*1 County Election Board et al. v. et al. O’Brien 29,962. September 26, Filed [No. 1960.] *3 Ream, Rutherford, Donald M. Robert J. Smith & Yarling Smith, Indianapolis, and Robert S. all of appellants.
Duge Butler, Jr., Haymaker, and Ira both Indian- appellees. apolis, for brought action J. This was under the Uni-
Bobbitt, Declaratory Judgments Act, form Acts Replacement, seq., et §3-1101, County right
determine the and of the Marion duties thereof, they relate Election Board and the members Court, to the election of a of the Marion Circuit at the election to held on November be public Because of the interest and concern case, re determination of this and the written quest parties do, it of all thereto so to has been immediate advanced on the docket consideration. gives questions here to the situation which rise
presented is as follows: Gasper Harry
On November one C. was County, of Marion of the Circuit Court elected Clerk commencing years Indiana, on the term of four for a day ending day January, 1959, on the 31st first Gasper provided December, qualified as 1962. Mr. January on of the office law and assumed duties death performed the thereof until his duties April 7, on duly McClure, April 8,1959, appellant,
On Edwin commissioned the Governor Indiana Marion He Court. to the office Clerk provided by immediately qualified law and assumed which' he has continued the duties such perform. had the court which found that a dis-
Trial was parties pute as to existed between this action McClure, appellant, Edwin serve the should whether Harry unexpired term of the late or Gasper C. full election for the office of the an Clerk of the whether Circuit Court should be held at elec- 1960; and, held, if an election should whether tion newly unexpired elected clerk should serve for the Gasper’s portion of Mr. term full term of four *5 years. The further that the “Indiana Con- court found require stitution and an election for laws said general year primary be held at the and election of this [I960],” “that the . and elected . . shall serve four-year 1, term, beginning a January full 1961.” question presented determinative here is the validity 18, p. being 38, 1929, of §1, of of Acts Replacement, §49-2702, which is follows: vacancy there “Whenever has been or shall be a in the office of clerk of the circuit court county have person state, vacancy of this such shall when by appointment, been or shall be filled who is to fill such shall hold office until the end of the term for which predecessor term elected, appointee, is unexpired whose appointee serving, said shall been have appointee election, shall, and such without unexpired serve the full predecessor.” term of such Appellants question herein assert of whether a not Circuit Court should be elected at the 8, election to be held on November 1960, fully completely provi- answered supra, sions of §49-2702, and that it is a valid enactment. Appellees supra, assert that such is invalid §49-2702, in contravention of “various constitutional provisions,” viz., 5, Article §1, Article Article §14, §18, §2, and Article the Constitution of Indiana. “ applicable here is that the ‘Consti rule provides only determining
tution standard for ” statute,’ validity doing and in so court only will consider question statute in the sections of the Constitution Indiana with it is asserted be in Hanley conflict. v. State Dept. et Conservation al. 326, 332, 234 Ind. 452, E. 2d 123 N. N. E. 2d 879. consti duty of the court sustain the “It is Assembly if it tutionality an act General construction, by a reasonable can be done concerning the constitutional doubt and ity in favor of its act must be resolved of an Law, Encyc., validity.” Constitutional 5 Ind. Law Iroq. Co., State, et al. v. p. R. R. P. Ct., et 235 Ind. Cons. Dist. 133 N. E. al. 848; Wright-Bachman, Hod Inc. v. 2d E. 133 N.
