Marion County Election Bd. v. O'Brien, 29962

• Decision Date: 26 September 1960
• Docket Number: No. 29962,29962
• Citation: 241 Ind. 36,169 N.E.2d 287
• Parties: MARION COUNTY ELECTION BOARD, and Mark W. Gray, Robert S. Smith, and Edwin McClure, as Members of such Board, and Edwin McClure, Clerk of the Marion Circuit Court, 19th Judicial Circuit, Appellants, v. Jack O'BRIEN, Paul Lustgarten, Mark W. Gray, and others similarly situated, Appellees.
• Court: Indiana Supreme Court

Page 287

169 N.E.2d 287

241 Ind. 36

MARION COUNTY ELECTION BOARD, and Mark W. Gray, Robert S Smith, and Edwin McClure, as Members of such Board, and Edwin McClure, Clerk of the Marion Circuit Court, 19th Judicial Circuit, Appellants, v. Jack O'BRIEN, Paul Lustgarten, Mark W. Gray, and others similarly situated, Appellees.

No. 29962.

Supreme Court of Indiana.

Sept. 26, 1960.

Donald M. Ream, Robert J. Rutherford, Smith & Yarling, Robert S. Smith, Indianapolis, for appellants.

Duge Butler, Jr., Ira Haymaker, Indianapolis, for appellees.

BOBBITT, Judge.

This action was brought under the Uniform Declaratory Judgments Act, Acts 1927, ch. 81, being § 3-1101 et seq., Burns' 1946 Replacement, to determine the right and duties of the Marion County Election Board and the members thereof, as they relate to the election of a Clerk of the Marion Circuit Court, at the general election to be held on November 8, 1960.

Because of the public interest and concern in the determination of this case, and the written request of all parties thereto so to do, it has been advanced on the docket for immediate consideration.

The situation which gives rise to the questions here presented is as follows:

On November 4, 1958, one Harry C. Gasper was elected Clerk of the Circuit Court of Marion County, Indiana, for a term of four years commencing on the first day of January, 1959, and ending on the 31st day of December, 1962. Mr. Gasper qualified as provided by law and assumed the duties of the office on January 1, 1959, and performed the duties thereof until his death on April 7, 1959.

On April 8, 1959, appellant, Edwin McClure, was duly appointed and commissioned by the Governor of Indiana to the office of Clerk of the Marion Circuit Court. He immediately qualified as provided by law and assumed the duties of such office, which he has continued to perform.

Trial was had by the court which found that a dispute existed between the parties to this action as to whether appellant, Edwin McClure, should serve the full unexpired term of the late Harry C. Gasper or whether an election for the office of the Clerk of the Marion Circuit Court should be held at the general election in 1960; and, if an election should be held, whether such newly elected clerk should serve for the unexpired portion of Mr. Gasper's term or a full term of four years. The court further found that the 'Indiana Constitution and laws require an election for said office to be held at the primary and general election of this year [1960]', and 'that the person elected * * * shall serve for a full four-year term, beginning January 1, 1961.'

The determinative question here presented is the validity of ch. 18, § 1, p. 38, of the Acts of 1929, being § 49-2702, Burns' 1951 Replacement, which is as follows:

'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.'

Appellants herein assert that the question of whether or not a Clerk of the Marion Circuit Court should be elected at the general election to be held on November 8, 1960, is fully and completely answered by the provisions of § 49-2702, supra, and that it is a valid enactment.

Appellees assert that such § 49-2702, supra, is invalid as being in contravention of 'various constitutional provisions,' viz., Article 1, § 1, Article 2, § 14, Article 5, § 18, Article 6, § 2, and Article 6, § 9, of the Constitution of Indiana.

The general rule applicable here is that the "Constitution provides the only standard for determining the validity of a statute", and in doing so the court will consider only the statute in question and the sections of the Constitution of Indiana with which it is asserted to be in conflict. Hanley v. State, Dept. of Conservation et al., 1955, 234 Ind. 326, 332, 123 N.E.2d 452, 126 N.E.2d 879.

'It is the duty of the court to sustain the constitutionality of an act of the General Assembly if it can be done by a reasonable construction, and any doubt concerning the constitutionality of an act must be resolved in favor of its validity.' 5 Ind. Law Encyc., Constitutional Law, § 38, p. 310; State, P. R. R. Co. et al. v. Iroq. Cons. Dist. Ct. et al., 1956, 235 Ind. 353, 356, 133 N.E.2d 848; Wright-Bachman, Inc. v. Hodnett et al., 1956, 235 Ind. 307, 316, 133 N.E.2d 713; Fairchild, Prosecuting Atty., etc. v. Schanke et al., 1953, 232 Ind. 480, 483, 113 N.E.2d 159.

