State ex rel. Thomas v. Williams

• Decision Date: 25 June 1958
• Docket Number: No. 29524,29524
• Citation: 238 Ind. 407,151 N.E.2d 499
• Parties: The STATE of Indiana, on the Relation of John H. THOMAS, Appellant, v. Hugh WILLIAMS, Appellee.
• Court: Indiana Supreme Court

Page 499

151 N.E.2d 499

238 Ind. 407

The STATE of Indiana, on the Relation of John H. THOMAS, Appellant, v. Hugh WILLIAMS, Appellee.

No. 29524.

Supreme Court of Indiana.

June 25, 1958.

S. Hugh Dillin (of Dillin & Dillin), Petersburg, for appellant.

Shake & Shake, Vincennes, for appellee.

BOBBITT, Chief Justice.

ARTERBURN, J., has heretofore declared himself to be incompetent ot participate in the decision in this case.

BOBBITT, C. J., and ACHOR, J., are of the opinion that the decision of the trial court should be affirmed, while EMMERT and LANDIS, JJ., are of the opinion that the decision of the trial court should be reversed and the appellant granted a new trial.

The four judges participating being equally divided at the last term of court and being still equally divided at this term, the judgment of the trial court is affirmed without costs. Section 2-3232, Burns' 1946 Replacement, Acts 1881 (Spec.Sess.) ch. 38, § 654, p. 240. In re Collinson's Estate (Ostheimer v. McNutt), 1952, 231 Ind. 605, 106 N.E.2d 225, 108 N.E.2d 700.

Separate opinions covering material points in the case arising from the record follow.

ACHOR, Judge (separate opinion).

This cause is before this court on an alleged error of the Knox Circuit Court which sustained a demurrer to the appellant's complaint.

At the general election held on November 2, 1954, Francis E. Thomas was elected sheriff of Knox County. He qualified and served as such until August 24, 1956, on which date he died. On August 28, 1956, the Board of Commissioners of the County of Knox appointed the appellant to serve as sheriff of that county until his successor was elected and qualified. Appellant promptly qualified and assumed office. Subsequently the Democratic Central Committee of Knox County nominated the appellee as its candidate for the office, and the Republican State Central Committee named a Clyde A. Stalcup as its candidate, to be voted upon at the general election November 6, 1956. The appellee was elected. Thereafter, on December 3, 1956, appellee was commissioned by the Governor of Indiana and, on the same day, qualfied as sheriff by taking the oath and filing the bond required by law. Appellant challenged the appellee's right to said office by an action in quo warranto. Appellee demurred to the complaint and the court below sustained said demurrer. Appellant refused to plead over and suffered judgment to go against him. This appeal followed.

Appellant contends that Article 6, § 11 of the Constitution of Indiana, adopted November 2, 1948, precluded the election of a sheriff of Knox County at the general election held on November 6, 1956, and that appellant, by reason of his appointment, is entitled to serve for the full term of Francis E. Thomas, deceased, which term expires January 1, 1959. On the other hand, appellee asserts that Article 6, § 11, supra did not change the law regarding the filling of vacancies during the unexpired term of the office, but merely provided that the term of office of sheriff should thereafter be four years and that thereafter the terms of all such offices conform to a definite and uniform cycle. Therefore, appellee contends that it was proper, under the law, for the voters of Knox County to elect a sheriff at the general election in 1956, the only difference being that such election is limited to the remainder of the unexpired term of Francis E. Thomas, deceased, originally elected to the office, which term expires January 1, 1959.

The law which deals specifically with the filling of vacancies in public office is as follows:

'Vacancies in county, township, and town offices, shall be filled in such manner as may be prescribed by law.' Art. 6, § 9, Constitution of Indiana.

Under the direction of this section, the General Assembly has enacted the following statute, which 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.' § 49-405, Burns' 1951 Repl., 1 R.S.1852, ch. 115, § 4, p. 512.