nett, et al. *6 Prosecuting Atty., 713; Fairchild, etc. 2d v. 480, 483, E. 113 N. Schanke, et 232 Ind. al. 2d 159. appellees case to show upon in this
The burden is question invalid. Weisen here in is wherein statute 424, 431, berger v. State Dept. Hanley Conserva 238; v. State N. E. 326, 332, 123 Ind. al., supra et tion 2d 879. 2d 126 N. E. E.N. guide, con- will general our we rules as these
With Indiana, as of the Constitution the sections sider importance. as above-mentioned, their order of in the presented. here may they pertain to issues power is inherent dispute all “that do not First: We supra. How- People” provided in Article in any appellees facts sustain ever, to show have failed way any supra, in vio- that §49-2702, contention their provision of other . . this or contravenes lates supra. appellees support of such contention However, in officers, pro- right public to elect assert “[t]he in is one which resides Constitution vided the. , quarrel sovereign.” no with have We people as very expressed is the principle therein statement. government. However, we of our form foundation rights appellees constitutional see where cannot of .the Marion if a Clerk violated would in No- election to be held not elected at is of 1960. vember apparently appellees position here support of
In their (1932), 203 Ind. rely upon Enmeier v. Blaize 1, wherein it is said: 181 N. E. elec- the November “To elect successor at right people reserved
tion 1930 was a them in their Constitution.” applied to of the law as it correct statement
This the factual case. situation constitutionality of ch. Enmeier case involved attempted to extend Acts of which including offices,
beginning of the term of certain day Court, of Janu- to the first of the Knox Circuit present following ary “next of office of the term Appellee-Blaize to a second incumbent.”1 was elected at the term as Clerk of the Knox Circuit Court election held in November of 1926. His term began February February 25, 1928, expired period for a at time he would have served *7 eight Appellant-Enmeier years. was of consecutive the Novem- elected Clerk of the Knox Court at Circuit by duly the ber election in commissioned Governor. 1929) question (ch.
The Act of of there in the Acts appellee-Blaize have the would extended term of January 1, 1933, making unnecessary an thus to hold it postponing election of the for such office in election of a to the Blaize until successor incumbent general pages the At election of 1932. in November Ind., E., page of court 481-482 3 of 181 N. said: 59, §1, p.
1. Acts appellee “But the incumbent elected at the general and, November, 1926, comply election in in election of regularity with of the circuit clerks successor, appellee’s in the court election of such general successor should election be elected at the general years thereafter, four to wit: at the elec- November, tion in To elect successor at right peo- the November of the election 1930 was a ple reserved them in their This Constitution. right people may of not be taken from them or abridged, directly indirectly, by any either or department agency government.” or of postpone To the election of the of the Clerk Knox years Circuit Court for more than four was in direct provisions swpra, violation of of Article §2, of Indiana, Constitution and this court correctly held that elect a of the Clerk every right years people was “a re four served them in their Constitution.” That not situation in the case now before us.
Gasper was elected Marion Circuit Court general at the election held in November general
if his is not successor elected until years thereafter, election four to-wit: at election to be held in November of rights people no abridged, constitutional will be directly indirectly. either procedure Such a would compliance in “regularity be full with in the election of courts,” provisions clerks of circuit and with the 6, §2, Article of the Constitution of Indiana. 49-2702, supra,
Section not, does under the factual presented here, situation provisions violate of the Constitution of Indiana. supra, Second: Article the Constitution of provides, pertinent part, Indiana as follows: elected, shall county “There each thereof, holding voters at the time of elec- *8 Clerk, Court, tions, of . The a Clerk . . years; . . . shall continue office four . . .” provides only for This section the Constitution other election of the Clerk of the Circuit Court and It officers with we are not here concerned. which filling any neither mentions vacancies which might any does it occur in these offices nor contain provision concerning any the term to fill a shall serve. supra, ap
As hereinabove, indicated when §49-2702, plied present case, not in facts in the does any way any provisions Article violate supra. §2, provides supra, Third: Article §14, hold- for the ing Tuesday elections on the “first after Monday first in November.” 49-2702, supra, holding
