State ex rel. Harrison v. Menaugh

Decision Date14 October 1898
Docket Number18,609
Citation51 N.E. 357,151 Ind. 260,51 N.E. 117
PartiesThe State, ex rel. Harrison, v. Menaugh et al
CourtIndiana Supreme Court

Original Opinion of July 1, 1898, Reported at: 151 Ind. 260.

Hackney C. J. Houard, J., Concurs in the foregoing.

OPINION

Per Curiam.

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 bitter and intense feeling in many communities of Indiana at the continuance in office of a number of township trustees who are looked upon with suspicion by the people, etc.," they are impressed with the "solemn duty" to file the petition for rehearing, and "in everyday language to argue it, * * * in the hope that mature consideration has changed the opinion of the majority of this court, and in the belief that a few suggestions will lead the minority to modify their final conclusion." Counsel recognize the fact that the minority opinion of Judges Hackney and Howard expressly declares that the final conclusion therein reached must result in affirming the judgment of the lower court which denied the right of the relator to demand that an election for township trustees be held at the November election of the present year. This court, under the two opinions in question, may properly be said to have been unanimous in holding that the judgment below must be affirmed for the reason that there was no existing law which authorized the election of township trustees at the November election of 1898. While it is true that the minority opinion in this cause does not agree with the premises from which the final conclusions of the majority of the court were deduced, nevertheless, it is evident that it is nothing more nor less than a concurrence in the court's final conclusion that the judgment must be affirmed, and that there could be no election of trustees at the ensuing November election. The material difference or distinction between the two opinions consists in the reasoning by which the ultimate conclusion in each is reached. That of the majority, as will be seen, is arrived at by affirming the constitutional validity of the act of 1897; while that of the minority is reached by denying the constitutional validity of the act of 1897, and, for like reasons, that of the act of 1893.

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 consideration, and are fully satisfied that the conclusion reached at the former hearing is correct, and in full harmony with well settled principles of law. Considering the principal question involved in this appeal from the final conclusion of either the majority or minority opinion of this court, and it must necessarily follow as, and is, the unanimous opinion of this court that the petition for a rehearing ought to be denied. It may also be said that appellant's learned counsel, in their criticisms upon the minority opinion, to the effect that the validity of the act of 1893, could not become involved under the complaint of the relator, and that the minority in so holding traveled outside of the record, are certainly mistaken. It is evident that the complaint of the relator is founded upon his theory that the act of 1893 is a valid exercise of legislative power. If the objections, which his counsel urge against the validity of the act of 1897, can be maintained, they will certainly apply with equal force, and for like reasons, in striking down the act of 1893; and he could, therefore, have no standing in court to demand the relief which he does under his complaint. That this result would follow, his counsel, in their argument, from the position which they assume, certainly make evident. The petition for a rehearing is overruled at the cost of the relator.

Opinion on 51 N.E. 117

DISSENT BY: Hackney

Hackney C. J.

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 properly been held to apply to the office, and not to the officer. Baker v. Kirk, 33 Ind. 517; Parmater v. State, ex rel., 102 Ind. 90, 3 N.E. 382; State, ex rel., v. Barlow, 103 Ind. 563, 3 N.E. 245; Jones v. State, ex rel., 112 Ind. 193, 13 N.E. 416; State, ex rel., v. Harrison, 113 Ind. 434, 16 N.E. 384; Bell v. State, ex rel., 129 Ind. 1, 28 N.E. 302.

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, 149 Ind. 192, 48 N.E. 228. "If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose, and so as to subserve it." Prigg v. Pennsylvania, 16 Peters (U.S.) 612; State v. Arrington, 18 Nev. 412, 4 P. 735; 6 Am. & Eng. Ency. of Law (2d ed.), p. 921: "No court of justice can be authorized so to construe any clause of the constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them." Prigg v. Pennsylvania, supra.

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, considered with reference to the period of time named, could only have meant the right to choose their public servants at least once in four years. There was wisdom in this purpose, for it would prevent the General Assembly from building up a favored class of office holders without responsibility to the people, and whose tenure would depend alone upon the perpetuity of the party controlling the assembly. This purpose would cut off that train of evils which would follow from an official class using its offices in the interest of party, and for its own perpetuity. The clause, interpreted in the light of this purpose, is wise and effective, and no other provision supplies its place. Rejecting this purpose as one of the objects of the clause, and the General Assembly is left free to visit upon the people all such evils. Tenure, then, as applied to the office, must mean the period bounded by the appointments or elections to the office. In this meaning it must be assumed, it was designed that the General Assembly should not violate it directly or indirectly. That after creating the office and providing for elections once in four years, the constitutional limit, the act of 1897, postponing an election for two years, violated the constitution, seems too plain for serious difference of opinion.

Can 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, 149 Ind. 192, 48 N.E. 228. If such an act would fail, why, after creating the office and providing the full tenure, may such tenure be enlarged by a second act? Nor is there sound reason in the conclusion, that in computing the time, that which has already been occupied by...

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