State ex rel. Wadsworth v. Wright

• Decision Date: 13 January 1937
• Docket Number: 26666.
• Citation: 5 N.E.2d 504,211 Ind. 41
• Parties: STATE ex rel. WADSWORTH v. WRIGHT.
• Court: Indiana Supreme Court

5 N.E.2d 504

211 Ind. 41

STATE ex rel. WADSWORTH v. WRIGHT.

No. 26666.

Supreme Court of Indiana

January 13, 1937

Appeal from Ripley Circuit Court; Curtis Marshall Special judge.

Chester Davis, of Bedford, R. E. Noelker and Andrew W. Kops, both of Batesville, for appellant.

Virgil McCarty and Michael L. Bohland, both of Brookville, Bielby & Bielby, of Lawrenceburg, Turner & Woodfill, of Greensburg, Creigmile & Creigmile, Vernon M. Vayhinger and Huntington & Schroeder, all of Osgood, Chas. S. Royce and Jackson & Jackson, all of Versailles, Wm. M. Turner of Lawrenceburg, Curtis Thompson, of Versailles, Robert A Peak, of Milan, and Albert B. Wycoff, of Batesville, for the State.

FANSLER Judge.

Appellant

brought this action in quo warranto to determine the title to the office of prosecuting attorney. There was judgment for appellee.

The errors assigned question the constitutionality of chapter 137 of the Acts of 1935 (Acts 1935, p. 484), defining the Sixth and creating the Eightieth judicial circuits of the state of Indiana.

Prior to the enactment of the law, the counties of Scott, Jennings and Ripley constituted the Sixth judicial circuit. The act in question defines the Sixth judicial circuit as being made up of Scott and Jennings counties, and Ripley county is designated as the Eightieth judicial circuit. It is contended that 'the title of the act creating the 80th Judicial Circuit does not embrace the provisions of the body of the act and therefore the act is null and void and unconstitutional [Const. art. 4, § 19] .' The title of the act begins, 'An Act defining the sixth and creating the eightieth judicial circuit, of the State of Indiana.' If the title had gone no further, it was broad enough to cover everything incidental to the creation of the Eightieth circuit. Appellant complains that the title does not mention return of process, the time of taking effect of the act, and other incidental matters. It is not necessary. Such matters are incidental to and properly connected with the creation of the new Eightieth circuit.

It is contended that the act is unconstitutional because in creating the new Eightieth circuit it provides for the appointment of a judge and prosecuting attorney by the Governor to serve until the next regular election; that judges must be elected by the people (Const. art. 7, § 9); that, although the Governor may appoint to fill vacancies, the creation of a new circuit does not create a vacancy. This question must be considered as settled contrary to appellant's contention, since the well-considered case of Stocking v. State (1855) 7 Ind. 326, which has been cited with approval by this court many times and treated as the settled law.

The relator was elected prosecuting attorney of the old sixth circuit. He resides in Jennings county, and under the terms of the new act, he continues as prosecuting attorney of the Sixth circuit, but the Ripley circuit court, which constitutes the new Eightieth circuit, is taken out of his circuit. The salary of the prosecuting attorney is fixed by counties, so that, by the change, his salary is reduced. It is contended that this is an 'abridgment' of his office, which is a constitutional one; that the Legislature may not 'abridge' a constitutional office, or the rights of one who is elected thereto; nor can it deprive such an officer of the emoluments of his office, or any part of them; that he has a vested right in the salary, which is protected by the Federal Constitution.

That the Federal Constitution does not protect one in his rights to the emoluments of a public office is too well settled to require discussion. Ordinarily offices continue at the will of the Legislature. If the Legislature has not power to 'abridge' the office or decrease the salary for the term for which the officer is elected, it is only because such action is prohibited by the state Constitution. The act in question 'abridges' the jurisdiction of the judge and of the prosecuting attorney of the old Sixth judicial circuit by taking away one of the counties that made up the circuit. It has been repeatedly held that this can be done. Section 9 of article 7 of the Constitution of Indiana expressly provides for it.

It is well settled that judges and prosecuting attorneys may serve the constitutional term for which they are elected, and that the Legislature cannot, by abolishing or changing a circuit remove or legislate such officers from office prior to the expiration of their terms. But in this case there was no attempt to remove the judge or prosecuting attorney or to curtail their terms. It is expressly provided that the judge and prosecuting attorney, who had been elected and qualified for the Sixth judicial circuit, should continue as the judge and prosecuting attorney of that circuit as redefined. The question presented therefore is whether, by redistricting the circuits and removing a county from the circuit, thus curtailing the salary of the prosecuting attorney to the extent of the amount paid by the county which is removed, ...