,' as here used, means duty; and the clause may be read, `and no person charged with official duties under one of these departments shall exercise the duties of another, except as in this constitution expressly provided.' This constitutional provision is easily understood; it is clear and concise in expression." Other decisions hereinafter noted by their holding make it clear that the prohibition was against an exclusive and necessary exercise of official power and duty of the state. This construction is further supported by the fact that the first clause of the article divides "powers of government." Of course any "power of government" is an official power.
The proceedings of the convention itself give a practical construction of the 1816 Constitution on separation of powers. Jacob B. Chapman, one of the delegates from Marion County, was the state printer, which fact he early called to the attention of the convention *Page 471 in connection with the controversy which arose as to whether or not he was entitled to do printing for the convention. 1 Convention Debates 22 (1850). He claimed to be an officer of the state, and later this court in Ellis v. The State (1852),4 Ind. 1, 3, said: "It was competent for the legislature to make the state printer an officer, and we think they have done so in this state." No question was ever raised that the state printer was ineligible to sit in the Convention of 1850 or that by reason of the separation of powers he as state printer was an administrative officer and so ineligible to act in a legislative capacity by being a participating member in the Constitutional Convention. If the position be taken that the Constitutional Convention of 1850 was not a part of the legislative department strictly speaking, yet its work was legislative in character, and there was never any question raised in the convention that the state printer was acting in any unethical manner in voting on all other matters except the determination of who should do the printing for the convention.
Within ten years after adoption of the Constitution of 1851 this court had squarely presented for its consideration a case involving the separation of governmental powers. The Special Session of the General Assembly of 1861 passed an act appropriating $1,000,000 to defray the expenses growing out of the Civil War. The act provided for the appointment of a committee consisting of two members of the House and one of the Senate, designated as an "Auditing Committee" who were to meet at Indianapolis monthly and examine and audit the accounts of the Commissary General and Quartermaster General, and the Auditor of State was prohibited from paying any of the accounts until approved by this committee. The Auditor *Page 472 of State refused to issue a warrant for the compensation as provided by the statute for a member of the committee. The court held members of the Auditing Committee were not officers within the meaning of the Constitution and that the auditing to be done by the committee was not prohibited by § 1 of Article 3 of the Constitution. Although the court did not state its reason for holding this article was not violated, it was an interpretation by this court, whose members were contemporaries of the Constitution, that a legislative committee could properly perform an administrative act as a condition precedent to the Auditor of State drawing his warrant upon the funds.2 Branham v.Lange (1861), 16 Ind. 497.
Even before the Branham Case, Supra, this court construed § 1 of Article 3 as applying only to state government. By statute the mayor of Indianapolis was judge of the city court with the jurisdiction and powers of a justice of the peace. This court said: "After much consideration, we are of opinion that the executive and administrative duties of Wallace were not such as to come within those departments of the state government, as established by the constitution, and that he was, consequently, left free to be charged with official duties under either of the other departments; . . ." Waldo v. Wallace (1859),12 Ind. 569, 579. This implied exception has been consistently followed since this case. Baltimore, etc. R. Co. v. *Page 473 Town of Whiting (1903), 161 Ind. 228, 68 N.E. 266; Livengood v. City of Covington (1924), 194 Ind. 633, 144 N.E. 416.
