Lead Opinion
This action was instituted by the relator to obtain a writ of mandate against appellees to compel them to take the necessary steps in order that an election might be held in Columbia township, Whitley county, Indiana, on the first Tuesday after the first Monday in November, 1898, for the purpose of electing a trustee for that township. Each of the appellees filed a separate demurrer to the complaint, which the court sustained, and the relator refusing to amend, judgment was rendered against him for cost. Sustaining these several demurrers constitutes the errors assigned in this court.
The only questions raised and discussed by the parties to this appeal relate to the constitutional validity of an act of the legislature, approved February 25, 1897 (Acts 1897, p. 61). The title of this statute, and the first section thereof, are as follows: “An act providing for changing the time of electing certain township officers, fixing the time when they shall qualify and assume the duties of their respective offices, providing for separate ballots and ballot boxes, and repealing all laws and parts of laws in conflict therewith. Section 1. Be it enacted by the General Assem
It is insisted by counsel for appellant that as this act is invalid by reason of its being repugnant to the constitution, therefore the law of 1893 (Acts 1893, p. 192, section 6290, Burns’ R. S. 1894) whereby the time of holding the election for township officers was changed from April to the first Tuesday after the first Monday in November, 1894, and every fourth year thereafter, is still in force, and consequently the election of township trustees must be held at the November election in 1898. It will be observed that the act of 1897, supra, applies only to township trustees and assessors, and changes the time of the election of these officials from the general election in November, 1898, as provided for by the act of 1893, to the general election in November, 1900, and every fourth year there
Appellant’s learned counsel challenge the constitutional validity of the law in controversy, upon the ground that it extends the term of trustees elected in 1894 beyond the period of four years, the time allotted by the constitution for the tenure of an office created by the legislature. Or, in other words, they virtually contend that, as section 2, article 15, of the constitution inhibits the General Assembly from creating any. office, the tenure of which shall be longer than four years, that by this inhibition the legislature has no power to extend the term of a township trustee beyond the period of four years, which it is contended the act of 1897, as a necessary result, does, in respect to trustees elected at the November election in 1894, and therefore it is in violation of this provision of the constitution. Counsel assert that, as under the provisions of the act in question, the election of trustees being postponed until November, 1900, the result will be that the present incumbents will hold for two years beyond the constitutional limit. They say: “Of course,- this act does not expressly appoint the present incumbents, but it does produce that result, and we contend that in the consideration of the act, we must look to the results, and, where the results would be
It is conceded that under article 2, section 14, of the constitution, the right to provide for or fix the time for holding township elections is reserved for the legislature, but the contention seems to be that this provision of the constitution contemplates that elections for township officers must at least be held once in every period of four years, and therefore the legislature has no power to enact a law like the one in dispute, which operates in changing or postponing the time for electing trustees beyond the quadrennial period.
Before reviewing the cardinal question involved, we may say that if the objections urged by appellant against the validity of the act of 1897 can be sustained, then the effect of such holding would certainly result in striking down the act of 1893, under which the relator seeks to compel appellees to hold an election in November, 1898. Unquestionably it can be said of the latter act that it is impressed with the same infirmities which are alleged to exist against the statute of 1897. It expressly changed or postponed the time of electing trustees and other township officers from the first Monday in April, 1894, as provided by the amendatory act of 1889 (Acts 1889, p. 425), to the time of holding the general election in November, 1894, and every fourth year thereafter, and thereby, if the argument of counsel for appellant is sound, extended the holding of the trustees elected in April, 1890, three months in excess of four years'. It will be seen that trustees elected at the April election, 1890, by reason of the provision of the act approved March 9, 1889 (Acts 1889, p. 344), entered upon the discharge of their duties on the first Monday in August of that year, and the time of electing their successors being
Passing these features of the case, however, as of no present consequence, in view of our ultimate conclusion, they being mentioned merely to show the deplorable results which would follow an adverse decision on the validity of the act in question, in the event our views on the law constrained us so to decide, we proceed to consider and determine the real ■question in controversy between the parties.
