USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 35
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Judges from the Second and Third districts had to be elected in 1910 to succeed Judges Hadley and Montgomery. Judge Hadley was not a candidate, but Judge Montgomery was renominated without opposition at the Republican state convention on April 4. There were three candidates for the position on the ticket to succeed Judge Hadley: Charles Moores, of Indianapolis; Frank Roby, of Indianapolis, and Robert W. Miller, of Franklin, the latter winning on the second ballot. The Democrats at Indianapolis, April 28, nominated Douglas Morris, of Rushville, for the Second district. His only opponent was J. K. Ewing, of Greensburg. From the Third district, Charles E. Cox, of Indianapolis, was nominated over Charles E. Barrett, of Indianapolis, D. J. Heffron, of Indianapolis, and William V. Hooker, of Noblesville. Cox was nominated on the first ballot.
Judge Charles E. Cox, a member of the Supreme bench since January 1, 1911, was born in Hamilton county, Indiana, February 21, 1860. He was educated in the common and high schools of Hamilton and Tipton counties. He came to Indi- anapolis in 1879 and has made the city his home since that time. He is a brother of Jabez Cox, Judge of the Miami Cir-
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cuit court from 1896 to 1908, and of Millard F. Cox, Judge of the Criminal court of Marion county from 1890 to 1894. Judge Cox commenced the study of law while acting as clerk to Judge William E. Niblack, Judge on the Supreme bench from 1877 to 1889, and completed his legal education and was admitted to the bar while serving as librarian of the state law library from 1883 to 1889. He was deputy prosecuting at- torney of Marion county from 1890 to 1894 and in the fall of the latter year was elected city judge of Indianapolis, serving as such from 1895 to 1899. He then opened a law office and continued in practice until he took his seat on the Supreme bench on January 1, 1911. Judge Cox married Emma M. Cooley, of Indianapolis, June 10, 1884, and has three children, Eleanor M., Samuel L. and Charles E., Jr.
Douglas Morris, a member of the Supreme bench since 1911, was born at Knightstown, Indiana, January 5, 1861, a son of John and Hannah (Scovell) Morris. After completing his elementary education in the public schools, he entered DePauw University, graduating in 1882 with the degree of Bachelor of Arts. He then began the study of law, was ad- mitted to the bar in the following year and at once began the practice of his profession at Rushville. He was elected Judge of the Eighth judicial circuit in 1898 and served on the Circuit bench for a full term of six years. He then resumed practice and so continued until he was elected to the Supreme bench in the fall of 1910. Judge Morris married Pamela A. Spann, of Rushville, Indiana, October 6, 1892. He is a Demo- crat in politics and a Presbyterian in religion.
The Republicans in convention at Indianapolis, August 5, 1912, nominated Leander J. Monks for the Fourth district and Woodfin D. Robinson, of Evansville, for the First. Robinson had formerly served on the Appellate bench and his biography may be found there. The Progressives met at Indianapolis on July 31 and nominated Judge James B. Wilson, of Bloom- ington, for the First district and Theodore Shockney, of Union City, for the Fourth.
James B. Wilson, now practicing in Bloomington, Indiana, was born on a farm near Spencer, Indiana, February 22, 1859. He was educated in the common and high schools and Indiana
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University, graduating from the law department of the latter in 1892. He practiced in Bloomington until 1902, when he was elected Circuit Judge, serving twelve years. He is a Republican, a Mason, an Odd Fellow, a Knight of Pythias, an Elk and a Woodman. He married Ona Stephenson in 1884. They had two sons. The wife died June 7, 1910. Later Judge Wilson married Maude Showers.
Theodore Shockney was born in Wayne township, Ran- dolph county, September 16, 1852, a son of William P. and Jane (Frazier) Shockney. He spent his boyhood on the farm. being left an orphan at the age of ten. He was educated in the public schools and in the old college at Ridgeville. While teaching he studied law, part of the time under Gov. Isaac P. Gray. During 1877 he read law with Stanton J. Peelle at Indianapolis and in 1878 was admitted to the bar. He has always practiced at Union City. He has served in both branches of the General Assembly. In 1892 he was the Re- publican candidate for lieutenant-governor. On November 3, 1914, he was elected Judge of the Randolph Circuit court on the Progressive ticket and was the only Judge of his party to be elected in the state, defeating Alonzo L. Bales, Republican. On September 23, 1876, he married Emma Alice Keever. They have two children living, Don P. and Mary Lucille. His wife died March 26, 1913.
