Enmeier v. Blaize

• Decision Date: 13 May 1932
• Docket Number: No. 26169.,26169.
• Citation: 181 N.E. 1,203 Ind. 475
• Parties: ENMEIER v. BLAIZE.
• Court: Indiana Supreme Court

203 Ind. 475

181 N.E. 1

ENMEIER

v.BLAIZE.

No. 26169.

Supreme Court of Indiana.

April 27, 1932.

Dissenting Opinion May 13, 1932.

Appeal from Circuit Court, Knox County; Wm. S. Hoover, Judge.

Action by Joshua L. Blaize against Paul W. Enmeier. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with instruction.

[181 N.E. 181]

See, also, 179 N. E. 783.

Horace A. Foncannon, of Vincennes, for appellant.

Curtis G. Shake, of Vincennes, for appellee.

TRAVIS, C. J.

This cause of action is to obtain a declaration of the rights and status of appellee, as petitioner in the court below, as clerk of the Knox circuit court, as such rights and status may be affected by an act of the General Assembly, passed at the Regular Session in 1929, and designated in the Acts of 1929 as chapter 59. Appellant, under section 11 of the Uniform Declaratory Judgments Act (Acts 1927, c. 81), was made a party by reason of the pleaded fact that he claimed an interest in the subject-matter of this action and was made a party to answer concerning such interest. Appellee's petition presented the question of the constitutionality of chapter 59 of the Acts of 1929, supra, which concerns the rights and status of both the petitioner and defendant herein.

The petition of appellee for the declaratory judgment alleges that, at the general election, held in Knox county November 2, 1926, he was duly elected to the office of clerk of the Knox circuit court for the full term of four years. Thereafter, December 8, 1926, appellee received his commission of office from the Governor as such clerk elected November 2, 1926, for the term of four years, and, thereafter, January 3, 1927, appellee filed his bond as such clerk elect and took and subscribed his oath of office. February 25, 1928, appellee assumed and took over the office of such clerk, pursuant to his election and commission,and is now, and ever since has been, the duly elected, qualified, and acting clerk of the Knox circuit court.

Thereafter, at the Seventy-Sixth Regular Session of the General Assembly, the act was passed designated as chapter 59, Acts 1929, page 157, which act is for the purpose of changing the time of the beginning of the term of office of the clerk of the circuit court of Knox county at a time different than the expiration of the term of office of the then incumbent holding such office.

Appellant was elected clerk of the Knox circuit court for the full term of four years at the general election held November 4, 1930, and thereafter received from the Governor his commission of office.

It is further alleged that appellee, by virtue of his suit for declaratory judgment, desires to have his rights, status, and legal relations fixed and determined, and, also, that the court may determine whether the term of office of appellant Enmeier, as clerk elect of the Knox circuit court, will begin February 25, 1932, at the end of the term of appellee, as before stated, or whether the term of office of appellant as such clerk elect will begin January 1, 1933, as provided in the Act of the General Assembly, approved March 9, 1929, c. 59, supra; and further, that the petition presents the question whether or not the act last hereinbefore referred to violates certain sections of the Constitution of the state.

To this petition appellant Enmeier answered by general denial, and also affirmatively, alleging that at the election, November 7, 1922, appellee Blaize was elected to the office of clerk of the Knox circuit court for the full term of four years and received from the Governor his commission of office as such clerk, and, January 2, 1923, he filed his bond as such clerk elect and took and subscribed to his oath of office, and that, thereafter, February 25, 1924, appellee assumed and took over the office of such clerk, pursuant to his election and commission; that thereafter, at the general election, held November 2, 1926, appellee was re-elected to the office of clerk of the Knox circuit court for a second term of four years, and, after said election, on December 8, 1926, received from the Governor his commission of office as such clerk for the term of four years. January 3, 1927, appellee gave bond as such clerk and took and subscribed to his oath of office, and, thereafter, February 25, 1928, appellee assumed and took over the office of such clerk, pursuant to his election and commission, and that appellee is now, and ever since has been, the duly elected, qualified, and acting clerk of the Knox circuit court; and that appellee's term of office will expire February 25, 1932, at which time appellee will have been the duly elected, qualified, and acting clerk of the Knox circuit court for the period of eight consecutive years. Appellant was elected to the office of clerk of the Knox circuit court November 4, 1930, for the full term of four years, and received from the Governor a commission as such clerk; that the act of the General Assembly, passed at its Seventy-Sixth Regular Session, known as chapter 59, supra, in so far as it relates to the clerk of the Knox circuit court, is void, for the reason that it contravenes section 2 of article 6 of the Constitution of this state, and that it is also void for the reason that it contravenes section 2 and section 3, art. 15, of the Constitution, for which reasons the statute should be adjudged to be unconstitutional; and, by his affirmative paragraph of answer, asks the court to determine the validity of such act of the General Assembly hereinbefore designated as chapter 59, of the Acts of 1929, and to fix the date of the expiration of appellee's term of office as clerk of the Knox circuit court.

