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Sunday, December 10, 2006

Ind. Gov't. - An observation on a PROBE Report recommendation

Taking Down Words posted a copy of the Governor's PROBE report last week, access it here. What caught my eye was on p. 23 of the report (p. 26 if you go by the PDF numbering) - in the next to the last sentence on the page:

Consideration should also be given to allowing private trade organizations to certify and accredit professions and occupations.
Interesting idea. Here is what the Indiana Supreme Court remarked in 1941 about a similar plan:

[The Indiana Constitution] has vested all of the governmental power, which was not reserved in the sovereign people, to a government consisting of three departments, and it has left no discretion in the Legislature to distribute governmental power outside of those three departments.

It is true that the Legislature may create new offices within the departments, and provide for the selection of officers to operate those offices, but it is unthinkable that the Legislature may have discretion to vest a part of the sovereign power in some agency outside the government, as set up and established by the Constitution.

The appointment to office is universally held to be an exercise of the sovereign power. The State Dental Association is a private nongovernmental agency. It was chartered, it is true, by the State, as other private corporations are chartered, but its officers and membership are privately selected. It is said that the corporation is composed of practicing dentists, organized for the promotion of scientific knowledge and skill in the practice of the profession, and well informed on the subject, and possessing a peculiar interest in the profession.

But the court may not weigh considerations of wisdom and expediency for the purpose of determining the constitutionality of legislative action. If the Legislature has power to go outside of the government established by the Constitution and confer governmental power elsewhere, then the discretion as to where it will be vested, and the determination of the expediency of the investure in one place rather than another, is for the Legislature and not for the courts.

If the Legislature should attempt to invest the State Dental Association with power to appoint members of the State Highway Commission, the courts could not hold the statute unconstitutional because in their judgment it would have been wiser to vest that power in an association of highway engineers. Such an enactment could only be stricken down upon the ground that the Legislature had no constitutional power to vest a governmental function elsewhere than in one of the three departments of the government created by the people in their Constitution. * * *

The Legislature has set up monopolies in the public utility field for the public good, but this does not justify the conclusion that it may vest in a public utility corporation power to appoint the members of the Public Service Commission, nor that it may vest in a labor union power to appoint members of the Workmen's Compensation Board.

Whether the result reached in the Overshiner case, supra [Overshiner v. State 1901, 156 Ind. 187, 59 N. E. 468, 83 Am. St. Rep. 187, 51 L. R. A. 722)], was correct upon the ground that the members of the board appointed by the Dental Association were commissioned by the Governor, and hence became his appointees if the appointment by the Dental Association was void and of no effect, or whether the members of the board, being de facto officers, the legality of their appointment could not be collaterally attacked, we need not decide.

It may be assumed that the result reached in the case, the affirmance of a conviction in a criminal case, was correct, but we cannot approve of the view expressed in the opinion that the Legislature has authority to delegate sovereign governmental powers to agencies outside of the government established by the people in the Constitution. The views expressed in the opinion are squarely in conflict with the many cases above referred to, which confine the legislative discretion in providing for appointments within the provisions for division and delegation of the governmental powers, and it is in conflict with the case next discussed.

Tucker v. State, 218 Ind. 641 at 697-699 (Filed June 26, 1941. Rehearing denied July 11, 1941)

Posted by Marcia Oddi on December 10, 2006 10:02 AM
Posted to Indiana Government