The Democrats were the first to make nominations in 1912, meeting for the purpose at Indianapolis on March 21. There were four candidates from the First district: John W. Spencer, of Evansville; John C. McNutt, of Martinsville; O. B. Harris, of Terre Haute, and Edwin Corr, of Bloomington. Spencer was nominated on the third ballot. From the Fourth district there were only two candidates, Richard K. Erwin, of Fort Wayne, and Fred S. Caldwell, of Winchester. Erwin was nominated on the first ballot. The Democratic ticket was elected and in January, 1913, Richard K. Erwin succeeded Judge Monks and John W. Spencer succeeded James H. Jor- dan, who died April 10, 1912. Judge Spencer had been ap- pointed April 15, 1912, to fill the vacancy caused by the death of Judge Jordan.
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John W. Spencer, chief justice of the Supreme court of Indiana, was born at Mt. Vernon, Indiana, March 7, 1864. He attended the Central Normal College and began the prac- tice of law at Mt. Vernon in 1885. He served as prosecuting attorney of Vanderburgh and Posey counties from 1891 to 1895. On November 9, 1911, Spencer was appointed Judge of the Vanderburgh Circuit court to fill the vacancy caused by the death of Judge DeBruler, and he served as Circuit Judge until April 15, 1912, when he resigned to accept a seat on the Supreme bench. Judge Spencer succeeded James H. Jordan, who died April 10, 1912, and was elected in the fall of the same year for a full term of six years.
Richard Kenney Erwin, a member of the Supreme court of Indiana, was born in Adams county, Indiana, July 11, 1860. He was educated in the district school and attended one term at Methodist College, Fort Wayne. He was admitted to the bar in 1886 and in 1891 was elected to the House of Repre- sentatives. He was re-elected in 1893. Erwin was county attorney of Adams county from 1889 to 1897, and Judge of the Twenty-sixth judicial circuit from 1901 to 1907. He was elected Judge of the Supreme court in 1912 by a plurality of 120,330, the largest ever given any Supreme Judge in Indiana.
Moses B. Lairy was born in Cass county, Indiana, August 13, 1859, and is a son of Thomas and Eliza (Barnett) Lairy. The father was a farmer and a native of Ohio. Moses B. Lairy was educated in the public schools of Cass county, and took up the profession of teaching. He attended school for a time at Valparaiso, Indiana. He began the study of law in the office of Chase & Fickle, and completed his law course at the University of Michigan, from which he was graduated in 1889. He was admitted to the bar in 1889. He was ap- pointed Judge of the Twenty-ninth judicial circuit in 1895. In 1896 he formed a partnership with Michael F. Mahoney, which continued until he was elected Judge of the Appellate court in 1910. He was elected Judge of the Supreme court in 1914.
The Supreme court has been called upon many times to pass on matters of fundamental significance to the state of Indiana as well as to its people. Changing ideals, both in
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morals and government, bring on crises which the Supreme court, as the highest judicial body of the state, has had to handle. The first two important questions both arose primarily in the domain of morals. These concerned lotteries and slavery. When Indiana was organized as a territory in 1800 and as a State in 1816, few people found any objection to lotteries. An act of September 17, 1807, provided a lottery as one of the sources of revenue for Vincennes University. Another act many years later authorized the use of a lottery to raise money to build a canal around the Ohio falls. The act of February 3, 1832, made the holding of a lottery a misde- meanor except the lottery be provided for by law. In the Constitution of 1850 (Article XV, Section 8) lotteries were absolutely prohibited. This, however, did not prevent the trustees of Vincennes University claiming the right under the original act of 1807 to operate their lottery. In pursuance of this right, the trustees, May 1, 1879, appointed five men to raise twenty thousand dollars by means of a lottery. One of these agents was indicted in Marion county and the case came in due time before the Supreme court. Justice James L. Worden, in the last opinion handed down by him, held that the constitutional provision meant what it said and prohibited all kinds of lotteries from operating in the state.