Unless these cases which read into § 1 of Article 3 an implied exception, exempting political subdivisions of the state from the prohibition, be overruled, the majority opinion reaches the anomalous result that a member of the Legislature may not be an employee in another department of the state, yet at the same time he may be an employee of a political subdivision of the state. He could drive a city truck, but he could not drive a state highway commission truck. The legislator becomes fish for some purposes and fowl for others. All the arguments contained in the quotations from Hamilton, Madison, Jefferson and Montesquieu quoted in Saint v. Allen (1931), 169 La. 1046, 126 So. 548, on the desirability of the independence and freedom of each department of government apply with equal force to the government of municipalities. Of course the answer is that neither the federal Constitutional Convention nor the Indiana Constitutional Conventions of 1816 and 1850 adopted the words of the philosophical writings of Montesquieu, Hamilton, Madison or Jefferson. Neither of these Constitutions purported to provide for any utopian scheme of government. The provision in these Constitutions for the separation of powers of government was contained in certain specific words, which under a long line of decisions by both the United States Supreme Court and this state, have been construed to mean not a separation of functions as broadly defined in the majority opinion, but a separation of essential and exclusive governmental powers.3 *Page 474
Practically the entire growth in the field of administrative law has been based upon a delegation of legislative power to administrative agencies, and regardless of what names the various courts may have given the agency in order to explain the permitted merging of powers, nomenclature cannot change the facts when legislative functions are delegated to an administrative department, which in Indiana is included in the executive department. The power to tax, the power to make rates for public utilities, and the power to make rules and regulations are each legislative in nature and are certainly legislative functions. A portion of the power of the legislature is delegated in each instance where these matters are finally determined by *Page 475 an administrative agency. Annotation, 79 L.Ed. 474, et seq.; Public Administrative Law, 42 Am. Jur. 281, et seq.; 51 C.J. 12, 13, § 27; 12 C.J. 851, § 338. Mr. Justice Story realized the federal Constitution did not adopt any utopian scheme of government as expressed in the words of Montesquieu, or his disciples in this country, in adopting the federal Constitution. In 1833, he wrote:
"But when we speak of a separation of the three great departments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution. . . ."
1 Story, Const. § 525 (5th ed.).
Chief Justice Marshall expressed the same construction in the following language:
"It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. . . . The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest in which a general provision may be made and power given to those who are to act under the general provisions, to fill up the details. . . ." Wayman et al. v. Southard et al. (1825), 10 Wheat (U.S.) 1, 43, 6 L.Ed. 253, 263. (Italics added.) *Page 476
The United States Supreme Court has often recognized the right of Congress to delegate a legislative function to another department of government. Under § 3 of an Act of Congress, March 2, 1897, entitled "An Act to Prevent the Importation of Impure and Unwholesome Tea," the Secretary of the Treasury was authorized to "fix and establish uniform standards of purity, quality, and fitness for consumption of all kinds of teas imported into the United States" and to prohibit imports not equal to such standards. In Butterfield v. Stranahan (1904),192 U.S. 470, 496, 48 L.Ed. 525, 536, Mr. Justice White, speaking for the court, said:
". . . Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute. To deny the power of Congress to delegate such a duty would, in effect, amount but to declaring that the plenary power vested in Congress to regulate foreign commerce could not be efficaciously exerted." (Italics added.)
This certainly was a legislative duty and a legislative function.
In Field v. Clark (1892), 143 U.S. 649, 694, 36 L.Ed. 294, 310, the United States Supreme Court quoted with approval from Locke's App. 72 Pa. 491, as follows:
"`To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know.' The proper distinction the court said was this: `The Legislature cannot delegate its power *Page 477 to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and, must, therefore, be a subject of inquiry and determination outside of the halls of legislation.'" (Italics added.)
Again in Honolulu Rapid Transit L. Co. v. Hawaii (1908),211 U.S. 282, 290, 291, 53 L.Ed. 186, 188, the same court, in considering the law vesting in the governor and superintendent of public works the right to make rules and regulations for the maintenance and operation of a street railway, said:
"The business conducted by the transit company is not purely private. It is of that class so affected by a public interest that it is subject, within constitutional limits, to the governmental power of regulation. This power of regulation may be exercised to control, among other things, the time of the running of cars. It is a power legislative in its character, and may be exercised directly by the legislature itself. But the legislature may delegate to an administrative body the execution in detail of the legislative power of regulation. Reagan v. Farmers' Loan T. Co. 154 U.S. 362, 393, 394, 38 L.ed. 1014, 1022, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Interstate Commerce Commission v. Cincinnati, N.O. T.P.R. Co. 167 U.S. 479, 494, 42 L.ed. 243, 251, 17 Sup. Ct. Rep. 896. We need not consider whether that legislative power may be conferred upon the courts of the territory, as it may be upon the courts of a state, so far as the Federal Constitution is concerned. Prentis v. Atlantic Coast Line Co. 211 U.S. 210, ante, 150, 29 Sup. Ct. Rep. 67. In this case the legislative power of regulation was not intrusted to the courts. On the contrary, it was clearly vested, by § 843, in the governor and the superintendent of public works. . . ." (Italics added.) *Page 478
The right of the Legislature to delegate legislative functions or powers which are not exclusively essential legislative powers has often been recognized. The power of taxation is recognized as legislative. "The taxing power is a legislative function, and the fixing of levies, the assessment of property and collection of taxes is generally considered and spoken of as administrative action which is an incident of the legislative power." (Italics added.) Peden et al. v. Board of Review of Cass County (1935), 208 Ind. 215, 220, 195 N.E. 87. Under § 60-319 Burns' 1943 Replacement, the State Board of Finance, an administrative agency, has the right to fix and determine the state levy. This practice has never been successfully questioned in this state.
