Gemmer v. State ex rel. Stephens

• Decision Date: 22 June 1904
• Docket Number: No. 20,374.,20,374.
• Citation: 71 N.E. 478,163 Ind. 150
• Parties: GEMMER et al. v. STATE ex rel. STEPHENS.
• Court: Indiana Supreme Court

163 Ind. 150

71 N.E. 478

GEMMER et al.

v.STATE ex rel. STEPHENS.

No. 20,374.

Supreme Court of Indiana.

June 22, 1904.

Appeal from Circuit Court, Warren County; Joseph M. Rabb, Judge.

Mandamus by the state, on the relation of William H. Stephens, against Frederick L. Gemmer and another. From a judgment awarding the writ, defendants appeal. Affirmed.Hawkins, Smith & Hawkins and Merrill Moores, for appellants. Stansbury & Billings and A. C. Harris, for appellee.

DOWLING, J.

This was a proceeding by the state on the relation of the appellee, Stephens, for a writ of mandate against the appellants, who were respectively the chairman and secretary of the Republican county committee of Warren county, to compel the appellants to certify the name of the relator to the board of election commissioners of said county as the Republican candidate for county treasurer to be voted for at the general election in 1904. A demurrer to the alternative writ was overruled, the appellants refused to plead further, a peremptory writ was granted, and judgment was rendered against the appellants. Error is assigned upon the ruling on the demurrer.

The material facts recited in the alternative writ were as follows: That the relator had filed his verified complaint in said court showing that he was a citizen of the United States and of the state of Indiana; that he was 50 years of age, and had resided in Warren county all his life; that he was a member of the Republican Party; that said party at the last general election in said county and state cast a majority of all the votes which were cast, and that said party had, and for many years maintained, a county organization in said county consisting of a county committee, and a chairman and secretary duly chosen in the manner prescribed by law; that on January 9, 1904, said Republican county organization gave notice that on February 6, 1904, there would be held in the several voting precincts of said county a Republican voting convention for the purpose of nominating candidates for various offices to be voted for at the next general election to be held on the first Tuesday after the first Monday in November of said year; that at said date said convention was held agreeably to said notice, and for the purpose of making such nominations; that at the general election held in the year 1900 Peter Fleming, a duly qualified person, was elected to the office of county treasurer of said county for a period of two years; that he was commissioned and entered into said office January 1, 1902; that afterwards, in 1902, said Fleming was again elected to said office, and at the expiration of his said first term entered at once upon a second term under a commission duly issued to him, and is still in such office of county treasurer; that on January 1, 1906, said Fleming will have served two full terms, to wit, four calendar years, continuously as the lawfully elected treasurer of said county, and that at the expiration of said period his eligibility to hold said office will cease, and said office will become vacant, by virtue of article 6, § 2, of the Constitution of this state; that at said voting convention held February 6, 1904, the persons participating therein proceeded to nominate a successor to the said Peter W. Fleming in said office of county treasurer to be voted for at the general election to be held November 8, 1904, and that the relator received a majority of all the votes cast at all the voting precincts, and was duly nominated as the Republican candidate for treasurer of said county to succeed the said Fleming in said office, and to be voted for at said general election on November 8, 1904, and that after a canvass of all the votes cast at said convention he was declared to be the nominee thereof for said office; that Frederick L. Gemmer is the chairman of the Republican central committee of said Warren county, and that Chester G. Rossiter is the secretary of said committee; that said relator being such nominee for said office, he did, before bringing this suit, to wit, on March 12, 1904, in proper manner and form demand of the said chairman and secretary that they place the relator's name on the certificate of nominations made by said county convention, setting forth his said nomination, together with the other facts required to be stated in said certificate, so that relator's name could be printed on the ballot, and he could be voted for at the said next general election; that thereupon the said chairman and secretary, admitting that the relator was duly nominated as a candidate for said office of county treasurer by the Republican Party of said county, refused to insert his name in the said certificate for the sole reason that by the act of the General Assembly of said state approved February 11, 1903, it was provided in substance and effect that no successor to the said Fleming as county treasurer of said county could or should be elected at the electionof 1904, nor until the general election to be held in the year 1906; that the said act is unconstitutional and void; that, unless the court will, by its mandate and judgment, compel the said chairman and secretary to insert the name of the relator in the said certificate, his name cannot be presented to the electors of said county as a candidate for said office of treasurer to be voted for at said election, and that thereby he will be greatly injured; that he has no other remedy; that, if his name is properly certified and printed on the ballots as aforesaid, he will receive at said election a majority of all the votes to be cast for county treasurer of said county, and will thereby be entitled to have said office, and enter upon its duties, immediately upon the expiration of the said second term of the said Peter W. Fleming. The alternative writ required the said chairman and secretary to insert the relator's name in the proper certificate as such nominee for the office of county treasurer, and to appear before the court on March 26, 1904, to show cause, if any they had, why the same should not be done. The ground of the demurrer was that the alternative writ did not state facts sufficient to constitute a cause of action.

