Jones v. Cavins

• Citation: 4 Ind. 305
• Parties: Jones v. Cavins
• Decision Date: 28 November 1853
• Court: Supreme Court of Indiana

4 Ind. 305

Jones v. Cavins

Supreme Court of Indiana

November 28, 1853

APPEAL from the Greene Circuit Court.

The judgment is affirmed with costs.

D McDonald and J. Sullivan, for the appellant.

I Blackford, G. G. Dunn, and W. T. Otto, for the appellee.

OPINION

Perkins J.

Information filed in the Greene Circuit Court at the April term, 1853, under art. 44, vol. 2, of the R. S. of 1852, by John Jones against Samuel R. Cavins.

The information states that at the general election in October, 1852, John Jones, the plaintiff, was elected auditor of Greene county; that he was subsequently commissioned, gave bond, and in March, 1853, was sworn, &c.; that he had demanded the books, &c., pertaining to the office, of Samuel R. Cavins, who was in possession of them and was usurping the exercise of the functions of said office, &c., and that Greene county contained over 1,000 polls, &c.

Cavins answered, stating that on the first Monday of August, 1848, he was elected clerk of the Circuit Court of said county for seven years from the 27th day of April, 1849, and was afterwards duly qualified, &c., whereby he became vested with the right to discharge the duties the exercise of which he was charged with usurping, inasmuch as the legislature, in 1844, passed an act which had not been repealed, abolishing the office of auditor in Greene county and attaching the duties that had pertained thereto, to the office of clerk in said county.

Demurrer to this answer overruled, and final judgment for the defendant, Cavins.

The question going to the merits of the case is, whether the local law under which Cavins was discharging a portion of the duties of his office as clerk, was continued in force by the constitution of 1851.

It will aid us in understanding it to glance a little backward in beginning our investigation.

The office of county auditor was not known to the former constitution of Indiana; nor was it to the laws under that constitution till 1841. The duties since that time assigned to it, in the counties where it has existed, were before that date mostly discharged by the clerks of the Circuit Courts, officers created by the old, and continued by the new, constitution. In 1841, the office of county auditor was created by statute. But in 1844, the legislature passed an act (Gen. Laws 1844, p. 46) abolishing it in the counties of Owen, Greene, Washington and Carroll, and restoring the duties then performed by the auditors to the clerks in said counties. This act had not been expressly repealed at the formation of the constitution of 1851, nor at the commencement of this suit, and under it and the general law, Cavins, the defendant, was, at those times, holding the office of clerk in Greene county, with a prospective term of several years.

In 1851, the new constitution was adopted, containing this provision, viz.: "All laws now in force, and not inconsistent with this constitution, shall remain in force until they shall expire or be repealed;" and this further provision, viz.: "Every person elected by popular vote, and now in any office which is continued by this constitution, and every person who shall be so elected to any such office before the taking effect of this constitution, (except as is in this constitution otherwise provided,) shall continue in office until the term for which such person has been or may be elected, shall expire: Provided, That no such person shall continue in office after the taking effect of this constitution, for a longer period than the term of such office in this constitution prescribed."

Now, it is very obvious that these two provisions continued Cavins in office as clerk, and continued in force the act conferring upon him the duties of the abrogated auditor's office, if said act was not inconsistent with some other clause or clauses of the new constitution. It is claimed that it was inconsistent with two of its provisions, to-wit, that which declares that in all cases "where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state," (art. 4, s. 23); and that which declares 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, auditor, recorder," &c. (Art. 6, s. 2).

That said act was not inconsistent with the former of these two provisions, is decided in The State v. Barbee, 3 Ind. R. 258, where it is held that that provision was prospective in its operation, and would only affect legislation under the constitution of which it formed a part. This point will, therefore, be no further considered here.

Was it inconsistent with the latter of said two provisions? Upon the affirmative of this question, the counsel for the plaintiff mainly rely. Let us examine it with care.

In August, 1851, Cavins is in the office of clerk of the Circuit Court of Greene county, to which office certain duties are attached by a local law, which duties pertain to the office of auditor in certain counties. The office of auditor does not exist in said Greene county. A new constitution for the state is formed, and, at that date, adopted, which provides that an auditor shall be elected in said county, "at the time of holding general elections," the first of which said elections is to take place on the second Tuesday in October, 1852. Now, it is clear that no conflict existed between the law under which Cavins was acting and this provision of the constitution, from August, 1851, to October, 1852, as till then no auditor was to be elected in Greene county, and, of course, could discharge no duties in it. But in October, 1852, Jones is elected auditor in said county, and the question now arises as to the relation between him and Cavins, the clerk. Is the latter bound to surrender a portion of his duties to the former, and, if so, what? It devolves upon Jones to point them out before they can be adjudged to him. No law prescribing the duties to be performed by the auditor has been passed since the constitution created his office; and the simple fact that he is auditor of Greene county, does not authorize him to invade the clerk's office and take from the clerk his books, &c., and the discharge of any of his duties. The office of auditor may exist without any duties attached to it. We have said no law had been enacted defining the duties of the auditor, but the constitution must also be looked into; for if his duties are there defined, his right to exercise them may be perfect without legislative action. Turning to it, we find this, and only this, ordained touching the point, viz., that all county officers, &c., shall "perform such duties as may be directed by law." Art. 6, s. 6.

The constitution, then, imposes no duties upon the auditor, but leaves him dependent, for any he may obtain the discharge of upon the legislature; and that body may or may not, at its pleasure, assign them to him, and, should it do so, the...