Numerous decisions recognizing the authority of the Legislature to delegate legislative functions to administrative agencies have occurred in cases regulating public utilities.
In Southern Ind. R. Co. v. Railroad Com., etc. (1909),172 Ind. 113, 123, 87 N.E. 966, this court said:
"The decisions seem to hold that, as the state legislature possesses the power to regulate the business of railroads, it may delegate that power to a commission, or other administrative body, and what such administrative agent does, within the powers with which it is endowed, is as valid and conclusive as if done by the legislature itself. Atlantic Coast Line R. Co. v. North Carolina Corp. Com., supra, and cases cited on page 19; Southern R. Co. v. Railroad Com., etc., supra; Joyce, Franchises, § 381." (Italics added.)
In Chicago, etc., R. Co. v. Railroad Com., etc. (1911),175 Ind. 630, 643, 95 N.E. 364, where the appellant contended the statute creating the Railroad Commission of Indiana was in conflict with Article 3 of the *Page 479 Indiana Constitution, the court quoted with approval Prentis v.Atlantic Coast Line Co. (1908), 211 U.S. 210, 53 L.Ed. 150, 29 Sup. Ct. 69, as follows:
"`But we think it equally plain that the proceedings drawn in question here are legislative in their nature, and none the less so that they have taken place with a body which at another moment, or in its principal or dominant aspect, is a court such as is meant by § 720. . . . The establishment of a rate is the making of a rule for the future, and therefore is an act legislative not judicial in kind.'" (Italics added.)
Again in State ex rel. v. Lewis (1918), 187 Ind. 564, 568, 569, 120 N.E. 129, this court clearly recognized the nature of such regulation in the following language:
"The real question for decision involves an examination of certain sections of the act of 1913, supra (§ 10052a et seq. Burns' 1914), creating the Public Service Commission, and to which it must look for its duties and its authority. The Public Service Commission is not a legislature, although when exercising its rate-making power it is performing a legislative act. It is not a court, yet in certain matters its acts, in a sense, are quasi-judicial. More strictly speaking, it is an administrative body, charged with ministerial and in some instances with legislative duties (4 R.C.L. 623); or, in other words, it is a legislative agency, assumed to be qualified by knowledge and experience to regulate the public utilities of the state with reasonable fairness and substantial justice, not only to the public, but to the utility as well. Such is the theory of the law, and, unless conscientiously administered, its purpose is destroyed." (Italics added.)
In City of Logansport v. Public Service Comm. (1931),202 Ind. 523, 533, 177 N.E. 249, this court again held: *Page 480
"The regulation of rates to be charged by public utilities is properly the function of the legislative department of the state government, under its police power, Pond, Public Utilities (3d ed.) 519-520; Winfield v. Public Service Commission, supra; City of Washington v. Public Service Commission (1921), 190 Ind. 105, 129 N.E. 401; Hockett v. State (1885), 105 Ind. 250, 5 N.E. 178; Smyth v. Aymes (1897), 169 U.S. 466. . . ." (Italics added.)
The right of the Public Service Commission to establish reasonable rates as a legislative function was acknowledged inIndianapolis Water Co. v. Moynahan Prop. Co. (1935),209 Ind. 453, 454, 198 N.E. 312, in which the court said:
". . . Rate making is a legislative function in which the courts are not concerned so long as rights guaranteed by the Constitution are not invaded, except to see that delegated powers are lawfully exercised. . . ." (Italics added.)
The right of the Legislature to delegate legislative power to the Department of Financial Institutions of Indiana was affirmed by this court in Financial Aid Corporation v. Wallace (1939),216 Ind. 114, 120, 23 N.E.2d 472, in which the court clearly stated legislative power has been delegated as follows:
"As pointed out in Blue v. Beach, supra, the Legislature cannot delegate the power to make a law, but it can make a law to delegate a power to determine facts upon which the law makes its own action depend. . . ." (Italics added.)
