151 Ind. 679 | Ind. | 1898
Lead Opinion
This was an action brought by the
In the complaint and alternative writ issued thereunder it is. shown that the relators are each eligible to the office of appellate judge, that each was duly nominated thereto and such nomination properly certified to the said board of election commissioners, but that said board refused to place the names of the relators upon the official ballot, claiming that there were no such officers to be elected at said election. To the complaint and alternative writ the appellees demurred for want of sufficient facts, and this demurrer was sustained by the court. Judgment was thereupon rendered denying the peremptory writ, and for costs against the relators.
• As preliminary to a consideration of the case upon its merits, the appellees contend that the complaint is defective, for the reason that it discloses a joint action by the relators, whereas they have no joint or common interest in the result. There is no doubt that each of the relators is separately interested in the outcome of the action, inasmuch as each seeks election for himself to the office of judge of the Appellate Court. We think, however, that they have also a common interest in the decision of the case. They are all complaining of the one act of the board of election commissioners, .who have refused to place their names on the official ballot, claiming that there is no right to fill the office of appellate judge at the ensuing general election. That is the one, actual, indivisible issue brought before the court, and each of the relators is equally interested in the decision
Under authority of section 1 of article 7 of the constitution, which provides that, “The judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish,” the legislature, by an act approved February 28, 1891, created the Appellate Court, Acts 1891, p. 39, section 1336, Burns’ R. S. 1894 (6562a, Horner’s R. S. 1897), and following sections. By the terms of the act the State was divided into five Appellate Court districts, one judge to be elected from each district. The first judges were appointed by the Governor, “to serve until judges for said court shall be elected and qualified.” The term of office of such judges was fixed at four years from the first day of January next ensuing their election, except that the first judge elected in the first district should serve for two years, and the first judges elected in the second and third districts should each serve for three years. The limit of the existence of the court was fixed at six years from March 1, 1891. By an act approved March 4, 1893, the term of office of each of the judges first elected was fixed at four years from the
It is contended by the relators that, as the judges elected at the general election of 1896 were to take their office on the 1st day of January thereafter, and as the court itself was to end on the 1st day of March following, it therefore results that those judges were elected to serve for two months only; that is, from January 1, 1897, to March 1, 1897. Appellees, on the other hand, contend that, as the law fixed the term of office of the judges at four years from the 1st day of January following their election, it must result that the judges elected in November, 1896, were elected to serve for four years from January 1, 1897. It would seem that the contention of the relators must be correct. The general election of 1896 could be conducted only with reference to the law as it then stood. The term of the then incumbents of the office of appellate judge would expire on the 1st day of January thereafter, while the term of the court itself would expire on the 1st day of the succeeding March. The electors in casting their ballots for appellate judges in 1896 must therefore have had in mind that the officers to be elected could serve only from January to March, 1897. It would be absurd to say that the electors would, or could, choose judges to serve for a time after.March 1, 1897, when there would be no court in existence, as then provided by law.
. The people could not elect judges conditionally, on the supposition that the legislature might after-
' Afterwards, by an act approved January 28, 1897, section 26 of the act of 1891, which limited the life of the court to the period of six years from March 1, 1891, was repealed; and the period of the existence of the court was extended for four years from January 1, 1897. Acts 1897, p. 10, section 6565a,, Horner’s R. S. 1897. Section 2 of this last act reads as follows: “That the term of office of each of the judges of said Appellate Court shall be four years from the first day of January next after his election; and that all of the present judges of said court shall continue to hold their office as such, respectively, for the districts for which they have been elected, for and during the term of four years from the first day of January, 1897.” The first clause of this section is but a reenactment of the original provision of the- law that the term of office of each of the judges should be four years from the 1st day of January next after his election. If by this reenactment the legislature intended to lengthen the terms of the judges already elected,—
Two facts are plain from this clause: First, the legislature explicitly recognized the incumbents as elective officers, elected by the people at'the previous general election; and, second, the legislature assumed to itself the right to continue the judges in office for the full term to which the court had been extended. That the office is one elective by the people, save only that- in case of vacancy an appointment may be made by the Governor, is not only recognized by the various acts in relation to the establishment and membership of the Appellate Court, but is also clear from the constitution itself. It is provided in article 5, section 18, of that instrument, that, “When, at ‘any time, a vacancy shall have occurred * * * in the office of judge of any court; the Governor shall fill such vacancy by appointment, which shall expire when a. successor shall have been elected and quali
It seems to have been attempted by counsel to draw from the-provisions of article 15 of section 1 of the constitution some argument in favor of the power of the legislature to. appoint, or, what amounts to the same thing, to extend the terms of, judges of the Appellate Court already elected. That section of the constitution reads: “All officers whose appointments are not otherwise provided for in this constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law.” But a cofistruction has been given to- this section adversely to the theory of counsel, by decision of this court, in State, ex rel., v. Denny, 118 Ind. 382; City of Evansville v. State, ex rel., 118 Ind. 426; State, ex rel., v. Denny, 118 Ind. 449; and State, ex rel., v. Peelle, 121 Ind. 495. It was held in those cases that by the section of the constitution referred to authority is conferred upon the legislature to prescribe by law the manner of electing such officers, but not the power itself to elect them.
