State ex rel. Gibson v. Friedley

• Decision Date: 27 September 1893
• Docket Number: 17,107
• Citation: 34 N.E. 872,135 Ind. 119
• Parties: The State, ex rel. Gibson, Judge of the Fourth Judicial Circuit Court, v. Friedley
• Court: Indiana Supreme Court

34 N.E. 872

135 Ind. 119

The State, ex rel. Gibson, Judge of the Fourth Judicial Circuit Court, v. Friedley

No. 17,107

Supreme Court of Indiana

September 27, 1893

From the Jefferson Circuit Court.

Judgment affirmed.

A. G Smith, Attorney-General, M. Z. Stannard and C. L. Jewett, for appellant.

C. E Walker, for appellee.

OPINION

Dailey, J.

On the 28th day of August, 1893, the relator filed an information in the Jefferson Circuit Court, against the appellee, Friedley. By the information, it is averred that the relator is the judge of the Fourth Judicial Circuit of the State of Indiana, and that said appellee has usurped and intruded into said office, and detains the same from him, although he has demanded possession thereof; and judgment is prayed that the relator may be awarded the possession of said office, and all other proper relief.

To this information, the appellee, in the court below, filed his answer, pleading, especially, the authority by virtue of which he holds the possession of said office as judge, as against the said relator.

To this answer the appellant filed her demurrer, which was overruled, an exception being reserved to the decision of the court. There upon the appellant filed her reply, to which the appellee demurred, the demurrer being sustained, and an exception reserved on the part of the appellant. The appellant having elected to stand by the reply and declining to plead further, judgment was rendered in favor of the appellee, from which the relator prosecutes this appeal.

The errors assigned in this court are as follows:

First. That the answer of the appellee, William T. Friedley, in the court below, did not state facts sufficient to constitute a cause of defense.

Second. That the court below erred in overruling the demurrer to said appellee's answer.

Third. That the court below erred in sustaining the demurrer to appellant's reply.

It is not disputed that on the 4th day of March, 1893, Clark county alone constituted the Fourth Judicial Circuit of the State of Indiana. Elliott's Supp., section 263.

And the statute in force provided that the terms of court in said Fourth Judicial Circuit should be held as follows: "On the first Monday of February; the third Monday of April; the first Monday of September, and the third Monday of November, in each year;" to remain in session while the business of the court required. Acts of 1891, p. 68.

And, at said date, the county of Jefferson, alone, constituted the Fifth Judicial Circuit of the State of Indiana; and it was provided, by law, that the terms of court in said Fifth Judicial Circuit should be held as follows: "On the first Monday in January; the first Monday in April; the first Monday in September, and the first Monday in November," of each year; said terms to continue in session as long as the business of the court required.

On the 4th day of March, 1893, the Legislature of Indiana approved an act which purports to abolish the Fifth Judicial Circuit, and annex the territory heretofore constituting the Fifth Judicial Circuit, and change the time of holding the courts in the counties of Clark and Jefferson. The act will be found in the Acts of of 1893, on page 359, and is entitled "An Act entitled an act defining the Fourth Judicial Circuit of the State of Indiana, fixing the times of holding courts in said circuit; prescribing the limits of the terms thereof; providing for the judge thereof, and abolishing the Fifth Judicial Circuit of the State of Indiana, and repealing all laws in conflict herewith."

It will be observed that this title has no reference to, or mention of, courts in the Fifth Judicial Circuit. The first section reads as follows: "Be it enacted by the General Assembly of the State of Indiana, That on and after the first day of August, 1893, the Fifth Judicial Circuit of the State of Indiana, which is now constituted of the county of Jefferson, shall be abolished."

The second section provides, that on and after the first day of August, 1893, the counties of Clark and Jefferson shall constitute the Fourth Judicial Circuit of the State of Indiana.

The third section provides for the holding of the courts in the Fourth Judicial Circuit as by the second section constituted of the counties of Clark and Jefferson.

The fourth section provides that on and after the first day of August, 1893, the judge of the Fourth Judicial Circuit of the State of Indiana, as the same is now constituted, shall be the judge of the Fourth Judicial Circuit of the State of Indiana, as thereafter constituted by this act, and until his successor is elected and qualified.