This court should not give the word "functions" as used in § 1 of Article 3 of the Constitution one sort of meaning in one class of cases, and an entirely different meaning in this appeal. Admittedly, the term as used in the Constitution is not exact but previous cases *Page 481 of this court by decisions have interpreted the word "functions" to mean a necessary, essential, and exclusive official power and duty of the state. In view of these decisions the case of Saint v. Allen, supra, has no persuasive value in the construction of our own particular constitutional provision.
The fallacy of the Saint Case is that it adopts the written philosophy of Montesquieu, Madison and Jefferson as a major premise for syllogistic mathematical logic. Constitutional provisions when so interpreted soon become an absurdity. The Saint Case is a typical example of the oft quoted maxim "hard cases make bad law." Baldly stated, it reasons that whatever should be the Constitution, therefore is the Constitution. No process could be better calculated to destroy any written Constitution. No written Constitution can be the common law subject to expansion or contraction by court made law. It is often of value to determine the reason behind any constitutional provision, but the statements of the contemporaries for the reasons do not become the written words as adopted in the Constitution. The danger always lies in making such reasons the sole and exclusive standard for interpretation. The statement of the court that, "`The words "exercising power," speaking officially, mean perform duties or functions,'" is not supported in the case by either reason or authority. Certainly the word "function" as many times decided by the Indiana cases, supra, does not have the meaning used in the Saint Case.
Nor do the cases interpreting criminal statutes of other jurisdictions furnish any persuasive precedent for the construction of our Indiana Constitution. The case of People v.Salomon (1914), 212 N.Y. 446, *Page 482 106 N.E. 111, involved a criminal statute wherein the Legislature prohibited acts which interfered with the administration of government. Even in this case two of the judges dissented, and a third did not participate. The General Assembly of Indiana could pass an act making it a penal offense to interfere with any function of state government, and make it clear, either from the context of the act or by a specific definition of the term, that the word "function" would mean any act whatever concerned with government, but in this appeal we are not dealing with a statutory definition of the word "functions." The Legislature in this case could have prohibited by statute any one of its members from being an employee either of the legislative or executive department of the state, but it has not done so, and this court has no business engaging in judicial legislation in the matter. Within the past generation this court has too often engaged in judicial legislation by nullifying the plain meaning of statutes or by giving them a meaning in violation of the clearly expressed legislative intent.
Since People v. Salomon, supra, did not deal with an interpretation of separation of powers under the Constitution of New York, its value as a precedent for the purposes of this appeal is absent. However, when the Court of Appeals of New York did deal with a constitutional question of the separation of powers, it held that legislative functions could be delegated to administrative agencies.4 In considering Chapter 737 of the Acts of 1905 of the State of New York, which delegated to a commission the authority to determine *Page 483 the maximum price to be charged for services by gas and electric light companies, the court said:
". . . This review of the course of legislation and of the judicial authorities in this state, I think, clearly shows that while powers inherently and exclusively legislative cannot be delegated, there is a large field in which the legislature, to quote Chief Justice Marshall's words, `may certainly delegate to others powers which the legislature may rightfully exercise itself.'" Vil. of Saratoga Spgs. v. Saratoga G., etc., Co. (1908), 191 N.Y. Rep. 123, 138.
This case was approved in People ex rel. C.P., etc. R.R. Co. v.Willcox (1909), 194 N.Y. Rep. 383, 386, 87 N.E. 517, which interpreted the prior case to hold, "that the function of rate making could be devolved by the legislature upon other officers, but that the very question of what rates are reasonable could be given a judicial or quasi judicial aspect."
The facts in State ex rel. Barney v. Hawkins et al. (1927),79 Mont. 506, 257 P. 411, are very similar to those involved in this appeal. Mr. Justice Myers, speaking for the court, summarized the facts as follows:
"Grant Reed is and, at the time of the commencement of this action, was a representative in the Montana legislature. His term of office as representative will expire, at noon, the first Monday in January, 1929. By appointment of the Board of Railroad Commissioners of Montana, made while he was a representative in the legislature, Reed is and, at the time of the commencement of this action, was holding a position designated as auditor for the Board of Railroad Commissioners and its ex-officio commissions, at a salary, fixed by the board, of $225 per month, which he is and has been and, at the time of the commencement of this action, was drawing from the state of Montana, for his services as such auditor; except that he did *Page 484 not fill such position of auditor or draw the salary thereof while sitting and serving as a representative during the recent session of the legislature but resumed his position of auditor at the end thereof."