Section does not affect the “general County, election” people of Marion provided by this section the Constitution Indiana. This section of the Constitution is so applicable obviously not pres to the facts in the unnecessary, ent case judgment, it in our discuss it further. supra,
Fourth: exclusively Article is concerned filling with of vacancies which occur in appointment Leg to which is vested in the islature, other State office of judge. The Clerk of the Circuit Court is neither a judge, officer, a State nor is he elected Legislature. supra, provides that:
Fifth: county, township, offices, “Vacancies and town may shall filled in prescribed be such manner as by law.” *9 county- the a clerk of circuit court is not “[T]he officer, .” State rather circuit . . officer but a Sup. McClure, etc. etc. Ct. rel. v. 264, 472, 158 2d N. E. concede, merely Even for the sake if we were is a argument, the Clerk of the Circuit fully officer, Legislature complied county the has supra, by §9, with the mandate of prescribing by filling of vacancies law2 for For these in the office of the Court. provisions not violated reasons of this section are by supra. §49-2702, urge cer- Appellees
Sixth: also our consideration viz., support position, Acts tain in of their statutes being p. 680, ch. Burns’ 1949 §29-4801, §187, being p. 512, Replacement, 1 R. ch. S. Replacement. Burns’ §49-404, 29-4801, supra, is as follows: Section “A held on the first election shall be Tuesday Monday in after in first November years, election, exist- at which all even-numbered ing in all offices terms vacancies expire expired have or which which will shall the thereafter, next election shall before be italics.) (Our filled, provided by law.” unless otherwise Legislature “provided by has otherwise law” filling office of of vacancies in the the Clerk supra, by §49-2702, the enactment Circuit Court repealed passage or not affected such section was pertaining to vacancies in office. Act 49-404, supra, follows: Section any vacancy occurs “Whenever circuit governor, office commissioned he district 18, §1, p. 38, §49-2702, ch. 2. Acts Replacement. may qualified fill filled suc- until cessor.” “quali- attempt provide Act
This does not when such Legislature has fied successor” shall be elected. provision, however, by the enactment made such swpra. §49-2702, nothing Acts can find in either of these
We way validity affects question. Act here in
Appellees further assert that since Burns’ §49-409, (1 p. 512) Replacement R. S. *10 provides, which that: person “Every any elected to fill office in a which
vacancy has occurred shall hold such office for the unexpired (Our thereof.”, italics.) term apply been has held not to to created and the offices by Indiana,3 terms of which are fixed the Constitution of apply person the same rule should to who is appointed vacancy to fill a in such an office. This necessarily does not for follow because reason “every rule that to fill elected [constitu occurred,” vacancy office in a has does tional] appointed. persons not exist in the case of who are The persons applied reason for the rule elected to to fill by, in vacancies that are created and the terms offices of which are fixed arises the Constitution because provision fixing of the constitutional terms offices therein created. Because of such constitutional provision, persons elected to such offices are entitled thereof, to hold them for the full term as fixed Legislature Constitution, abridge and the cannot right by providing they shall be for elected a County Eyears (1946), Lake Election Bd. v. ex rel. State 224 Ind. 68 E. 2d 787. N. 48 provision
shorter term. no such There is constitutional persons pertaining to fill vacancies. Governor v. Nelson 496; The (1855), 6 Ind. The State v. Allen ex rel. Cornwell Ind. 83 Am. 21 367; State, Dec. Parmater rel. Drake v. ex 382; State, rel. Hench v. Ind. 3 N. E. 317; Chapin (1887), 110 Ind. E. Carson N. v. 360; State, ex rel. Bath E. N. Ind. Election Bd. v. State ex rel. County Eyears (1946), Lake 68 N. 2d 787. E. provision The Constitution of Indiana no makes filling except pro- is vacancies such as supra, supra, vided and Article any provision thereof. Neither is there therein which persons appointed fixes the term of fill vacancies in any office. is, therefore,
The Constitution of Indiana silent toas appointment the method of or the term any person appointed a fill circuit office. grant “Our Constitution a limitation, and not a power, people, through and the the General As sembly, pass any may law not violative of the limitations in the state federal consti tution.” 5 Encye., Ind. Law Constitutional p-. Law, §21, *11 Indiana, legislative authority “In all is vested in Assembly. 4, General Ind. Const. Art. Sec. 1. right legislate to is only by limited the restric expressly impliedly imposed by tions or the state constitution, and the federal constitution and the laws pursuant treaties made (Citing thereto.” au v. State thorities.) Hanley Dept. Conservation supra al., (1955), 326, 332, 234 333, et Ind. 123 452, E. 2d 126 E.