To appellant's affirmative answer, appellee demurred for the reason that such answer does not state facts sufficient to constitute a defense to appellee's declaration and complaint. The court sustained appellee's demurrer to appellant's affirmative answer. The cause was submitted upon an agreed statement of facts, which is not presented by the briefs, and made its finding for plaintiff, Blaize, appellee herein, that the allegations of his complaint are true, and that the defendant Enmeier, appellant herein, as clerk of the Knox circuit court will begin his term January 1, 1933, and is entitled to serve as such clerk for the full term of four years beginning and commencing January 1, 1933, upon which finding the court rendered judgment that the term of office of the defendant Enmeier, appellant herein, as clerk elect of the Knox circuit court, will begin January 1, 1933, and is entitled to serve as such clerk for the full term of four years, beginning and commencing January 1, 1933, and that the plaintiff, Blaize, appellee herein, recover from the defendant his costs.

The only error presented for decision upon appeal is the court's ruling upon the demurrer to appellant's affirmative paragraph of answer.

The Constitution provides that all general elections shall be held on the first Tuesday after the first Monday in November (section 14, art. 2), and 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 (section 2, art. 6, Const.).

[1] The letter of the Constitution provides the qualifications of voters, and that certain officers named in that instrument, which includes clerk of the circuit court, shall be elected by the voters at the time of holding general election. Article 6, § 2, Const. The spirit of the Constitution, which came into vital substantial existence at the time of its birth, is more outspoken than the letter wherein that instrument concerns the election by the voters of public officers. The right to elect public officers, as provided in the Constitution, is one which resides in the people as sovereign. This power may not be abridged or narrowed by the legislative department of government. State ex rel. Yancy v. Hyde (1889) 121 Ind. 20, 22 N. E. 644;Russell v. State ex rel. Crowder (1909) 171 Ind. 623, 633 (7), 87 N. E. 13.

[2] The sovereign people, not only provided for the office of clerk of the circuit court, but they fixed the length of the term of such office to be for a period of four years. The people further expressly stated their will by providing for the election of a successor of an incumbent who held his office, whose term of office should begin upon the expiration of the term of the predecessor in office, by stating that the predecessor should hold office only “until his successor shall have been elected and qualified.” Article 15, § 3, Const. This case does not deal particularly with the right of the appellee to hold over after the expiration of his term under the provision of article 15, § 3, of the Constitution. The question here to be determined (the successor to the incumbent in office having been elected and qualified) is, Does the successor's term begin at the expiration of the term of his predecessor, or may the legislative branch of the government delay the time at which the successor begins his term of office beyond the termination of the term of office of the incumbent?

Division Tenth of the Schedule to the Constitution provided that every person elected by popular vote and then in office, which office was continued by the Constitution, and every person who shall be so elected to any such office before the taking effect of the Constitution (except as in the Constitution otherwise provided), should continue in office until the term for which such officer had been elected shall expire, with the provision that the expiration should not extend for a longer period than the term prescribed for such office in the new Constitution. This provision of the Constitution, when considered with section 3, art. 15, of the Constitution, plainly shows that an officer shall not continue in office beyond the end of his term if, and when, a successor to him has been elected by the voters and he has qualified for the office.

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