Kirkpatrick v. King, 28647

CourtSupreme Court of Indiana
Citation228 Ind. 236,91 N.E.2d 785
Docket NumberNo. 28647,28647
PartiesKIRKPATRICK v. KING et al.
Decision Date19 April 1950

Walter Myers, Jr., Obed T. Kilgore, Glenn Slenker, Indianapolis, for appellant.

George B. Davis, Glenn T. Williams, Greenfield, for Charles L. King, Hancock Election Board, Gerald H. Norris, Walter Barrett and Nile Matlock as members thereof.

J. Emmett McManamon, Atty. Gen., Earl R. Cox, Deputy, Norman J. Beatty, Deputy, for appellees.

EMMERT, Judge.

Appellant is the sheriff of Hancock County. He was elected on the Democratic ticket in the general election of 1948, and qualified and took office January 1, 1949. On October 24, 1949, appellee Charles L. King publicly announced he would be a candidate for such office on the same party ticket in the primary election to be held in the county in May, 1950. On December 17, 1949, the Hancock County Election Board duly adopted a resolution that the names of candidates for sheriff be placed on the ballots in the primary and general elections to be held in 1950, which was in accordance with the position and contention of the State Election Board. Appellant sued in the trial court for a declaration of his rights, asserting that there would be no vacancy in the office of sheriff in Hancock County to be filled by the general election held in 1950, and that he would continue to hold this office until January 1, 1954, by virtue of the amendment to Article 6 of the Constitution, by the adoption of § 11 of said Article at the general election in 1948. The trial court found appellant was entitled to a declaratory judgment, but against him on the issue that he was entitled to hold over, and adjudged that the amendment 'does not entitle a sheriff whose term commenced on January 1, 1949, to an additional term of four years commencing on January 1, 1951.'

No cross-errors are assigned by appellees, and their briefs present no question as to the availability of the action for a declaratory judgment, and in view of the public interest in the determination of the constitutional questions, we will treat the complaint as one for a declaration of rights under §§ 29-3004, 29-3104, 29-3602, 29-3604, 29-3605, 29-3606, 29-3607, 29-3617, 29-3618, 29-4801, 29-5001, and 29-5212, Burns' 1949 Replacement, sections of the Indiana Election Code, as affected by § 11 of Article 6 of the Constitution. See Anderson, Declaratory Judgments p. 800, § 327.

Before the adoption of the amendment, the Constitution did not provide for uniformity throughout the state as to the time all the sheriffs began their official terms. Section 2 of Article 6 of the Constitution provided for the election of sheriffs at the general election, who should continue in office two years, but that no sheriff should be eligible to the office of sheriff for more than four years in any period of six years. 1

Section 11 of Article 6 now provides: 'Notwithstanding any other provision hereof, the sheriff of each county shall be elected in the general election held in the year 1950 and each four years thereafter. The term of office of each such sheriff shall be four years beginning upon the first day of January next following his election and no person shall be eligible to such office more than eight years in any period of twelve years: Provided, however, that any elected sheriff who shall hold said office on December 31, 1950, and who shall have been elected to said office for a period of less than two consecutive years immediately preceding, shall continue in said office for the four year term commencing January 1, 1951.' This was adopted at the time of the general election in 1948, 2 and became effective upon the closing of the polls at 6 o'clock P.M., November 2, 1948. Section 1 of Article 16 of the Constitution of Indiana. 3 In re Todd, 1935, 208 Ind. 168, 193 N.E. 865; Kimberlin v. State ex rel. Tow, 1892, 130 Ind. 120, 29 N.E. 773, 14 L.R.A. 858, 30 Am.St. 208; Township of Louisville v. Savings Bank, 1881, 104 U.S. 469, 26 L.Ed. 775.

In construing a constitutional provision, many of the well established rules for statutory construction apply. In re Todd, 1935, 208 Ind. 168, 193 N.E. 865, supra; 12 C.J. 699, § 42; 16 C.J.S., Constitutional Law, § 15, p. 51; 11 Am.Jur. 658, § 49; State ex rel. Moodie v. Bryan et al., 1905, 50 Fla. 293, 39 So. 929. The primary object in construction is to ascertain the 'common understanding' as to the meaning of any provision entertained by 'both those who framed and those who ratified' it. Bishop v. State ex rel. Griner, 1898, 149 Ind. 223, 230, 48 N.E. 1038, 1040, 39 L.R.A. 278, 63 Am.St.Rep. 270, 279. If there be any doubt concerning any constitutional provision, 'The court should also look to the nature and objects of the particular powers, duties, and rights in question, with all the light and aids of cotemporary history, and give to the words of each provision just such operation and force, consistent with their legitimate meaning, as will fairly secure the end proposed. Kendall v. U. S. [ex rel. Stokes], 12 Pet. 524 ; Prigg v. Commonwealth, 16 Pet. 539 .' State v. Gibson, 1871, 36 Ind. 389, 391, 392, 10 Am.Rep. 42. See also Kelso v. Cook, 1916, 184 Ind. 173, 110 N.E. 987, Ann.Cas.1918E, 68; I Cooley's Constitutional Limitations (8th Ed.) p. 141.

