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3. A town incorporated, by special act of the legislature, prior to the taking effect of the constitution of 1851, was empowered by its charter to purchase fire engines. Its charter being amended, in 1873, such power was omitted. Non obstante this, the town had the inherent power to make such purchase, for the protection of property; Corporation v. Studa baker, 106-131.

4. The federal congress, in so far as it legislates for the United States, can not incorporate a private corporation. It may do so as a local legislature of the district of Columbia; Daly v. Nat. L. I. Co., 64-1.

ARTICLE 11 – CORPORATIONS. 212. General laws. This section, providing that “. corporations, other than banking, shall not be created by special act, but may be formed under general laws,” construed in connection with other provisions of the constitution, intends that on and after November 1, 1851, the legislature should have neither authority nor power, by special act, to create, originate or bring into existence, as a new corporate entity, a municipal corporation where none had theretofore existed. On and after the day named, the legislative power of the general assembly was limited, by this provision, to the enactment of a general law under which such new corporate entity might be formed. Section 235, clause 4, being clause 4 of the schedule annexed to and a part of the constitution provides, "that no inconvenience may arise from the change in the government, it is hereby ordained as follows: * * Fourth. All acts of incorportion for municipal purposes shall continue in force, under this constitution, until such time as the general assembly shall, in its discretion, modify or repeal the same.”. Under this clause, the general assembly is expressly authorized, by and under the discretionary power to * modify," to amend, by special or general act, an act of incorporation, or special charter, for municipal purposes, continued in force by the section, even where the effect of the amendment will be to enlarge the jurisdiction, territorially or otherwise, of the corporate authorities of the municipality; Wiley J. Bluffton, III-155.

ARTICLE 13 — MUNICIPAL DEBT. 220. Limited - Excess void. It is essential to the idea of a debt that an obligation should have arisen out of a contract, express or implied, which entitles the holder thereof unconditionally to receive from the promisor a sum of money which the latter is under a legal or moral duty to pay without regard to any future contingency. Under this section of the constitution the statute of March 8, 1889, which authorizes the issue of bonds, or certificates in pursuance of the statute, “ an act concerning powers and duties of cities and incorporated towns providing the mode and manner of making street and alley improvements," etc. does not create a debt within the inhibition hereof, declaring as it does, that no municipal corporation shall become indebted to an amount in excess of two per cent. of its taxable property. The bonds issued by the city, for the purpose of raising money with which to pay for the improvement, or issued to the contractor in payment for the work, bear the name of the street or alley improved or sewer constructed, and are payable from the special street improvement fund to be accumulated from assessments made against the property benefited. Hence, no indebtedness arises against the city. Assesments for street improvements are upheld on the ground that the adjacent property on which the cost of the improvement is assessed is enhanced in value to an amount equal to the sum assessed against it and that the owners have received peculiar benefits which the citizens do not share in common. The municipality, as such, is not benefited by the improvement and there is, hence, under the law in question, neither a legal nor moral obligation to pay. The municipal corporation becomes liable to pay in cash the expense of so much of street and alley improyements as shall be occupied by the street and alley crossings, upon the completion and final estimate of the work anci, hence, no debt results from such improvement; Quill v. Indianapolis, 124–293.

220. Municipal debt - Limited. This article is, only, prospective. It will not prevent such corporations from issuing new bonds, with coupons for future


interest, for the purpose of funding debts, with accrued interest, existing prior to March 14, 1881, the date of its adoption; Powell v. City Madison, 107–115.

2. The only effect which the adoption of this constitutional amendment had, upon sections 3230–1, as to finding the indebtedness of cities and towns, was to limit their application to debts contracted prior to March 14, 1881, and to such as have been since incurred not in excess of the two per centum limitation, upon the value of their taxable property; Powell v. City Madison, 107–116.

3. A city cannot issue bonds, for current expenses, where there are no funds in the treasury and the existing indebtedness exceeds two per centum of the value of the taxable property of the city; Sackett v. New Albany, 88-473.

4. A city, being indebted to an amount equal to two per centum of its taxable property, is, under this section, prohibited from issuing an order on its treasury, even for current expenses, where there are no funds in the treasury which may be applied to its payment. It may be enjoined from issuing such an order, when one is about to be issued and no provision has been made for its payment; Sackett v. City N. Alb., 88-475.

5. When a contract, made by a municipal corporation, pertains to its ordinary current revenues and is, together with other like expenses, within the limit of its current revenues and such special taxes as it may lawfully, and in good faith, intend to levy therefor, such contract does not constitute the incurring of an indebtedness, within the meaning of this section. If the contracts and engagements of municipal corporations do not overreach the current revenues, no objection can, lawfully, be made to them, however great the indebtedness of such municipality may be; City Valparaiso v. Gardner, 97-11.