It would seem that the Ordinance of 1787 and the Consti- tution of 1816 were each specific and absolute on the subject of slavery in Indiana, but such was not the case. It was claimed that the Ordinance merely prohibited bringing more slaves into the territory and could not have the ex post facto power to liberate slaves already in the territory. Both the Ordinance and the Constitution were sought to be avoided by indenture laws. It is not proper here to enumerate the many attempts made both through Congress and the state Legis- lature to allow slaves to be held in the state. The first case in which the subject came for a ruling before the Supreme court was the State v. Lasselle (1 Blackford 60) and was de- cided at the July term, 1820. In this case Laselle had pur- chased Polly, a slave, from the Indians before the treaty of Greenville and, so it was argued, before the United States had any jurisdiction over it. In the trial before the Knox county
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Circuit court the slave had been awarded to Lasselle. Amory Kinney, Moses Tabbs and George McDonald appeared before the Supreme court for the state and Jacob Call represented Lasselle. The opinion was by Justice Scott. The concluding lines of his decision, in answer to the claim that all previous rights of the settlers of Vincennes were still enjoyed by them, will show the ground of the reversal: "We are told that the constitution recognizes pre-existing rights which are to con- tinue as if no change has taken place in the government. But it must be recollected that a special reservation cannot be so enlarged by construction as to defeat a general provision. If this reservation were allowed to apply in this case it would contradict and totally destroy the design and effect of this part of the Constitution. And it cannot be presumed that the Constitution, which is the collected voice of the citizens of Indiana, declaring their united will, would guarantee to one part of the community such privileges as would totally defeat and destroy privileges and rights guaranteed to another. From these premises it follows, as an irresistible conclusion, that, under our present form of government, slavery can have no existence in the state of Indiana."
Such language, it seems, would leave little hope for slavery ever to get a foothold in the state, but it was only a short time before the Supreme court was again called upon to rule on this question. In November term, 1821, the case of Mary Clark came up on appeal from Knox (1 Blackford 122). Mary on this question. In 1 Blackford 122, November term, 1821, the case of Mary Clark came up on appeal from Knox. Mary Clark, a colored woman, had bound herself under an indenture dated October 24, 1816, to serve General W. Johnston, a lawyer of Vincennes, for twenty years. The demand of the owner here was for specific performance implying personal service. Jacob Call again appeared for the defense and Charles Dewey for the appellant, Mary Clark. This was one of the hardest fought legal battles in the early history of our state. After a long discussion of the case, Judge Holman, who delivered the opinion, concluded : "The fact then is, that the appellant is in a state of involuntary servitude; and we are bound by the Constitution, the supreme law of the land, to discharge
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her therefrom." Such was the death of slavery in Indiana, thirty-four years after the Ordinance of 1787 and five years after the Constitution of 1816.
The control of the liquor traffic has been one of the most difficult duties that have confronted the state. Numerous cases involving this question have come before the Supreme court. Only at times, however, has the question become politically acute and at such times the work of the court correspondingly delicate.
. Under a law of March 4, 1853, the Legislature provided for a system of local option by townships. The first case in- volving this question came before the court from Tippecanoe county, November 29, 1853. A man named Maize had opened a saloon in a township which had voted no license. The man had been found guilty by the lower court and on appeal his attorneys, John Pettit and W. F. Lane, raised the questions : Can the General Assembly prohibit the sale of spirituous liquors? Is the act of March 4, 1853, constitutional, or so much of it as confers local option on the townships? The first question was not discussed by Judge Stuart, who delivered the opinion. The verdict was opposed to the local option feature. Some of the conclusions of the judge are very interesting. "It seems needless further to inquire whether the act in ques- tion is general and uniform in its operation. A law expressly providing for license in this county and that, by name. and so on alternately throughout the state would not in its opera- tion essentially differ from this. Had the question been sub- mitted to a vote of the state at large, the license feature, whether adopted or rejected, would have, at least, had the recommendation of uniformity. Besides, such an act, it is presumed, would not have had plausibility enough to mislead anyone into the belief that it was constitutional. But this act is a specious and accommodating refinement on local legis- lation-ingeniously comprehensive-annually presenting to the townships an aspect suited to the taste of each."