Another like contention of counsel may be noticed here. It is, if we understand it, that, because the legislature has the power to create an Appellate Court and to fix the tenure of office of the judges for any
The turning point in the case seems to be upon the question, were the incumbents of the office of appellate judge elected in 1896 for a term of four years? . Since it must be conceded that the prescribed duration of the office was but two months from the expiration of the term of their predecessors, but one answer would seem possible, namely, that they could be elected for no longer period than the expressed duration of the office. The possibility of holding longer required legislative action which should give the office renewed life. It seems too plain for argument that the right to hold the office, from whatever source that right is derived, depends upon the existence of the office. Just how the people could be deemed to have elected for four years to an office which they had said, through their legislature, should expire in two months, seems beyond comprehension. The conclusion that they did so intend must rest upon the assumption that they then anticipated that the life of the court would be extended long enough to fill out the four years. The assumption cannot be authorized merely from the circumstance that the act was afterwards passed. It is sufficiently difficult to
In State, ex rel., v. Long, 91 Ind. 351, it appeared that Long had been elected to the office of county recorder, and that before his term began his predecessor resigned, and Long was appointed to fill the vacancy, receiving a commission to fill such vacancy, and also a commission for his regular term thereafter. His successor, elected at the next general election, claimed that Long had only one term,'which began at the date of the resignation of his predecessor. This court, however, held that the people had elected Long for a regular term to begin at the end of his predecessor’s regular term, and that he was entitled to fill out that regular term, notwithstanding he had also been appointed to fill the vacancy occasioned by his predecessor’s resignation. “Long’s election,” said the court, “gave him no right to the office until the expiration of the period for which Small [his predecessor] had been elected. * * * The term for which Long had been elected could not be changed by any act of Small.” There, as here, the people voted for the officer for a term provided by the law as it then existed. It is wholly inadmissible, as said by the court in People v. Palmer, 154 N. Y. 133, 47 N. E. 1084, that the electors voted for an officer for a term to be thereafter fixed by the legislature.
The case was a very plain one when the people assembled at the polls at the general election, in 1896. There was an Appellate Court in existence, whose life was limited by the law upon the statute book, to the 1st day of March, 1897. There could then be no such thing as electing any one to fill the office of appellate judge after that date. In order that there be a judge there must be a court; or, as it said in State, ex rel., v. Friedley, 135 Ind. 119, 21 L. R. A. 634. “There can be
The contention of appellees that, because the legislature, by amendment of the statute, might have extended the life of the court to four years at any time before the election, and the judges would therefore have been elected for a full term of four years, it follows that the same results must take place when the legislature amends the statute in like’ manner after the election, for the reason, as counsel say, that an amendment to a statute becomes a part thereof, as if it had been enacted as a part of the original statute, is utterly fallacious, so far as it affects operations under the statute before such amendment. This principle was recognized by this court, as now constituted, .in Walsh v. State, ex rel., 142 Ind. 357,
Rehearing
qn petition For Rehearing.
The petition for a rehearing of this appeal is in some respects a remarkable one. None of the parties seem to have any interest left in the case. The honorable judges sitting on the appellate bench were not at any time parties to the action, and having been chosen at the recent election for a term ending only with the life of the court, January 1, 1901, they are certainly not now concerned with the decision. The relators were candidates and voted for at the election, and, having failed to receive a majority of the votes for appellate judges, are also no longer interested. Finally, the board of election commissioners, having, without delay or formality, complied with the law as declared by this court, and having no further possible action to take, can have no further interest. The duties of that high body are confined by statute to matters preliminary to the election. They have faithfully and impartially performed the duties there prescribed. A new board must be organized to prepare for the next general election. Hence it would seem that the appellee board is now functus officii. In truth, so far as parties are concerned, the case before us “is now simply a moot court question.” Courts of final resort, however, ought not to be engaged in passing on moot court questions: there should be actual parties in interest. This was, in effect, the decision reached in overuling the petition for a rehearing in Parker v. State, ex rel., 133 Ind. 178,
As far as argument is concerned, every plausible suggestion that could be advanced in support of the position taken by counsel for appellees was presented in the briefs and oral argument on the original hearing. The views so presented were then fully considered, and held insufficient to sustain the judgment of the trial court, and to that decision we still adhere. We have not the shadow of a doubt as to the correctness of the conclusion then reached. Men cannot be elected to fill the office of judge for a longer time than the term of the office itself, as fixed by the law in force at the date of the election. Neither can the legislature extend the term 'of the existence of a court, and then name those who shall be judges for the term so extended. Still less can the legislature prevent the people from electing judges at the general or special election provided by law for that purpose.