N. N. 2d 879. there provision is no to Since be found in our Consti manner tution which or limits restricts the term appointed vacancy is to fill a who in a circuit of the and since the Clerk Leg officer, Marion circuit is a may, by statute, any per islature determine the term who son fill to in such office. recognize right
Seventh: We elect “[t]he public officers, provided Constitution, in the is one sovereign,”4 people resides in possible filling
whenever of vacancies in by appointment fice should be avoided. Such is general policy in Indiana. Under the factual situa presented by us, tion as the record here before the con rights people stitutional County of the elect a Clerk of the Circuit Court will not be violated abridged if an therefor election is held November of 1962. comply Such an election will with normal cycle years of four for the election of Clerks of the provided 6, supra,, Circuit Court as Constitution of Indiana. power Legislature
It within the to create exception policy5 an that vacancies in
office should be filled election at the earliest opportunity, it done has so enactment supra. of §49-2702, Yancey The State rel. v. (1889), Hyde 121 Ind. 22 N. 644. E. by appellees
Other cases cited
in their brief concern
filling
the tenure and
county
of vacancies in
officesunder
provisions
p. 512, being
of 1 R. S.
Replacement,
§49-405,
and are not con-
trolling
present
in the
case. For this reason further
only
consideration
them would
extend this
Enmeier
4.
v. Blaize
unnecessarily. per- are cases6 in Indiana Neither other taining filling applicable to the of in office vacancies here. provi having
The Indiana made no Constitution of filling concerning of of in office sion vacancies of the tenure Clerk Circuit Court Legislature, thereto, exercising power representing people law, filling them, may, by provide to for the reserved in vacancies of Clerk of the Circuit Court appointee, tenure within appointment and fix the four-year constitutional term. the limits foregoing judg For the reasons it considered is our swpra, ment that enactment §49-2702, is valid Legislature; force and effect that it is in full now governs appellant- the term vacancy appointed to fill the McClure was existed the office of of the Marion then the Clerk Court; presently that no exists Circuit office; that no therefor be held on election shall Novem 1960; McClure, appellant, Edwin shall ber the Marion as Clerk of Circuit Court until Decem serve 31, 1962. ber
Because the result which have reached it is we unnecessary questions presented. consider other judgment reversed,
The
of the trial
and the
court is
certify
of this
ordered
clerk
court
Court forthwith.
State,
Wright
Douglass
on the
v. The
(1869),
relation
31
Gary (1874),
Beale
The
ex rel.
429;
41;
State
49
Ind.
Ind.
v.
Long
State,
The
ex rel.
189;
Ault v.
(1878),
Moser
Long (1883),
v.
64 Ind.
State,
rel.
351;
Parmater v. The
ex
Drake
91 Ind.
State,
382;
Parcel v. ex rel. Low
(1885), 102 Ind.
N. E.
122,
3
State,
rey (1887),
rel.
ex
4;
Hench
110
11 N. E.
Ind.
State,
Chapin (1887),
ex
rel. Culbert
317;
110 Ind.
N. E.
v.
325;
Carson
. Linkhauer
v
142 Ind.
E.
N.
v.
State,
360;
Weaver
rel.
Bath
145 Ind.
N. E.
State,
ex rel.
pointee shall serve the remainder of the term of his predecessor; Opinion 58, 1952, McManamon, while No. Attorney General, contrary. to the holds Arterburn, JJ.,
Achor and concur.