"Nor is it easy to see how, on principle, a public measure can be submitted, in the abstract, to a popular vote, consist- ently with the representative system. In effect it is chang- ing the government to what publicists call a pure democracy,
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1
such as Athens was. If one enactment may be submitted to such vote, so may another, so might all; thus would the repre- sentative system be wholly subverted. If the people desire to resume directly the law-making power, which they have dele- gated to the General Assembly, they have only to change the Constitution accordingly."
"As a license law the act is complete in itself without the part relating to the township vote. So much as related to the vote may be considered as stricken out."
The people in general were disappointed in the action of the court. However, in Aker v. State (5 Indiana 193), 1854, and Maize v. Godman, (7 Indiana 635), 1854, the court stood by its opinion.
In 1855 the Legislature passed a prohibition law. This also expressly repealed the license law of 1853. The con- stitutionality of the law was soon at issue before the Supreme court, where for nearly three years the court was equally divided. Finally, in the case of Howe v. the State, 10 Ind. 424, June 19, 1858, the court by unanimous opinion held the law unconstitutional. No reasoning is given. It should be observed that it was a new court that declared the law un- constitutional and not the old one, which had been deadlocked three years.
In the case of Jordan v. City of Evansville (163 Ind. 512), November term, 1904, to cite a modern opinion on the same subject: "The power to regulate the liquor traffic is found in the police power of the state, and it should be remembered in considering all statutes on that subject, that no one possesses an inalienable or constitutional right to keep a saloon for the sale of intoxicating liquors. To sell intoxicating liquors at retail is not a natural right to pursue an ordinary calling. The manner and extent of the regulation rest in the discretion of the governing body. It is a matter of legislative will only."
The matter of revising or amending the constitution is an important question with which the Supreme court has had frequently to deal. In this matter the courts have been more restricted in their rulings than in the construction of statutes. This policy is specifically laid down in Board of County Com- missioners of Allen County v. Silvers (22 Ind. 491), 1864,
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where it was said acts involving questions of constitutional law should be strictly construed. This decision was not so notable as several later ones based on its reasoning and deter- mining matters of great popular interest.
The Supreme court has ruled on the question of the amend- ment concerning suffrage, voted on at the spring election of 1880.
There were cast for the amendment 169,483 votes and 152,251 against, a majority on its face of 17,232. By the returns of the last official enumeration taken in 1877 there were 451,028 voters in the state. The court accordingly held : "We can find no authority either in the Constitution of 1816 or of 1851 or in legislative acts upon the subject by which a constitution, or any of its separate articles, or any amend- ment thereto, could be adopted or ratified by a plurality of votes of the electors, or by any less number than a majority of the whole number cast at that election.
"The writer of this opinion, speaking for himself only, holds that it requires the votes of a majority of the electors of the state to ratify a constitutional amendment. He also holds that the number of electors of a state is a public fact which the courts must ascertain, without averment or proof, whenever it is necessary to the decision of a cause." The opinion was written by Judge Biddle and dissented from by Niblack and Scott.
Again practically the same question was ruled on at the November term, 1900, in the case In re Denny, which involved the question of the constitutionality of the so-called "Lawyer's Amendment." At the general election, November 6, 1900. 655,965 votes were cast for the candidates for governor. On the same day an amendment concerning the admission of law- yers to the bar was submitted. For this amendment there were cast 240,031 votes; against it, 144,072. Mr. Denny ap- plied for admission and refused to take an examination, thus raising the question of the validity of the amendment. The following quotation from the long decision by Judge Baker gives the gist of it: "It was unnecessary for the parties to prove the vote. This court takes judicial notice of the returns made to the secretary of state; and if the trial court had
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stated a different number the finding would be ignored, be- cause this court is charged with judicial knowledge of the fact that 240,031 is the correct number. From the same source and with the same authenticity this court knows judi- cially that at the same election 664,094 votes were cast for presidential electors, 655,965 votes for governor and 493,670 on the other proposed amendment. Since we know absolutely that more than twice 240,031 electors of the state participated in the election, we hold that the proposed amendment in ques- tion was rejected." Judge Jordan dissented entirely from the reasoning and conclusion.
