Haggerty v. Marion County Election Bd.
| Decision Date | 22 September 1964 |
| Docket Number | No. 30605,30605 |
| Parties | Judson F. HAGGERTY, as a registered and duly qualified voter in Marion County, Indiana, on behalf of himself and all others similarly situated, Appellant, v. MARION COUNTY ELECTION BOARD, Edwin McClure, Robert S. Smith, Charles Johnson, and each of them, Appellees. |
| Court | Indiana Supreme Court |
James F. Kelley, Indianapolis, for appellant.
Robert J. Fink, Indianapolis, for appellees.
MYERS, J., has heretofore declared himself disqualified to participate in the decision of this court.
ACHOR, C. J., and JACKSON, J., are of the opinion that the decision of the trial court should be reversed, while ARTERBURN and LANDIS, JJ., are of the opinion that the decision of the trial court should be affirmed.
The four judges participating being equally divided, normally under Burns' Sec. 2-3232, this cause should be continued to the next term, and then if the judges should be equally divided, the judgment should be affirmed. However, in this case both sides in open court agreed to waive this delay in view of the pending election.
A motion to dismiss the appeal was filed herein. However, in view of the fact that the judgment of the trial court must be affirmed under the circumstances, the petition to dismiss is overruled.
Accordingly, by reason of an even division of the judges of the court participating in this appeal, the judgment of the trial court is affirmed.
The separate opinions of each of the judges of this court follow.
I would reverse the decision of the trial court for the reasons which I stated comprehensively in a separate opinion in the case of State ex rel. Thomas v. Williams (1958), 238 Ind. 407, 151 N.E.2d 499.
The case of Marion County Election Board v. O'Brien (1960), 241 Ind. 36, 169 N.E.2d 287, is cited in a separate opinion as in supporting the decision of the trial court. A consideration of that case is therefore made necessary.
It is true that in O'Brien, supra, this court held that an appointee to a vacancy in the office of Clerk of the Circuit Court was entitled to hold office for the full unexpired term of his predecessor. However, our decision in that case was based upon the fact that:
'The Constitution of Indiana having made no provision concerning the filling of vacancies in the office of the Clerk of the Circuit Court or the tenure of any person appointed thereto, the Legislature, representing the people and exercising the power reserved to them, may, by law, provide for the filling of vacancies in the office of Clerk of the Circuit Court by appointment and fix the tenure of the appointee, within the limits of the constitutional four-year term.' [241 Ind. p. 50, 169 N.E.2d p. 293.]
The statute which this court held to be controlling in that case, provides:
'Whenever there has been or shall be a vacancy in the office of clerk of the circuit court of any county of this state, and when such vacancy shall have been or shall be filled by appointment, the person who is appointed to fill such vacancy shall hold office until the end of the term for which the predecessor of such appointee, whose unexpired term said appointee is serving, shall have been elected, and such appointee shall, without election, serve the full unexpired term of such predecessor.'
Acts 1929, ch. 18, Sec. 1, p. 38, being Sec. 49-2702, Burns' 1951 Repl.
Therefore, this court in the O'Brien case, supra, held that, as provided in the above statute, the person appointed to fill the vacancy in the office of clerk should serve the full unexpired term of that office.
The constitutional and statutory provisions governing the filling of a vacancy in the offices of clerk and sheriff are altogether different, however.
Article 6, Sec. 2, in effect holds that 'the time of holding general elections,' is proper for the election of a sheriff. 1
Article 6, Sec. 11, provides for a fixed four-year cycle in the office of sheriff.
Article 6, Sec. 9, provides that vacancies in the office of sheriff, 'shall be filled in such manner as may be prescribed by law.'
Section 49-405, Burns' 1951 Replacement, provides:
'The board of county commissioners shall fill all (other) vacancies in county or township offices, except such township or other offices the vacancies in which are otherwise provided for; and such appointment shall expire when a successor is elected and qualified, who shall be elected at the next general or township election, as the case may be, proper to elect such officers.' [1 R.S. 1852, ch. 115, Sec. 4, p. 512.]