Landis, J., opinion. with concurs
Jackson, J., opinion. C. dissents with OPINION
CONCURRING majority opinion in the concur written Landis, J. I Judge Bobbitt. However, I believe it should be noted that a somewhat question similar was before in the this Court recent case State rel. Thomas v. Williams only 2d N. E. difference that question the cited case involved the of the duration of appointment county an to fill a in the office of sheriff, rather than that of clerk of the circuit court. standpoint logic reading From as well from a opinion us, of the Court itself in the case before clearly it is demonstrated that would have result county county been the same for a officer such as sheriff as for clerk of the circuit court. fact, appellees’
In contention in the at case bar that in the day the result reached handed down the Court would violate Art. of the Constitution §2 Indiana, also made in State ex rel. Thomas v. Williams, supra, my separate opinion but was refuted in (concurred by Emmert, J.), therein which stated at
pages 417, 418, Ind., pages 503, of 238 E.N. 2d: “Appellee question has mean- raised the as to the ing Constitution, of Art. of the Indiana §2
Amendment of which states: county by ‘There shall be elected in each thereof, holding general voters at time of elections, Court, Auditor, a Clerk of the Circuit Recorder, Treasurer, Sheriff, Coroner and Sur- veyor. (Emphasis supplied.) . . .’ cannot mean “This or the offi- sheriffs other general election, cers named are elected at each they four-year offices, are all now simply but Again, such officers are elected at elections. we should not into read this constitutional amend- appearing ment words not there or intended. Art. bearing has no on the case before for de- us termination, any plausible and no one has advanced contrary.” contention to the *14 However, it should be noted that in State ex rel. supra, majority Williams, Thomas v. a of this Court agree (one to failed and the Court divided two to two Judge separate participating) opinions not written question pursuant on said (1946 Burns’ §2-3232 Repl.),1 the with result that the lower court’s decision holding appointment county was affirmed the of a sher vacancy appointee iff to fill a did not the allow to hold during four-year prede over the term for which his elected, only cessor but until the next was elec opinion my cause, tion. As in said concurred in Emmert, J., harmony expressed with views us, approved case I submit it in the before should be contrary opinion disapproved. and (Spec. §654, p. Sess.), Acts 1881 ch. DISSENTING OPINION agree J. I C. cannot with the conclusions Jackson, majority appellants reached herein. The here, plaintiffs below, an action in the Marion instituted against below, appellees, defendants provisions Judg- under the Declaratory of the uniform Act, 81, being seq., ments ch. et Acts §3-1101 Replacement, Burns’ praying that Acts Replace- §49-2702 ment be declared constitutional. The closed issues were by appellees filing separate their and several answers complaint; in denial to trial had the Marion was Circuit Court jury. without intervention a finding judgment court, and omitting of the trial caption, reads as follows: court, having “The had case under advise-
ment, 4, 1958, finds Harry that on November C. Gasper duly elected Clerk of the Marion Cir- Court, Circuit, cuit commissioned, duly 19th Judicial that he was qualified and January 1, 1959, on office; April 7, assumed the that on said Harry office; Gasper died, creating C. in such April 8, on Edwin McClure was appointed by the Governor of Indiana to fill the vacancy, and became the Clerk of the Marion Cir- Court, Circuit, by cuit 19th qualifying Judicial taking office; over duties of the that he received a commission from the Governor serve as such until time duly such as his successor is elected qualified; Supreme the. Court of Indiana appointment affirmed as lawful. “The dispute court further finds that a has arisen parties between this suit toas whether said unexpired Edwin McClure shall serve the full term *15 Gasper, of the late Mr. would end on Decem-
ber or whether an election for said office general year held in the should be elect Clerk election this county, Circuit Court this so, and, newly if whether such elected clerk should years. serve for or four two court, being duly advised, “The finds and declares