Petition overruled.
Dissenting Opinion
Dissenting Opinion.
I am constrained to dissent from the conclusion reached by the majority of the court in this case, and will, briefly as possible, and without elaboration, state my reasons for dissenting. It is conceded, if I understand the position of counsel for the relator, and at least, it cannot be successfully denied, that in the absence of the provision limiting the life of the Appellate Court in the statute creating it, its existence would have been perpetual, subject only
The fact that the incumbents had been elected and inducted into office prior to the passage and taking effect of the act of 1897, can make no material différence in regard to their status, for, when the change made by the last enactment is construed with the provision of the original act, which fixed the tenure of office at four years, and each provision is given its full force and effect, it must follow that the present judges would hold for a full term of four years provided the life of the court was prolonged for that period by legislative action. But the claim or contention is that the incumbent judges were only •elected by the people for a term of two months, beginning January 1, 1897, and ending on the first day of March following, at which date the existence of the court was to terminate, and at that time, it is contended, their official functions ceased by virtue of the limitation clause, regardless of the act of the legislature in controversy, which repealed the tenure clause of the court and expressly extended the life of the court, and which act, as heretofore said, was in fnll force and effect at and prior to the date originally fixed for the expiration of the life of the court. Counsel for the relatóos seemingly press their argument to the extreme of insisting that vacancies in the offices of appellate judges occurred on and after March 1, 1897, and that the operation of the act in dispute authorized the Governor to fill such vacancies by appointment until the n'ext general election, or, in other words, the contention is that the effect
The argument or claim that the electors of the
Even though it be conceded that the term of the present judges was but two months, as relators assert, when they were elected and became incumbents of the office they would certainly be subject to either an abridgment of that term or to an extension thereof not over four years; and, as the limitation clause in question was changed and extended before the expiration of the two months, it certainly must be evident, in view of the authorities, that the term of the judges would be subject to that extension which, under the facts in this case, is within the constitutional restriction of four years; and upon this theory of the case the contention of the relators, that the election for appellate judges must be held at the ensuing election cannot be sustained.
The legislature, then, being invested with the power to extend the existence of a statutory office beyond its original limit, if this power is exercised during the life of the office, it will result in permitting the incumbent to continue in office for his full term as fixed by law, not exceeding four years, provided the life of the office has been so long continued by the
The limitation of the existence of the Appellate Court, in the act creating it, may be said to be temporary. An act of the legislature may be temporary in some of its parts and permanent in others; and the authorities affirm that if a statute, temporary when enacted, is made permanent by a subsequent act, it is to be deemed permanent ab initio. Sutherland on Statutory Construction, section 136; 23 Am. and Eng. Ency. of Law, 155. It would follow, under these authorities and the facts in this case, that the repeal by the legislature of 1897 of the provisions of the original act, which limited the life of the court, would have alone resulted in making the existence of
The principle asserted in People v. Bull, supra, under our constitution, which prohibits the legislature from fixing the term of a statutory office beyond four years, is not in point, or applicable to the question involved in the case at bar. Under the constitution of New York, as it then stood, the power of the legislature to fix the term of an office of its own creation, appears to have been unfettered, and the holding in People v. Bull, supra, proceeds upon the theory that, if the power was conceded to the legislature to extend the term of an incumbent beyond that fixed prior to his incumbency, such power would be without limit, and the legislature could extend the term of an official so as to make the duration of his term, when once fleeted, permanent, and ever after thereby deprive the people of choosing his successor. It will readily be seen that, under the constitution of this State, such evil results cannot follow an extension by the legislature of the term of an office. This body, under our constitution, is authorized, in the first instance, to fix the term at four years and no longer. If the term of a statutory office is originally fixed for a term under four years, the legislature certainly has the power,