One more case on this general subject is entitled to men- tion here. The General Assembly, at its regular session 1911, passed, as a bill virtually, a new Constitution. This was a copy of the old Constitution except for twenty-three amend- ments. It was approved by the governor, March 4, 1911, and, according to its own tenor, was to be voted on by the people in November, 1912. Suit was brought by a citizen of Marion county to enjoin the secretary of state from performing his duties relative to the election. The long opinion by Judge Cox covers one hundred pages and for that reason will not be quoted here. The general contention of John T. Dye, who brought the suit, was that the act involves the submission of a new Constitution to the people for adoption or rejection and that the General Assembly is not clothed with such ample power. Judge Remster, of the Marion Circuit court, granted the injunction. The Supreme court said, "The constitutional and legislative history of the state bears the strongest wit- ness against the contention that the general grant of legis- lative authority carries the power to formulate and submit at will, fundamental law to the people for their action. Power over the Constitution and its change has ever been considered to remain with the people alone, except as they had, in their Constitution, specially delegated powers and duties to the legislative body relative thereto for the aid of the people only." These cases, in a general way, show the caution with which the Supreme court preserves the Constitution; for without it there would be little use for the court.
During the Civil War the question of the currency pre-
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sented some difficulties to the court. The court expressed itself most completely in the case of Thayer v. Hedges, 22 Ind. 282, at the May term, 1864, Judge Perkins being the spokes- man. The suit was on a note conditioned to pay gold. The maker of the note tendered the payee the face of the note in United States treasury notes, thus raising the general ques- tion of a legal tender. The specific question before the court was, "Can Congress make paper issued under its authority a legal tender in the payment of all debts?" In a long and rather rambling decision the legal tender feature of the United States paper money was declared void. The decision is inter- esting in view of the later decisions in the United States Supreme court on the same question.
The question of interstate commerce came before our Su- preme court in the case The State ex rel Corwin v. The Indi- ana Ohio Gas and Mining Company. It was the purpose to prevent the company from piping gas from the state. Judge Elliott delivered to the opinion. "The power to regulate com- merce between the states is exclusively in the Federal Con- gress. Inaction by Congress will not authorize the states to legislate in matters of interstate commerce. The law now is, that all legislation in regulation of commerce between the states must be enacted by the national legislature. It is not in the power of the Legislature to prevent one citizen from buying or anyone from selling property. The rights of prop- erty are not subject to such absolute legislative control." This decision bears date November 6, 1889, and applies to the question of piping natural gas from the Indiana gas fields to Chicago.
SUPREME COURT COMMISSIONERS.
When the constitutional convention of 1850 was discuss- ing the question of the judiciary and how many members should constitute the Supreme court, they undoubtedly had little conception in regard to the amount of business which that tribunal would have to review. The state has doubled in population since 1850 and yet we are today attempting to handle all of the business which reaches the Supreme court with the same number of judges which were provided sixty- five years ago. By 1881 the Supreme court docket was so
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congested that it became imperative to provide some kind of relief. According to the Constitution it was impossible to increase the number of judges and, although the amendment of 1881 had made provision for another state court, yet the Legislature did not feel inclined to alleviate the situation by so doing. Instead of creating a new tribunal to relieve the Supreme court, the Legislature, with the act of April 14, 1881, made provision for what it chose to call "Commissioners of the Supreme Court." It is hardly possible to ascertain the motive of the Legislature in creating such a body. Opinions differ as to whether it was a political motive which actuated the Legislature or an unselfish desire on their part to provide relief for a condition which all admitted needed attention.
The act placed the appointment of the five Commissioners in the hands of the Supreme court and stipulated that the appointees should be "citizens of the state, of high character for legal learning and personal worth." Their duties as set forth in the act were as follows: "It shall be the duty of said commissioners, under such rules and regulations as the court shall adopt, to aid and assist the court in the performance of its duties. They shall not practice law, and shall hold office for the term of two years. They shall each receive a salary, equal to the salary of a judge of said court." Their term was limited to two years for the reason that it was reported to the Legislature that the Supreme court was about two years behind in its docket.
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