the law to be: “1. That the office Marion of the clerk of the Circuit Court is a constitutional office. “2. duly appointed That Edwin McClure was jure is and a de officer. “3. That the Indiana Constitution laws re- and quire an election for said office to be held at primary general year. and election this “4. That said McClure was to serve duly year until his successor is elected this and qualifies. “5. That the clerk of the Marion Circuit Court candidacy shall receive declarations of in the forth- qualified coming primary election from voters including political parties, defendants herein. County “6. That Election Board primary shall cause office of Clerk Judicial elections be held for the said Court, the Marion Circuit 19th Circuit, and a election in the fall year The court further declares the law to “7. year elected this in the that four-year term, shall for a full be- election serve ginning January controlling This court cites as the law in “8. County of Lake matter the case Board Eyears, vs State ex rel Election Commissioners 224 Ind. 465. “WHEREFORE, ORDERED, IT IS .SO CON- SIDERED, DECREED, AND costs ADJUDGED plaintiffs.” vs finding finding judgment in effect a is question the statute unconstitu- judgment tional. majority determinative stated in
As p. validity 38 of the of ch. Acts question Replacement. §49-2702 only applies to the Clerk of the above cited The Act distinguishes only particularly
55 office 1852, 115, p. or officer from 1 R. S. 512 being Replacement which reads §49-409 as follows: Every person elected to fill “Term. —
in which a office occurred has shall hold such unexpired for the term thereof.” This court uniformly has heretofore held that the last quoted applies statute with full force effect to all Assembly, offices created the General it but has been to held be may unconstitutional and void in far it so thought apply to created, to offices and the terms of which are fixed our State Constitution. See: Lake County Eyears Election Bd. v. State ex rel. 224 465, 468, Ind. 68 N. E. 2d there cases cited. Attorney General, 1952, pp. 230 part
and 231 reads as follows: “In the case of Enmeier v. Blaze 203 475, 481, Ind. 181 Supreme N. E. 1 the Court of question
this state had before it validity seeking delay beginning statute the term of certain constitutional offices in order provide uniformity of succession of office. holding “The court that statute was in violation applies constitution as it to clerks of the circuit court said: spirit ‘. . . The of the Constitution is to avoid court, vacancies in the office of clerk the circuit as well as vacancies in the other offices named in avoid, Art. necessity ment; officer, and to §2; possible, as far as filling by appoint- vacancies in offices also, holding to avoid over an elected expiration after the of the term except and until his successor shall have been qualified. (Art. 15, elected and Constitution.) “There construing have been a number cases Chapter 7 of 1 Section of R. S. same being 49-409, provides Burns’ every elected fill office shall it hold for the unexpired term thereof. This statute been re- has ap- peatedly pointees offices. applies to held invalid in far as it constitutionally to fill vacancies in created County Election Board v. State See: Lake Eyears rel. 68 N. E. 787; (1899), 152 2d Weaver v. rel. State ex Sims A. G.
Ind. E. 450. See also N. O. Opinion year. 75 and Official No. of this Chapter 1 of 18 of Acts of “Section provides specifically same that Burns’ 49-2702 *17 persons appointed to fill in vacancies shall hold for office Clerk of the unexpired portion the fes'tly subject of that term. This is manir infirmity, on to the same the statute beginning changing the terms and the subject are. of terms statute on Therefore, cited, duration authority heretofore on the basis of the opinion pursuant my it constitu- is proper election for clerk mandate it is for an tional to be held in Jay County in 1952 election.” reasoning of the Attor-
I am in full accord with the appel- expressed. The above ner General’s present McClure, appointed to his here, lant Edwin justification to to be even less and there seems election, appointment' than an so an sustain thereby doing, can of the electorate the will thwarted. of Lake in the case has heretofore said
This court
supra:
Eyears,
rel.
County Election Bd. v. State ex
being
by,
an
created
. . This
“.
Constitution,
by the
of which is fixed
State
term
the
He will
at
tempore
pro
only
official.
appointee can be
elected
fill the
until his successor is
duly
general election and thereafter
next
Linkhauer
ex rel. Culbert v.
qualifies. State
325;
Beale v. The State
E.
49
Ind.
N.
Douglass
41;
The
Gray
Ind.
v.
rel.
429.”
Wright
ex rel.
State
majority opinion, my
ruling
opinion,
overrules
precedents
jurisprudence
of our
of more than one hun-
years’ standing.
judgment
dred
of the trial court
affirmed,
holding
should be
the Acts of
p,
Replace-
§49-2702
unconstitutional;
modified,
ment is
to hold that an
election for the office of Clerk of the Marion Circuit
year
unexpired
Court should be held in the
1960 for the
Harry Gasper,
term the late
which term
on the
ends
day December,
31st
Reported in
Note. —
Prophet v. State of Indiana. 29,888. [No. Filed June Rehearing September 26, denied 1960.]