The burden is upon appellees in this case to show wherein the statute here in question is invalid. Weisenberger v. State, 1931, 202 Ind. 424, 431, 175 N.E. 238; Hanley v. State, Dept. of Conservation et al., supra, 1955, 234 Ind. 326, 332, 123 N.E.2d 452, 126 N.E.2d 879.

With these general rules as our guide, we will consider the sections of the Constitution of Indiana, as above-mentioned, in the order of their importance as they may pertain to the issues here presented.

First: We do not dispute 'that all power is inherent in the People' as provided in Article 1, § 1, supra. However, appellees have failed to show any facts to sustain their contention that § 49-2702, supra, in any way violates or contravenes this or any other provision of Article 1, § 1, supra.

However, in support of such contention appellees assert that '[t]he right to elect public officers, as provided in the Constitution is one which resides in the people as sovereign.' We have no quarrel with this statement. The principle therein expressed is the very foundation of our form of government. However, we cannot see where any constitutional rights of appellees would be violated if a Clerk of the Marion Circuit Court is not elected at the general election to be held in November of 1960.

In support of their position here appellees apparently rely upon Enmeier v. Blaize, 1932, 203 Ind. 475, 482, 181 N.E. 1, 3, wherein it is said:

'To elect such successor at the November election, 1930, was a right of the people reserved by them in their Constitution.'

This is a correct statement of the law as it applied to the factual situation in that case.

The Enmeier case involved the constitutionality of ch. 59 of the Acts of 1929, which attempted to extend the beginning of the term of certain offices, including the Clerk of the Knox Circuit Court, to the first day of January 'next following the term of office of the present incumbent.' ¹ Appellee-Blaize was elected to a second term as Clerk of the Knox Circuit Court at the general election held in November of 1926. His term of office began February 25, 1928, and expired February 25, 1932, at which time he would have served for a period of eight consecutive years. Appellant-Enmeier was elected Clerk of the Knox Circuit Court at the November election in 1930, and duly commissioned by the Governor.

The Act there in question (ch. 59 of the Acts of 1929) would have extended the term of appellee-Blaize to January 1, 1933, thus making it unnecessary to hold an election for such office in 1930, and of postponing the election of a successor to the incumbent Blaize until the general election in November of 1932. At pages 481-482 of 203 Ind., at page 3 of 181 N.E., this court said:

'But the incumbent appellee was elected at the general election in November, 1926, and to comply with regularity in election of clerks of the circuit court, in the election of appellee's successor, such successor should be elected at the general election four years thereafter, to wit, at the general election in November, 1930. To elect such successor at the November election, 1930, was a right of the people reserved by them in their Constitution. This right of the people may not be taken from them or abridged, either directly or indirectly by any agency or department of government.'

To postpone the election of the Clerk of the Knox Circuit Court for more than four years was in direct violation of the provisions of Article 6, § 2, supra, of the Constitution of Indiana, and this court correctly held that to elect a Clerk of the Circuit Court every four years was 'a right of the people reserved by them in their Constitution.' That is not the situation in the case now before us.

Gasper was elected Clerk of the Marion Circuit Court at the general election held in November of 1958, and if his successor is not elected until the general election four years thereafter, to-wit: at the general election to be held in November of 1962, no constitutional rights of the people will be abridged, either directly or indirectly. Such a procedure would be in full compliance with 'regularity in the election of clerks of the circuit courts,' and with the provisions of Article 6, § 2, of the Constitution of Indiana.

Section 49-2702, supra, does not, under the factual situation presented here, violate any of the provisions of Article 1, § 1, of the Constitution of Indiana.

Second: Article 6, § 2, supra, of the Constitution of Indiana provides, in pertinent part, as follows:

'There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, * * *. The Clerk, * * * shall continue in office four years; * * *.'

This section of the Constitution provides only for the election of the Clerk of the Circuit Court and other officers with which we are not here concerned. It neither mentions the filling of any vacancies which might occur in these offices nor does it contain any provision concerning the term for which any person appointed to fill a vacancy shall serve.

As indicated hereinabove, § 49-2702, supra, when applied to the facts in the present case, does not in any way violate any...