Article 4 of the Constitution of Montana provided:
"The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted."
A taxpayers suit was commenced to enjoin payment of Reed's salary during the remainder of his legislative term. The court held that Reed did not violate the constitutional prohibition since he was only an employee. In the conclusion of the case the court said:
". . . we hold that Grant Reed does not hold a civil office under the state; that the position he holds does not possess a delegation of a portion of the sovereign power of government. In our opinion, he is only an employee; holding a position of employment, terminable at the pleasure of the employing power, the Board of Railroad Commissioners. We hold this appointment not violative of section 7 of Article V of the Constitution. That being the case, he has, in himself, by virtue of his appointment, no powers properly belonging to the judicial or executive department of the state government, for he is wholly subject to the power of the board, and, having no powers, he can exercise none; and, therefore, his appointment was not violative of Article IV of the Constitution."
The difficulty with the majority opinion is that it seeks to impose upon the various members of the Legislature of this state ethical standards for impartiality *Page 485 which are properly required only of the judiciary. Moreover, it ill becomes this court to dictate to any member of the Legislature or a member of the executive department what his public ethics should be. This is a violation by this court of the very prohibition contained in Article 3 for the separation of powers. As early as 1856 this court in Wright v. Defrees (1856), 8 Ind. 298, held that the judiciary department could not investigate the motives of the Legislature even when fraud was charged in the enactment of a bill. This court again held, ". . . To institute such an inquiry would, as said in Wright v.Defrees, be a direct attack upon the independence of the legislature, and an usurpation of power subversive of the constitution." McCulloch v. The State (1858), 11 Ind. 424, 431. A fortiori this court has no business in prescribing any standard of ethics for members of the General Assembly.
The legislative branch of the government was never intended to act with judicial impartiality. According to the 1948 official roster of state officials, the members of the 85th General Assembly had a great diversity of occupations. This is a desirable representation for the people. It is not necessary to list all of the various occupations, but among the members were 44 engaged in agriculture, 14 as merchants, 32 as lawyers, 5 as editors or publishers, and 4 in manufacturing pursuits. Could this court say that these various members would be disqualified to vote on any proposed legislation affecting their particular vocations? The matter of taxes may affect the pocketbook of each legislator, but he is not disqualified to vote for that reason. The value of the services of a legislator depends upon his lifetime experience, which includes what he has learned in the operation of his business or profession, and he is not *Page 486 disqualified to vote according to any standard of ethics adopted by any other department of government.
Moreover, the modern philosophers of government in this country have generally thought that the growth and vitality of our two party system was desirable for the maintenance of our republican form of government, in that it prevented the rise of numerous party organizations and blocks, such as was evidenced in France where approximately fifty political blocks were in evidence before World War II, which paved the way for the destruction of liberty. The legislator has a direct interest in his party platform and program, and the chief executive either of this state or nation, is generally regarded as the titular head of his party, who may properly exert strong influence in molding party policy, though he should not demand an abdication of legislative discretion. When the legislator is elected, he is expected to support, as a legislator, his general party principles, for that is the manner in which the citizens, in whom the ultimate power of government is vested, may govern themselves. The Governor "shall, from time to time, give to the General Assembly information touching the condition of the State, and recommend such measures as he shall judge to be expedient." Section 3, Article 5, Constitution of Indiana. The Governor does not recommend to the courts, "such measures as he shall judge to be expedient." Our scheme of government calls for a free, independent and impartial judiciary, but the Legislature is not a court, and its members in enacting statutes are not acting in a judicial capacity. They may properly take into consideration interests of the executive as well as the legislative department which are political in nature. The fact that an act of the Legislature offends the thinking of the court as not being an impartial political *Page 487 policy should not be weighed by or influence the court.