It becomes necessary for us to refer to and examine
The sole contention of appellant, as previously stated, is that the statute in question is antagonistic to*the fundamental law of the State. As against this attack upon an act of the legislative department, this court must indulge all reasonable presumption in favor of its validity; and, guided by a well settled rule, we cannot consistently declare the statute in controversy invalid unless it is clearly, palpably, and plainly shown to be violative of the constitution, so as to remove all reasonable doubts that may exist in the mind of the court in respect to its alleged invalidity. State, ex rel., v. McClelland, supra; State v. Gerhardt, 145
It was well said by Chief Justice Black, in Sharpless v. Mayor, etc., 21 Pa. St. 147, on p. 161 of the opinion, as follows: “The constitution has given us a list of the things which the legislature may not do. If we extend that list, we alter the instrument, we become ourselves the aggressors, and violate both the letter and the spirit of the organic law as grossly as the legislature possibly could. If we can add to the reserved rights of the people, we can take them away; if we can mend, we can mar; if we can remove the landmarks which we find established, we can obliterate them; if we can change the constitution in any particular, there is nothing but our own will to prevent us from demolishing it entirely.” It may be true, perhaps, as counsel for appellant would seem to insist, that the great power conferred upon the legislature may be and sometimes is abused, but the remedy for this evil lies in an appeal to the people, who, in their sovereign capacity, can correct it, and not by appeal to the judiciary. There is no reason for assuming that the mere abuse by the legislature of its power was in
The electors of this State have no unalterable right to elect township trustees at the polls, for, as we have seen, the legislature, under the constitution, has the power to provide that they may be chosen by election or appointment. The constitution in no uncertain terms declares that “township elections may he held at such time as may be prescribed by lato.” (Our italics.) The power to fix the time at which the people may elect township officers is by this provision of the constitu
In State, ex rel., v. Haworth, supra, it is said: “To deny power to change, is to affirm that progress is impossible, and that we must move forever fin the dim footsteps of antiquity.’ But the legislative power moves in a constant stream, and- is not exhausted by its exercise in any number of instances, however great.” In fact, the power of the legislature to fix or change the time of electing township trustees has always been recognized, and not, to our knowledge, until now has it ever been called in question. Formerly such elections were held in April, then changed to October, then back again to April, and subsequently, by the act of 1893, to November. The power or right of the legislature to change the time of electing trustees or other township officers from the time fixed by a former law being recognized, as it must be, as a continuing and existing right or power, the mere fact that the legislature, in the exercise thereof, may deprive the electors for a reasonable time of electing successors to present incumbents, will not alone, op-
Counsel for appellant seem especially to base their contention on section 2 of article 15 of the constitution, which, as we have seen, prohibits thq legislature from creating any office the tenure of which shall be longer than four years, and their insistence is that this restriction will prevent the act in question from being upheld. It is manifest, we think, that this contention is wholly untenable. 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 trustees, 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.” The trustees and assessors elected thereunder are thereby authorized to qualify as provided by existing laws, and enter upon the discharge of their official duties at the expiration of ten days after such election. These provisions of the law do not appear to us to be impressed with any constitutional infirmities. The change or postponing of the time of electing these officers from the general election in 1898 to the next general election, cannot be said to be so unreasonable as to render the law open to judicial condemnation on that ground, especially in view of the fact that the members of the General Assembly to be elected at the coming election in November can change the time of the election to an earlier date. The act does not in any manner profess nor attempt to extend the tenure
It is elementary that the law abhors vacancies in' public offices, and great precaution is usually taken to guard against their occurrence; and courts of this country have not adhered to a strict rule, and in the absence of some express or implied legal restriction, the officer is held to be entitled to hold his office until ■ he is superseded by the election and qualification of another person. State, ex rel., v. Harrison,
Reliance is placed on the case of State, ex rel., v Wells,
Counsel for appellant have referred us to People v. Bull,
A defect in the argument of appellant, to an extent at least, is that he assumes that the act of 1897 extends the term of the office of township trustees, and his assault on the validity of the law, proceeds upon the ground of his assumption. The legislature of 1869 changed the time of the annual election of county and township officers, and provided for their biennial election, declaring in the act that the first election thereunder should be held on the second Tuesday in October, 1870, and on that day biennially thereafter. (Acts 1869, p. 57). It is a fact well known that many of the county officers throughout the State, whose successors, in the absence of the change in the time of holding the election, would have been elected at the annual October election in 1869, held over, under the provision of the constitution, until their successors were elected, in October, 1870, and qualified, thereby holding and discharging the duties of their respective offices for a year and over beyond the tenure prescribed by the constitution. And yet we have no recollection that the validity of that act of the legislature was ever called in question on the ground that it operated to extend the term of the incumbents holding over beyond the time fixed by the constitution, and the statute stood unchallenged, we believe, until superseded by the law of 1881. Section 4678, R. S. 1881. 'If the insistence of appellant in respect to the act of 1897 is correct, then it necessarily would follow that the legislature, in 1869, was powerless to change from an annual to a biennial election, and the people would
If it were necessary to look beyond the decisions of this court for support of the- ultimate conclusion reached in this appeal, the case of the State, ex rel., v. McCracken,
Other minor objections are made against the validity of the act, among which is that the subject-matter thereof is not sufficiently expressed in the title. There is no merit in this contention, for it is evident that, under the many decisions of this court, the title of the act is sufficient. The law does not, as insisted, attempt to fix the time of electing justices of the peace, constables and other officers of the township; but, ás previously said, it leaves the time fixed for the election of such officers unchanged.