Thus it is reasonable to conclude that the O'Brien case, supra, tends to support the position of the appellant rather than the appellee in this case since that case sustains the statutory provision for filling vacancies in the office of clerk and appellants seek to sustain the statutory provision for filling vacancies in the office of sheriff.
It is my opinion that the constitution and the supporting statutes clearly support appellant's position in this case; and that the reasoning in the O'Brien case, supra, further supports that position; but, if, as stated in the separate opinion of Judge Arterburn, 'this question is a difficult and close one of interpretation, with little held to be drawn from the constitution or precedent in this state,' then in my opinion the generally recognized and long established public policy should prevail--that vacancies in elective public office be filled by election at the earliest date proper for such election. Enmeier v. Blaize (1932), 203 Ind. 475, 181 N.E. 1; 67 C.J.S. Officers Sec. 53(b) p. 217.
The fact that under a special constitutional provision the officer elected merely serves for the unexpired term of the office is not negatory of the general rule.
This is an appeal from an adverse decision of the Marion Circuit Court in an action instituted therein by Judson F. Haggerty as a registered qualified voter of Marion County, Indiana, on behalf of himself and all others similarly situated as appellant against the Marion County Election Board, Edwin McClure, Robert S. Smith, Charles E. Johnson and each of them, for a declaratory judgment for an interpretation of certain sections of the constitution and statutes of the State of Indiana, as they pertain to the filling of vacancies in the office of Sheriff and the time for placing said office on the ballot for election.
The parties stipulated the facts as follows: James Hiner was elected in the November general election of 1962 to the office of Sheriff of Marion County for a term of four (4) years, to expire December 31, 1966. He assumed the duties of that office on January 1, 1963. Sheriff Hiner died on September 27, 1963, leaving a vacancy in the office of Sheriff. On October 1, 1963, the commissioners of Marion County, Indiana, met and appointed Robert Fields to fill the vacancy in the office of Sheriff of said county. Thereupon, on that day Robert Fields posted bond, qualified and assumed the duties of Sheriff.
Thereafter, appellant sought to have the Marion County Election Board place the office of Sheriff on the ballot in the 1964 elections. A majority of such Board advised appellant that they would not put the office of Sheriff on the ballot in either the primary or general elections of 1964.
Thereupon, on the 31st day of December, 1963, appellant filed his complaint for a declaratory judgment in the Marion Circuit Court, in which complaint he set out the facts as aforesaid and the sections of the Constitution and Statutes applicable and prayed for judgment requiring the office of the Marion County Sheriff be placed on the ballot in the primary and general elections of 1964.
To this complaint appellees filed an answer denying all allegations of fact in appellant's complaint. Appellant and appellees then entered into an agreed stipulation as to all the facts of this case, leaving only the question of law to be decided by the court. This sole issue stated in its simplest terms is:
Trial was had to the court, without the intervention of a jury, resulting in a finding and judgment for appellee, which reads in pertinent part as follows:
'1. That Robert Fields is the duly appointed and lawful Sheriff of Marion County, Indiana, having heretofore been appointed on October 1, 1963, to fill the unexpired term of James O. Hiner, deceased, whose term would have expired December 31, 1966.
'2. That said Robert Fields is entitled to serve the full unexpired term of James O. Hiner, or until December 31, 1966.
'3. That defendants herein are correct in not holding and refusing to hold an election for the office of Sheriff of Marion County, Indiana, either in the Primary or General Elections in 1964.
'4. That Plaintiff's contention is incorrect, and that the law is contrary thereto.
'WHEREFORE IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that Robert Fields is the duly appointed and lawful Acting Sheriff of Marion County, Indiana, and is entitled to serve as such by virtue of his appointment until December 31, 1966, which is to fill the unexpired term of James O. Hiner, deceased.
'/s/ John L. Niblack'
Appellant filed motion for a new trial, which motion was overruled and this appeal was thereupon perfected. The Appellant's motion for new trial was on the single ground:
'The decision of the court is contrary to law.'
Appellant's assignment of errors is the single specification:
The sections of the constitution and the statutes applicable to the case at bar are as follows:
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