The inescapable conclusion of the holding of the majority opinion is that the word "functions" as used in Article 3 of the Constitution means any act in behalf of or concerning government, which is done within the framework of its organization, whether it be an exercise of the highest sovereign power or the menial task of sweeping the floor. Such an interpretation was never intended by the forefathers who drafted the 1851 Constitution, and until this appeal there has been no such construction either by this court or by the practice of the officials of this state. When a public official of an administrative agency exercises a legislative function delegated to him by the General Assembly of Indiana, under the many authorities above discussed, his acts are valid and constitutional, but if the word "functions" means any act official or otherwise, his acts would be invalid. None of the relators exercised any of the sovereign power of government as mere employees of their respective administrative departments. If they had exercised acts of sovereignty, they would have been public officers, for a public officer is one who exercises some part, however small, of the sovereign power of government. None of them fixed or determined any policy of their respective departments. They exercised no official discretion. They were mere mechanical aids for other public officers in charge of their departments. Not only did they not, as public employees of their respective administrative departments, exercise any of the necessary or exclusive powers or functions of their various state departments, but they did not exercise any official power or duty whatever, for as before stated, if they had they would have been all public officers. They did *Page 488 not exercise any "function" of state government. The conclusion is manifest that the employment of each relator did not violate § 1 of Article 3 of the Constitution.
The only remaining contention to be considered concerns the availability of an action of mandamus against the Auditor of State. In Rice, Auditor of State, v. State, ex rel. Drapier (1884), 95 Ind. 33, 44, this matter was settled in favor of the relators. The court held that such an action was not prohibited as a suit against the sovereign without its consent. The court said:
"Whenever the money necessary to pay a particular claim against the State has been appropriated by the Legislature, and the amount of the claim has been definitely ascertained in a manner prescribed by law, a refusal by the auditor of state to draw his warrant upon the treasurer of state for the payment of the claim will authorize the interposition of the courts by appropriate mandatory proceedings. In such a case it is not a sufficient objection that such proceedings afford an indirect method of suing the State. In general, however, since a State can not be sued in its own courts without its own legally expressed consent, the remedy by mandamus is not to be extended so as to become in effect a process against the State for the establishment of demands of an unliquidated nature, which properly fall within the cognizance of the Legislature. High, Extraordinary Legal Remedies, section 100, et seq."
See also Wolfe, Auditor of State v. The State ex rel. Kennard (1883), 90 Ind. 16.
In this appeal each claim for salaries of the relators is liquidated, appropriations are available, no objection has been made to the correctness of the claim except on a constitutional ground, and nothing remains to be done regarding any discretion on the part of the *Page 489 Auditor of State. For these reasons I feel the judgment of the trial court should be reversed.
NOTE. — Dissenting Opinion reported in 80 N.E.2d 560.
1 § 49-302 Burns' 1933 (Supp.), Acts 1941, ch. 16, § 1, p. 49.
2 The value of a contemporaneous construction "proceeds upon the presumption that the contemporaries of the constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the constitution, and of the sense put upon it by the people when it was adopted by them; . . ." Ogden v. Saunders (1827), 12 Wheat 213, 290, 6 L.Ed. 606, 632.
3 "`. . . But the founders were too intensely practical to be controlled by any political theory, and, while they recognized the principle in constructing the framework of the government, they violated it in practice and so distributed the powers as to create a system of checks and balances. See Mason, Veto Power. The principle formulated by Montesquieu still lies at the base of most political organizations of the present day, but during the last century the tendency of political science has been to discard it in its extreme form, because, as said by Goodnow: "It is incapable of accurate statement, and because it seems to be impossible to apply it with beneficial results in the formation of any concrete political organization. The flaw in Montesquieu's reasoning and in that of his followers was in the assumption that the expressions of the governmental power by different authorities were different powers." Goodnow, Adm. Law, 20, 21. The recent tendency of legislatures and courts is commented on by Justice Brown in State ex rel. Jonason v. Crosby (1904), 92 Minn. 176, 99 N.W. 636. The present attitude of the courts towards questions arising under this constitutional provision is well expressed by the supreme court of North Carolina: "While . . . the executive, legislative, and supreme judicial powers of the government ought to be forever separate and distinct, it is also true that the science of government is a practical one. Therefore, while each should firmly maintain the essential powers belonging to it, it cannot be forgotten that the three co-ordinate parts constitute one brotherhood, whose common trust requires a mutual toleration of the occupancy of what seems to be a `common because of vicinage' bordering on the domains of each." Brown v. Turner (1874), 70 N.C. 93, 102.'" 79 L.Ed. 477.
4 Separation of powers under the Constitution of New York are as follows: "The legislative power of this state shall be vested in the Senate and Assembly." Article 3 of § 1, Constitution 1846; "The executive power shall be vested in a governor . . ." Article 4 of § 1, Constitution 1846, amended 1894.