From what we have said, and by force of the authorities cited, the conclusion must necessarily follow, that if the incumbent trustees hold and discharge the duties of their offices beyond the term of four years by reason of their successors not being elected and qualified, they will be permitted to do so under the express warrant of the constitution, and not by the act of 1897. It follows that the law in question is, and we so hold, a valid exercise of legislative power, and its validity is therefore sustained, and there can be no election of township trustees and assessors thereunder until the time therein fixed and provided.
The judgment is affirmed at the cost of the relator.
Rehearing
On Petition fob Reheabing.
Counsel for appellant, in their brief filed in support of the petition for a rehearing, in the main insist that it be granted upon the grounds urged at the former hearing of this cause. Counsel preface their argument by asserting that: “In view of the bit
As to the assertion of counsel that such a “bitter .and intense feeling” exists in many communities against the present township trustees, and which, as .counsel for appellant seem to intimate, has, in part at least, actuated them to discharge the “solemn duty” by applying' for a rehearing in this appeal, we may ■say that, in regard to this feeling upon the part of these communities, this court has no concern, and in ■no wise is it responsible for its existence.
We are informed by counsel’s brief of the fact, as they therein assert, that some members of the bar, not of counsel, however, in this case, “for some occult reason,” are imbued with the desire to have this cause tried and determined in the “forum of public opinion,” and that these particular attorneys declare with “charming frankness” that the majority opinion in this case “is not an opinion, but an argument.” If the majority opinion can be said to be impressed with this ■infirmity, the responsibility therefor should be charged to the writer thereof, and not to the court,, for the latter is only responsible for the final result ’reached in the case. We may also say, in passing, that .this tribunal, in the determination of questions involved in causes pending therein, cannot be influenced by any “bitter and intense feeling” that may exist in some communities relative to the merits of such questions. Neither is the judgment of this court in appeals thereto to be molded or controlled in any manner, by means or methods which can be more properly, and with better effect, employed at a “town meeting” or a political caucus, than in a court constituted for the administration of law and justice.
' Concluding, we may say that we have again given the questions involved in this cause a careful consider
Dissenting Opinion
Dissenting Opinion.
I cannot concur in the conclusion of the majority of the court. I am fully convinced that the General Assembly, by the act of 1897, exercised a right expressly denied to it by the- constitution. The denial of authority is in these words: “The General Assembly shall not create any office the tenure of which shall be longer than four years.” Const. Sec. 2, Art. 15. This clause has frequently and
In considering it, to avoid confusion, we must look to it as affecting the office, and not as giving or denying any right to the officer. To interpret this clause of the constitution, we are required to ascertain the intent of the people in adopting it,—the thought which they expressed. Indianapolis Brewing Co. v. Claypool,
What then were the objects of the tenure clause? It is most certainly a limitation upon the power of the General Assembly; it relates to office; it has reference to time, and is definite in the period prescribed. This clause, in similar form, has found its way into-the constitution of several of the states, notably California, Florida, Kansas, Nevada, Oregon, and Texas.Its purpose could not have been' an idle one. The framers were engaged in a more serious undertaking than in mere empty phrase-making. They were certainly providing a bar against the loss of some right to the people from the encroachment of the legislative department of the government. That right, consid
Gan it be doubted for a moment that an act fixing the period between elections to an office of legislative creation at six years would be unconstitutional? That it would was held in the recent case of Indianapolis Brewing Co. v. Claypool,
Considering the question with reference to those provisions of the constitution conferring upon the General Assembly the power to create the office of trustee, and to provide the times of election (section 3, article 6; section 14, article 2), we find no support for the proposition that the tenure clause may be disregarded. These various constitutional provisions, construed as other laws or instruments, should be made to stand together as constituting a consistent whole, if possible. So construing them, it must be held that, while the General Assembly may create the office and prescribe ánd change the times of electing thereto, this must be done within the limits of the expressed inhibition of the constitution. It must be done so as not to enlarge the tenure limit; so as not to deprive the people of the privilege of electing to an office of this character at least once in four years. Nor will it do to say that, in exercising the right to change the time of electing, it may become necessary or indispensable to extend the tenure. Since terms may be