When applying these provisions to factual circumstances this court has stated that it is the spirit of the law to avoid, as far as possible, the necessity of filling vacancies in office by appointment. Enmeier v. Blaize, 1932, 203 Ind. 475, 481, 181 N.E. 1. Therefore, there is no question that prior to the adoption of Art. 6, § 11, supra, in 1948 it would have been proper to fill the vacancy by election, as was done in this case. The question which we must resolve is whether the 1948 amendment abolished the authority for such procedure. In other words, did the general election in 1956 which was a county-wide election, continue to be an election 'proper to elect' a sheriff as provided by § 49-405, supra, notwithstanding the adoption of Art. 6, § 11 to the Constitution in 1948? Said amendment provides as follows:

'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. * * *'

Clearly under the above provision the years 1950, 1954, 1958, etc., were years 'proper to elect' such sheriff. It is also clear that thereafter the term of 'each such Sheriff' so elected shall be four years, and that such term shall conform to the cycle established by the amendment. Art. 6, § 11, supra.

But do the above provisions in the amendment foreclose the opportunity of the public to fill vacancies in the office by election at other intervening general (county-wide) elections? The above provision does not negate this right which we have previously declared to be the policy of the law. In fact the provision makes no reference whatever to the law governing the filling of vacancies. Rather, the sole purpose of the amendment was merely to provide that the term of the office of sheriff should thereafter be four years and, in order that the voters might be more keenly aware of the election of this important office, it provided for a definite and uniform cycle for all such officers making their election fall on years when neither a president nor a governor was being elected. Speaking of this problem, in Kirkpatrick v. King, 1950, 228 Ind. 236, 243, 91 N.E.2d 785, 788, this court said: '* * * 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.'

Nothing in the amendment, either directly or by implication, conflicts with the previously established practice of permitting the public to fill vacancies in office at the next general election, where the term of office extended beyond such election. The only limitation upon the office imposed by the amendment is that the term of office filled is limited to the time remaining in the unexpired term of the office, according to the cycle now fixed by the Constitution. ¹

Furthermore, such a construction is the only one which can be placed upon Art. 6, § 11, supra, in order to uphold its constitutonality. Article 6, § 2 of the Constitution was amended in 1952 to provide that the sheriff (and other named county officials) '* * * be elected, in each county by the voters thereof, at the time of holding general elections, * * *' and that the other named officers serve for terms of four years.

These constitutional provisions are compatable if we construe them to mean that within the existing framework of the law regular elections for sheriff shall be held in the years 1950, 1954, 1958, etc., and special elections to fill vacancies may be held for the remainder of the unexpired terms of such offices on other years when general elections are held. Thus, and only thus, could sheriffs 'be elected, in each county by the voters thereof, at the time of holding general elections,' as provided by Art. 6, § 2 (1952), supra, and still maintain the cycle of office as established by Art. 6, § 11 (1948), supra.

Article 6, §§ 2 and 11, supra, should be construed as pari materia and compatible, if possible. It is logical and conforms to the policy of the law previously stated, that opportunity should be given for the public to fill vacancies in offices by election whereever such elections can be properly held.

We conclude therefore that appellee's demurrer to appellant's complaint was properly sustained.

Judgment affirmed without costs.

BOBBITT, C. J., concurs.

LANDIS, Judge (separate opinion).

There is no dispute as to facts of this case which involves a quo warranto action to try the title to the sheriff's office of Knox County held by appellee.

Relator's predecessor was elected to the office of sheriff in 1954 for a four year term. On August 24, 1956, such predecessor died and the vacancy in his office was filled by the Board of County Commissioners on August 28, 1956, pursuant to statute, such board appointing relator to serve as sheriff until his successor was elected and qualified. Some time thereafter, the respective Central Committees of each of the Democratic and the Republican political parties met and named candidates for the office of sheriff, to be voted on at the general election November 6, 1956. Appellee was allegedly nominated as the Democratic candidate, and was purportedly elected in such general election. Appellee thereupon procured the issuance to himself of a purported commission by the Governor of Indiana and filed bond and oath.

Relator...