177 Ind. 564 | Ind. | 1912
Appellee, a voter and taxpayer of Marioh county, sued to enjoin appellants, as the hoard of primary election commissioners of that county, from giving notice
Counsel for appellants, acting in accordance with the instructions of their clients, expressly waive the assertion of any irregularities or minor questions growing out of these rulings, and found their appeal only on the unconstitutiona-lity of the act'of 1911, supra, which is entitled, “An act changing' and fixing the time for the election of certain probate, juvenile and superior court judges in the State of Indiana, fixing their terms.of office and repealing all laws in conflict therewith.”
“Section 2. At the general election to be held in November, 1918, and every four years thereafter, judges shall be elected for all the courts above mentioned. Said judges shall hold their office four years and until their successors are elected and qualified.
“Section 3. There shall be no election held at the general election in November, 1912, for the purpose of electing any of the above named officers.
“Section 4. All laws and parts of laws in conflict herewith are hereby repealed.”
The principal assault of appellants on the validity of the act is made in the claim that it is in conflict with the various provisions of the Constitution of the State, providing for general elections biennially, the election of judicial officers-by the electors, and forbidding the legislature to- create any office the tenure of which shall be longer than four years, in that it denies to the electors the right to elect successors of the officers in question at the general election preceding the expiration of their terms, though a general election will occur at which successors could be elected, thereby extending the terms of the officers in question two years beyond the official tenure of four years fixed by the Constitution.
Counsel for appellee cite the case of State, ex rel., v. Menaugh (1898), 151 Ind. 260, 51 N. E. 117, 43 L. R. A. 408, and rely upon the decision of the court in that ease to sustain the judgment of the lower court in upholding the validity of the act questioned in this. The act before us in this deals with offices of legislative creation as the one considered in that did. It makes no change of any kind in the offices affected or in the powers and duties attached to and imposed on them. The time of election of all of them is merely made uniform. In that case the act of February 25, 1897 (Acts 1897 p. 64, §6983 Burns 1908), by provisions like those of the act under consideration, postponed the election of township trustees from the general election of 1898 to that of 1900. It was assailed by the charge that it extended the terms of the incumbents beyond the general election immediately before their expiration, and added two years to their four years term of office, thus violating provisions of the Constitution. That ease was presented to this court by able counsel, and, as is apparent from the opinions rendered in it, was given thorough consideration. The conclusion of the majority of the court was that the act was not open to the objections urged against it. In the case of
On the question of whether there was an express or implied inhibition in the Constitution of the extension of the time of holding an election, such as is attempted in this case, it was said in the case of State, ex rel., v. Menaugh, supra, at page 268: ‘ ‘ The question in this case with which we have to deal is not whether the power to change or repeal a statute relative to the time of the holding of township elections has beeen conferred upon the legislature, but whether such power has been restricted or withheld by the organic law of the State. Article 2, section 14, of the Constitution provides that ‘All general elections shall be held on the first Tuesday after the first Monday in November; but township elections may be held at such time as may be provided by law, etc.’ Article 6, section 3, provides that ‘Such other county and township officers as may be necessary shall be elected or appointed in such a manner as may be prescribed by law.’ (Our italics.) Article 15, section 2, reads as follows: ‘When the duration of any office is not provided for by this Constitution, it may be declared by law =s * But Q-eJierai Assembly shall not create any office the tenure of which shall be longer than four years.’ The express restriction imposed by this last section is that the General Assembly shall not create any office the prescribed term of which is longer than four years. Section 3 of the same article provides that ‘Whenever it is provided in this constitution, or in any law which may be hereafter passed, that any officer, other than a member of the general assembly shall hold his office for any given term, the same shall be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified.’ Tested by any or all of these
9. The assertion of counsel for appellants, that there is an implied denial of power to postpone an election where it will result in the incumbent of the office holding longer than four years, because of the provision of article 15, §2, of the Constitution, that “the general assembly shall not create any office the tenure of which shall be longer than four years,” is fully considered and answered in State, ex rel., v. Menaugh, supra, at page 271, where it is said: “An examination of the act will readily disclose that it does not profess to create the office of township trustee, nor to extend the term thereof beyond the constitutional limit. It proceeds upon the theory that the office has been previously created, and it merely declares as the legislative will that the time of holding an election for township trustee, etc., shall be changed from the general election on the first Tuesday after the first Monday in November, 1898, to the general election on the first Tuesday after the first Monday in November, 1900, and on such day ‘of every fourth year thereafter’ * * *. These provisions of the law do not appear to us to be impressed with any constitutional infirmities * * *. The act does not in any manner profess nor attempt to extend the tenure of the trustees elected in 1894, nor of those to be elected thereunder in 1900, beyond the constitutional limit of four years. If it provided that the election should be held in 1900 and every fifth or sixth year thereafter, quite a different question would be presented. The statute in question makes no reference to present incumbents. It neither pretends nor attempts to abridge nor enlarge their
On this question the court followed the former declaration of the court in State, ex rel., v. Harrison (1888), 113 Ind. 434, 16 N. E. 384, 3 Am. St. 663, where it was held that while the provision of article 15, §2, imposes an absolute restraint against the creation by the legislature of a term of office of longer duration than four years, and that it prohibits a legislative tenure, or right to hold by legislative authority, for a longer period than four years by virtue of one election or appointment, it by no means follows that the provision of §3 of the same article under which offices of legislative creation may be held after the expiration of the term fixed, and until a successor is elected and qualified, is rendered inoperative. This provision, it was there held, adds an additional contingent and defeasible term to the original fixed term, and the right to hold over comes from it and not from the act regulating the time of holding the election for
10. We think the decision in State, ex rel., v. Menaugh, supra, is controlling in this. Moreover, the general rule is that it is within the province of the legislature to postpone elections and readjust the commencement of the terms of offices such as are of legislative, creation particularly, in which case the incumbents may either hold over, or special elections may be authorized to fill the vacancies thus occasioned until the next general election. Such statutes are not considered in violation of the Constitution, where the object is to regulate the time of holding elections, and not merely to extend the terms of incumbents; but if the legislative intent is clearly to extend the terms of present incumbents in office, the act will fall under the ban of the constitutional provision. 15 Cyc. 343; Scott v. State, ex rel. (1898), 151 Ind. 556, 561, 52 N. E. 163; State, ex rel., v. Burke (1900), 154 Ind. 645, 57 N. E. 509; State, ex rel., v. McGovney (1887), 92 Mo. 428, 3 S. W. 867; State, ex rel., v. Ranson (1880), 73 Mo. 78, 89; State, ex rel., v. Tallman (1901) , 24 Wash. 426, 64 Pac. 759; Wayt v. Glasgow (1906), 106 Va. 110, 55 S. E. 536; note to State, ex rel., v. Plasters (1902) , 3 L. R. A. (N. S.) 887.
It is urged upon us that the Menaugh ease has been im
Concluding that the act in question is not overthrown by provisions of the Constitution, the judgment of the lower court is affirmed.
Note.—Reported in 98 N. E. 342. See, also* under (1) 36 Cyc. 990; (2, 3 and 5) 36 Cyc. 992; (6) 8 Cyc. 776, 806; (7) 8 Cyc. 775-