Considering the questions'" before us with reference to the hold:over clause of the constitution, I find no authority for the violation of the tenure clause. It is 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 a 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.” Section 3,. article 15. It is contended with much learning and ability that this provision of the constitution saves the legislation under consideration from the inhibition of the tenure clause. This provision, unlike that of the tenure clause, has reference to the officer and his right to hold the office for the term prescribed by law, and until a successor is elected and qualified. . It has no reference whatever to the periods between which the people- may be denied the right to elect their officers. , One provision has reference to the office, and not to the officer; and the other has reference to the officer, and not to the tenure of the office. It is true, as held in some of the cases, that when one is elected to an office, except that of legislator, he is elected for the prescribed term, and until a successor is elected and qualified, although that may result in a holding of more than four years; but that is neither excuse nor authority for holding that the General Assembly may enlarge the four-years tenure, may deny the people the right of choice
The case of State, ex rel., v. McCracken,
The case of Christy v. Board, etc.,
Anything said in these cases or others as to extending the terms of incumbents, as to vacancies, and as to holding over, we do not regard as bearing upon the question before us; and upon the question here for decision the cases are clearly distinguishable from this. I realize the full meaning of the rule that the judge should be satisfied beyond a reasonable doubt that the constitution has been violated before he should hold that the General Assembly has exceeded its authority. However, it is not questioned that I have correctly interpreted the tenure clause, and I see no reasonable ground for contention that this clause is not involved before us. The inquiry must be then, has the act violated it? To my mind there is but one answer. I am not to be deterred from giving this answer because the consequences may possibly be to continue in office the incumbents even beyond the time intended by the act. If the act is invalid, its authors must be held to account for the consequences. The constitution is the paramount law, and by it the acts of every department of the government must - be tested. If I permitted this legislation to stand against the inhibition of the constitution, I should feel that I had violated that sacred law. I conclude, therefore, that the act
The invalidity of that act, however, does not fully support the appellant’s theory that the election should be held in November, 1898, since that theory implies the validity of the act of 1893 (Acts 1893, p. 192), which postponed the elections for trustee from April, 1894, to November, 1894, in exactly the same manner that the act of 1897 postponed the election from November, 1898, to November, 1900. Counsel for the appellees insist that the objections urged by the appellant to the act of 1897 obtain as against the act of 1893, and with this insistence we all concur. The violations of the constitution are of the same character, and differ only in degree; one being a postponement of two years, and the other of seven months, beyond the constitutional period for the tenure of said office. The theory of the petition affirmed the invalidity of the act of 1897, and the validity of the act of 1893 by seeking to require an election undér it. We are therefore unable to avoid the consequences of this theory. Counsel for the appellant contend that the people having elected under the act of 1893, the appellees are estopped to deny its validity, and assert that this court so held with reference to the apportionment law, in Fesler v. Brayton,
These conclusions should result in affirming the judgment of the circuit court. Whether the incumbents of the office shall hold until the regular election period in April, 1902; whether they, having been elected under an invalid law, hold de facto, as against appointees, or whether the General Assembly may provide for the exigency which these invalid laws have created, it is not for us to suggest.
Rehearing
On Petition for Rehearing.
The appellant’s petition, as addressed to the minority opinion, rests, we respectfully submit, upon false premises, i. e., that the validity of the law of 1893 was not in issue; that the appellees were estopped to assert its invalidity, and that the case of State, ex rel., v. Wells,
In the case of State, ex rel., v. Wells, supra, the constitutional validity of the act of 1893 was neither mooted nor decided, and, as well said by appellant’s counsel, constitutional questions are never passed upon unless necessary to a decision of the case. The constitutionality of laws is assumed where not denied. The minority adhere to their original opinion.