This proceeding was instituted as a friendly one, with a view to testing the following questions:

First. What is the legal effect of the act of March 4, 1893, in view of the fact that the act abolishes the appellee's entire circuit, the term for which he was elected and qualified not having expired.

Second. If the act of March 4, 1893, is unconstitutional or inoperative, in so far as it undertakes to abolish the term for which appellee was elected, viz: from October 22, 1891, to October 22, 1897, will the same still have the effect of changing the terms of court in the counties of Clark and Jefferson?

At the time the act of 1893 was approved, the relator, George H. D. Gibson, was the sole judge of the Fourth Judicial Circuit, and the appellee, William T. Friedley, was the sole judge of the Fifth Judicial Circuit. The appellee, having declined to recognize the validity of the last mentioned act of the Legislature, upon the ground that the same is unconstitutional and void, or, at any rate, is inoperative, has continued in possession of said office, and in the discharge of the duties thereof in the county of Jefferson, and has declined to surrender the same to the relator.

The first question that naturally arises is as to the alleged error of the court in overruling the demurrer to appellee's answer; but as the questions attempted to be raised in all the assignments of error are the same, they may be disposed of together. The answer, omitting the caption and purely formal parts, reads thus: "The said defendant hereby enters his appearance to the above action, waives the issuing and service of process herein, and for answer to said information and complaint, says that he, said defendant, is a bona fide resident of Jefferson county, Indiana, and has been for more than thirty years last past; that he is now fifty-eight years old, and has been a voter and elector of said county, aforesaid, for the last thirty years or more and during all of said time he has been eligible to be voted for and to be elected to the office of circuit judge of the Fifth Judicial Circuit of the State of Indiana, and eligible to take and hold said office; that prior to the general election of November, 1884, the Fifth Judicial Circuit was composed of the counties of Jefferson and Switzerland, and so continued until February 4, 1891, when Switzerland, Ohio and Dearborn counties were erected into the Seventh Judicial Circuit, and Jefferson county, alone, was erected into the Fifth Judicial Circuit; that on the 28th day of February, 1889, the county of Clark, alone, was created the Fourth Judicial Circuit, and the relator was elected circuit judge of said Fourth Judicial Circuit, by the electors of Clark county, alone, on the _____ day of November, 1892, at the general election, and was, afterwards, commissioned as such judge, and entered upon the discharge of the duties of said office on the 19th day of November, 1892; that this defendant was duly and legally elected circuit judge of the Fifth Judicial Circuit, on the 4th day of November, 1884, for the term which was to commence on the 22d day of October, 1885; that he was duly commissioned for said term, qualified and entered upon the discharge of the duties of said judge, as aforesaid, and served the full term thereof; that he was again a candidate for election to said office of circuit judge of said Fifth Judicial Circuit at the general election, held November, 1890, and had no opposition, and was the only person voted for to fill said office; that there were cast 2,894 votes in Jefferson county, and 2,100 votes in Switzerland county, for judge of the Fifth Judicial Circuit of Indiana, at said election, and he received all of said votes so cast, and was duly elected circuit judge for said Fifth Judicial Circuit, for the term of six years, from the 22d day of October, 1891; that said votes were duly canvassed, and the result properly certified to the secretary of State, and the executive of State, the governor, issued to defendant a commission as judge of said Fifth Judicial Circuit, for the term of six years, commencing October 22d, 1891, and ending October 22d, 1897; that said defendant accepted said office and commission, and took the oath of office, which is indorsed on his commission, and a certified copy thereof was forwarded to the secretary of State, and by him filed in his office, to wit, November _____, 1890; that at the expiration of defendant's first term, he entered upon the discharge of the duties of said office aforesaid, and has tried to discharge the duties of said trust, to the best of his skill and ability; that he accepted said office in good faith, and entered into the possession of it peaceably, and as a matter of right, and has not forfeited, surrendered nor resigned the same, but is still acting in the capacity as aforesaid. And, he says that, at all times, he has discharged said duties of circuit judge, as aforesaid, within the bounds of Jefferson county, Indiana, since it alone has been created into a circuit, and that at no time has he attempted to exercise any of the duties of the judge of the Clark Circuit...