221, 222. Boundaries — Jurisdiction. Where the Ohio river constitutes the boundary between the states of Kentucky and Indiana, low water mark on the north side of the river is the southern boundary of the state of Indiana. Under these sections of the constitution, however, and an act of Virginia, entitled "an act concerning the erection of the district of Kentucky into an independent state" (1 R. L., Va., p. 57, R. S., 1888, addendum, p. 9) the state of Indiana has concurrent jurisdiction in civil and criminal cases with the state of Kentucky on the Ohio river, so far as the river forms the common boundary between said states.

So, where a violation of the criminal laws of this state occurs on the Ohio river it is proper to charge in the indictment that the offense was committed in the county opposite the place where the act constituting the crime was committed. Hence, where intoxicating liquors are sold without license in a boat anchored in the Ohio river opposite Harrison county, Indiana, south of low water mark on the Indiana side, the offender may be charged, tried and convicted in Harrison county, Indiana; Welsh v. State, 126–74.

221. State boundaries. Low water mark, on the north west side of the Ohio river, is the true line for the purpose determining the boundaries with Kentucky; Sherlock v. Alling, 44-184.

2. The boundary of Spencer county, on the Ohio river, extends no further than to low water mark on the Indiana side; Carlisle v. State, 32–55; so, also, of Jefferson county; Cowden v. Kerr, 6 B., 280; also, of lands bounded by the Ohio river; Stinson v. Butler, 4 B., 285; Bainbridge v. Sherlock, 29-364.

222. Jurisdiction. The states of Indiana and Kentucky have concurrent jurisdiction on the Ohio river, where it is the boundary line of both; Sherlock v. Alling, 44-184. This jurisdiction may be exercised in such manner as this state may elect, in civil and criminal cases. It has elected to exercise such general jurisdiction and it is not limited to service of process. Its general legislation is in force, not only within the territory over which it has exclusive jurisdiction, out, also, where its jurisdiction is concurrent, without any special provision of statute, unless the contrary appears; Sherlock v. Alling, 44-184; Carlisle v. State, 32-55.

The courts, in the counties bordering on the Ohio river, have concurrent jurisdiction, with courts of Kentucky, over crimes committed on the river opposite; Carlisle v. State, 32-55.


ARTICLE 15 — MISCELLANEOUS. 223. Oficial appointments. The provision 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" is to be construed in the light of the laws in force at the time of its adoption and as the power to provide, by law, the manner or mode of making an appointment does not include the power to make the appointment itself, it is a limitation on the power of the legislature to make any appointment except such as it might make under laws existing at the date of the adoption of the constitution; State, ex rel. v. Denny, 118–386.

Under this section of the constitution, providing for the appointment of officers not otherwise provided for by the constitution, no appointing power is conferred on the general assembly, save and except as to offices in existence when the constitution became of effect and operative. Where the constitution does not provide otherwise, for the filling of a vacancy in an office, the legislature may provide the manner in which it shall be filled. Unless, however, it shall be in the case of an officer created for the purpose of enabling some one of the co-ordinate departments the better to perform its functions, the power of appointment must be lodged with the executive department; State, ex rel. v. Hyde, 121–36.

This section giving the general assembly power to prescribe, by law, the manner of electing an officer does not confer the powers to elect such officer. There is a manifest distinction between providing the mode of doing and doing the thing itself; State, ex rel. v. Peele, 121-506; State, ex rel. v. Denny, 118-449; Evansville v. State, ex rel., 118-426; State, ex rel. v. Denny, 118-382.

This section has no application to any administrative state office in existence at the time of its adoption; administrative state offices having been made elective by the people by the terms of the constitution, It does apply, however, to most of the statutory state officers. The general assembly on creating an office may provide by law, under this section, that such offices shall be filled by election or by appointment; which appointment -- if the law so directs — may be made by the governor or by an administrative state officer. The legislature, however, may not create an administrative state office and provide for filling the same by appointment indefinitely, this section having no application to this class of state officers; State, ex rel. v. Gorby, 122–24.

224. Duration of office. The provision hereof that "the general assembly shall not create any office the tenure of which shall be longer than four years, does not affect the right of an officer elected by the general assembly for a term of four years to an office created by the legislature to hold over under the provision of section 225; State, ex rel. v. Harrison, 113–440.

2. Prosecuting attorney of the criminal court is not the prosecutor of the constitutional circuit court. His term of office is not fixed, but cannot exceed four years; Cropsey v. Henderson, 63–268. See vide section 1367 which provides that "the prosecuting attorney of the circuit shall, by himself or his deputy, prosecute the pleas of the state in said court."

