Carson v. McPhetridge
| Decision Date | 12 December 1860 |
| Parties | Carson v. McPhetridge |
| Court | Indiana Supreme Court |
APPEAL from the Monroe Circuit Court.
The judgment is reversed, with costs. Cause remanded for further proceedings, in accordance with this opinion.
D Sheeks, W. T. Otto and J. S. Davis, for appellant.
J. E McDonald and A. L. Roache, for appellee.
McPhetridge was elected clerk of the Monroe Circuit Court, in 1845, for the term of seven years. On November 1, 1851, the new Constitution of the State took effect, being about a year before the expiration of the term for which McPhetridge had been elected.
At the October election, in 1852, McPhetridge was re-elected clerk for the term of four years.
At the October election, in 1856, he was again elected clerk, as he claims, for the term of four years, which would expire in 1860.
At the October election, 1859, Carson was voted for, for clerk, and, as he claims, elected the successor of McPhetridge, with the right to take immediate possession of the office.
He insists that the right of McPhetridge to hold the office ceased at the expiration of eight years, from November 1, 1851; being one year before the expiration of the term of four years for which he claimed to have been last elected. Carson insists that the new Constitution effected such curtailment of his term.
Section 2 of Art. 6 of that instrument ordains, that there shall be elected, in each county, by the voters thereof, at the time of holding general elections, a clerk of the Circuit Court, &c., who shall continue in office four years; and further, "and no person shall be eligible to the office of clerk, recorder, or auditor more than eight years in any period of twelve years."
McPhetridge contends that this clause of the Constitution applies only to time and terms of office filled by election after the new Constitution took effect. Carson contends that it applies to time and terms actually served after the new Constitution came into operation, though under elections which took place under the old Constitution.
The question has been thoroughly discussed by counsel, upon general principles, but no authority bearing upon it has been cited; and we have patiently considered it, with a frequent vibration of opinion, and now come, with some hesitation, to a final conclusion.
Laterally, the disabling provision applies to periods of time, not to terms of office; and, of course, it applies to time under the present Constitution, of which it is a part, as it specifies no other. It says "no person," not no such person as has been elected under the new Constitution, &c., shall, &c. But we can not determine its meaning by a reference to the section alone of the Constitution in which it is found; because, from that section, we can not know that any person will hold office under the new Constitution by any other mode than election, at the general elections the section refers to. We must, then, look to other sections of the Constitution.
It is provided in the schedule as follows:
How is this provision to be construed in reference to the disabling clause contained in § 2 of Art. 6, above quoted? A recurrence to the history of the time of the adoption of the Constitution may slightly aid in answering this inquiry. A portion of the officers, under the old Constitution, held by popular election, and a portion by mode of appointment. The terms of some of the officers, also, were somewhat lengthy. One object of the new Constitution was to make all, or nearly all, the officers elective by the people, and to shorten the terms of office. Influenced by these views, the convention provided, in the subdivision of the schedule quoted, that those persons, then in an office continued in the new Constitution, who had come in by popular election, the mode adopted by that Constitution for filling the offices, should continue to hold under that Constitution, as they had been brought into office by the popular mode prescribed by it; but subject to the doctrine of supposed reform, by shortening the terms of office, upon which the convention were acting. Hence the...
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Enge v. Cass
... ... 117; People ex rel. Marshall v. Leonard, 73 Cal ... 230, 14 P. 853; State ex rel. Nourse v. Clarke, 3 ... Nev. 566), also on Carson v. McPhetridge, 15 Ind ... 327; Jeffries v. Rowe, 63 Ind. 592, and a case from ... Minnesota (Taylor v. Sullivan, 45 Minn. 309, 11 ... L.R.A ... ...
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...as used in our constitution, relates to capacity of holding, as well as capacity of being elected to, an office." (See Carson v. McPhetridge, 15 Ind. 327. To the effect see also Jeffries v. Rowe, 63 Ind. 592.) In Smith v. Moore, 90 Ind. 294, the constitutional provision of that state that "......
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