It is conceded by the parties to this appeal that before the adoption of the amendment, in at least eleven counties the sheriffs, who were elected in the general election in 1948, did not begin their terms until January 1, 1950. The official Roster of state and local officials of Indiana for 1948 discloses that in fourteen counties sheriffs did not begin their terms until January 1, 1950, and in Jefferson County the sheriff began a new term on November 15, 1948. We must presume that the General Assembly, and the voters who ratified the amendment, were aware of this situation, and it was their expressed intention not only to change the term of the office of sheriff from two years to four years, but also to establish a definite uniform cycle for the beginning and ending of all such terms throughout the state.

It has been suggested that the first words of the amendment, 'Notwithstanding any other provision hereof,' (italics supplied), are meaningless. The amendment is not to be considered as an isolated bit of design and color, but it must be seen as an integral part of the entire harmonious picture of the constitution. It is true that it is superimposed upon that with which it is in direct conflict, but when the amendment is viewed in the light of these principles, there is no ambiguity. See Tucker v. State, 1941, 218 Ind. 614, 35 N.E.2d 270; Griebel v. State ex rel. Niezer, 1887, 111 Ind. 369, 12 N.E. 700; Steele, Hopkins & Meredith Co. v. Miller, 1915, 92 Ohio St. 115, 110 N.E. 648, L.R.A.1916C, 1023, Ann.Cas.1917C, 926; State ex rel. Collins v. Jackson, 1919, 119 Miss. 727, 81 So. 1; 11 Am.Jur. 663, 664, § 54. The word 'hereof' refers to the constitution with its former fixing of the sheriffs' term at two years, as stated by § 2 of Article 6, which is still in force as to officers other than sheriff. Griebel v. State ex rel. Niezer, 1887, 111 Ind. 369, 12 N.E. 700, supra; 11 Am.Jur. 663, 664, § 54; I Cooley's Constitutional Limitations, 8th Ed., p. 129.

Offices created by a constitution may be abolished by a constitution for, 'The power that creates offices can destroy them.' Coffin v. State ex rel. Norton, 1855, 7 Ind. 157, 159. An incumbent officer may have his term cut short by the adoption of a new constitution. Starry v. Winning, 1855, 7 Ind. 311. 'Public officers have no proprietary interest in their offices or any right of property in the prospective compensation attached thereto.' State v. Frizzell, 1884, 31 Minn. 460, 467, 18 N.W. 316, 319. No incumbent sheriff has any vested right in his term of office as against a change thereof by the adoption of a constitutional amendment. State v. Frizzell, 1884, 31 Minn. 460, 18 N.W. 316, supra.

Moreover, the appellant was not elected sheriff prior to the adoption of the constitutional amendment. In contemplation of law he was elected at 6 o'clock P.M. at the time the polls closed. Kimberlin v. State ex rel. Tow, 1892, 130 Ind. 120, 29 N.E. 773, 14 L.R.A. 858, 30 Am.St.Rep. 208, supra. But the amendment was adopted at the same time, and his rights as a public officer were limited by the superior force of the constitution effective at the time of his election.

The appellant contends that although he took office January 1, 1948, for a term which would extend through December 31, 1950, yet he was elected to said office for a period less than two consecutive years immediately preceding, and so by virtue of the amendment and his election in 1948 he should have another four year term beginning January 1, 1951, thus making a total of six consecutive years. It is clear that those sheriffs who were elected in the general election of 1948 but would not begin their terms until January 1, 1950, on December 31, 1950, would have been elected for a period of less than two consecutive years, and so by virtue of the proviso clause of the amendment would continue to hold office until January 1, 1955, thus making their term five years. It was the evident intent of the amendment not to shorten an elective term to one year, but certainly it does not follow that it was the intention of the General Assembly who submitted the amendment, and the voters who ratified it, that the seventy-seven sheriffs of the state who were elected at the general election in 1948 for a two year term, and on December 31, 1950, will have served said full two year term, should by virtue of such election have their term extended for an additional four years. If that were true, there would be no necessity of having the constitutional provision for an election of sheriffs in the year 1950, except for those who were appointed to fill out unexpired terms, and the one sheriff of Jefferson County.

'The general...

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