225. Holding over. The effect of this provision is more than to supply the office until an executive appointment can or shall be made with a person qualified to discharge its duties. It adds an additional contingent and defeasible term to the original fixed term and excludes the possibility of a vacancy and, consequently the power of appointment, except in case of death, resignation, ineligibility or the like. When it is provided that officers chosen for a given term are entitled to hold over until their successors are elected and qualified, the section applies to officers elected by the general assembly, or other organized body, equally as to those elected by the people at large, and the right to hold over continues until a qualified successor has been elected by the electoral body to which the incumbent owes his election, or which, by law, is entitled to elect a successor. So, where by section 2768a the statute of 1883 (S., p. 15), relating to the management of the benevolent institutions of the state, provision was made for the election by the legislature of a president of the several boards of trustees, whose term of office should be four years, and that if a vacancy should occur in such office during the recess of the legislature, the governor should appoint, the appointment to stand until the next session, and the term of the officer elected in 1883 expired during the legislative session of 1887, but the body adjourned without electing a successor, it was held that, under this section, the incumbent became entitled to hold over, and, there being no vacancy, an appointment by the governor (144) was of none effect; State, ex rel. v. Harrison, 113-441.

When an office is created by law, to be filled immediately, no legitimate mode for filling the same being provided, the office is vacant on the taking effect of the law, and the governor may fill such vacancy by appointment; State, ex rel. v. Gorby, 122-28. 226. Officer holding over.

Where an officer is elected his own successor, has received his commission and does not qualify, in proper time, the incumbent may continue to serve or abandon the office; Baker 0. Wambaugh, 88–315.

2. Where one is elected county cominissioner and qualifies, by taking the oath required by law, and dies before his term begins, his predecessor can not, lawfully, hold over; State 7'. Bemenderfer, 90-376.

3. Where one has held, by election, the office of clerk of the circuit court for eight years consecutively, he can not hold over on the death, without qualifying, of the person elected to succeed him. On the contrary, upon the expiration of the period of eight years, a vacancy arises, which the board of commissioners may fill, by appointment; Gosman v. State, 106-205.

226. Official oath. An oath need only be subscribed when the statute requires it; Hays v. Parrish, 52–132.

2. A supervisor, by failing to take the oath, within the time prescribed by law, does not vacate his office. If no steps be taken to declare and fill the vacancy and the officer shall, subsequently, qualify, he will hold the office; State v. Cronkite, 8-134.

228. Commissions. The governor may determine whether, or not, an applicant is entitled to receive a commission under the constitution. If he shall ascertain that he has commissioned a person who is ineligible to office he may issue another commission to the person, lawfully, entitled thereto; Guliek ?'. New, 14-93.

2. A mistake or error in the commission of a constitutional officer does not change the commencement or termination of his term of office; Moser v. Long, 64-189.

3. A commission is, only, prima facie evidence of its own recitals; Board etc. v. State, 61-379. It can not extend, by any facts therein stated, the term of an office, as fixed by law; State v. Chapin, 110-276.

230. Lotteries prohibited. The territorial grant of lottery franchises, to Vincennes university, of September 17, 1807, was a vested right and a matter of contract, which might not be impaired, under the federal constitution, by either state constitution or law; Kellum v. State, 66–588.

2. The provision of this section, is in restraint of legislative authority to author. ize lottery schemes in the state, or the sale of tickets, in schemes beyond the state, within the state; Riggs v. Adams, 12-199.

3. A state may, in the exercise of its police power, and, in the interest of good morals, take away and abrogate a lottery privilege, previously granted, without impairing the obligations of a contract; State v. Woodward, 89–113.

4: The lottery privilege conferred on the Vincennes university, by the territorial legislature, in 1807, was taken away by this section and the statute (sect. 2077) makes the sale of lottery tickets a crime; State v. Woodward, 89-115.

233. Amendments to constitution - How made. Under the provisions of this section, it will not suffice, to make a proposed amendment to the constitution that more votes, in favor of it, shall be cast than the number of votes cast against it, when the number cast in favor of it was not a majority of votes cast at the election held, at that time. The constitution must remain as it was, without amendment, until it shall, affirmatively, appear that the amendment proposed has been ratified by a majority of the electors of the state, who voted at the election; State v. Swift, 69-505.

2. Amendments proposed, having been once submitted and not ratified by a majority of the electors, who voted at the election, may be re-submitted for a ratifi. tion; State v. Swift, 69-505.

235. Schedule, to constitution. The charter granted to the city of Evansville, by act of 1847, was continued in force, as an entirety, with the reserved power of amendment and repeal, by clause 4. Wherefore, a statute of March 7,

1873, amending certain sections of such charter, was constitutional; Warren v. City Evansville, 107–107. 2. A town incorporated by special act of the legislature, prior to the taking effect of the constitution of 1851, had power, under its charter, to purchase fire engines. Its charter was, lawfully, amended in 1873; but, the power was omitted. The town had power (inherent) to make such purchase; Corporation v. Studabaker, 106-131.

3. Statute amending the charter of Clarksville, so far as it authorizes the new trustees, for which it provides, to sue for and receive the funds derived from the sale of lots, under the charter of 1783, granted by Virginia (Stat., June 17, 1852), does not impair the obligation of any contract and is valid (clause 16); Frisbie v. Fogg, 78–276.

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