The only question presented and argued by counsel is the constitutionality of the act of February 11, 1903 (Acts 1903, p. 24, c. 13). Omitting the preamble, that act is as follows:

“Section 1. Be it enacted by the General Assembly of the state of Indiana, that the terms of office of all judges of circuit, superior and criminal courts in this state, of all prosecuting attorneys, and of all county auditors, county treasurers, clerks of the circuit court, county sheriffs, county recorders, county assessors, county coroners, and county surveyors, hereafter elected in this state, shall begin on the first day of January next succeeding their election: provided, that, in all cases where persons were elected to any of said offices at the general election in November, 1900, for a term of four years, whose term of office did not begin until after January 1, 1901, and in all cases where persons were elected to any of said offices at the general election in November, 1902, for a term of two years, whose term of office did not begin until after January 1, 1903, no successors to such officers shall be elected until the general election in the year 1906. In all cases where persons were elected to any of said offices at the general election in November, 1900, for a term of six years, whose terms of office did not begin until after January 1, 1901, and in all cases where persons were elected to any of said offices at the general election in November, 1902, for a term of four years, whose terms of office did not begin until after January 1, 1903, no successors to such officers shall be elected until the general election in the year 1908. In all cases where persons were elected to any of said offices at the general election in November 1902, for a term of six years, whose terms of office did not begin until after January 1, 1903, no successors to such officers shall be elected until the general election in the year 1910.

“Sec. 2. In all cases where vacancies occur in any of said offices by reason of the death or resignation of any such officer, or by reason of the expiration of his term of office, or in any other manner before January 1, 1904, and a successor is appointed to fill such vacancy, such appointee shall hold his office by virtue of such appointment only until January 1, 1904, and if any vacancies should occur in any of said offices after January 1, 1904, and such vacancies are filled by appointment, such appointees shall hold until the first day of January next succeeding the next general election held after such appointment.

“Sec. 3. All laws and parts of laws in conflict herewith are hereby repealed.”

The preamble of the act declares that it will promote the public interests to have the terms of all the officers named in the act begin and end at a uniform time, and to have their official year and the calendar year begin at the same time; and that it will also promote the public interests to have the official terms of all of said officers begin with the beginning of the calendar year next succeeding their election, instead of at long and irregular intervals as at present. Therefore, for the purpose of securing the desired uniformity, the statute is enacted.

Fleming, the present incumbent of the office of county treasurer of Warren county, was elected for his second term at the general election held in November, 1902, for a term of two years. As the law stood when he was elected, this term began January 1, 1904, and will expire by its constitutional limitation January 1, 1906. Acts 1897, p. 288, c. 185 (section 7989a, Burns' Ann. St. 1901). The act before us postpones the election of a successor to Fleming until the general election in November, 1906, and provides that such successor shall not take the...