State v. Menaugh
| Decision Date | 01 July 1898 |
| Docket Number | 18,609 |
| Citation | 51 N.E. 117,151 Ind. 260 |
| Parties | The State, ex rel. Harrison, v. Menaugh et al |
| Court | Indiana Supreme Court |
Rehearing Denied Oct. 14, 1898, Reported at: 151 Ind. 260 at 278 and 291.
From the Whitley Circuit Court.
Affirmed.
Thomas R. Marshall, Wm. F. McNagny and Philemon H. Clugston, for appellant.
Hogate & Clark, W. W. Spencer, C. M. McCabe, B. E. Gates and A A. Adams, for appellees.
This action was instituted by the relator to obtain a writ of mandate against appellees to compel them to take the necessary steps in order that an election might be held in Columbia township, Whitley county, Indiana, on the first Tuesday after the first Monday in November, 1898, for the purpose of electing a trustee for that township. Each of the appellees filed a separate demurrer to the complaint, which the court sustained, and the relator refusing to amend, judgment was rendered against him for cost. Sustaining these several demurrers constitutes the errors assigned in this court.
The only questions raised and discussed by the parties to this appeal relate to the constitutional validity of an act of the legislature, approved February 25, 1897 (Acts 1897, p. 64). The title of this statute, and the first section thereof, are as follows: Section 2 provides that the time of holding the election of justices of the peace, constables, and other officers of the township shall remain as now fixed by law. Section 3 declares that, "the election of said township officers shall be conducted under the provisions of the law governing said general elections." The fourth section relates to the ballots and ballot boxes to be used at the election of township officers. The fifth section repeals all laws in conflict with the act.
It is insisted by counsel for appellant that as this act is invalid by reason of its being repugnant to the constitution, therefore the law of 1893 (Acts 1893, p. 192, section 6290, Burns' R. S. 1894) whereby the time of holding the election for township officers was changed from April to the first Tuesday after the first Monday in November, 1894, and every fourth year thereafter, is still in force, and consequently the election of township trustees must be held at the November election in 1898. It will be observed that the act of 1897, supra, applies only to township trustees and assessors, and changes the time of the election of these officials from the general election in November, 1898, as provided for by the act of 1893, to the general election in November, 1900, and every fourth year thereafter; and further provides that these officers shall qualify and enter upon the discharge of the duties of their respective offices at the expiration of ten days after such election. The time of electing justices of the peace, constables, and such other township officers as may be provided for by law, is left unchanged, and remains as fixed by the act of 1893, supra. If the act of 1897 is a valid exercise of legislative power, no election of township trustees and assessors can be held by reason thereof, until the general election in November, 1900, unless the legislature at its next session provides for one to be held at an earlier time.
Appellant's learned counsel challenge the constitutional validity of the law in controversy, upon the ground that it extends the term of trustees elected in 1894 beyond the period of four years, the time allotted by the constitution for the tenure of an office created by the legislature. Or, in other words, they virtually contend that, as section 2, article 15, of the constitution inhibits the General Assembly from creating any office, the tenure of which shall be longer than four years, that by this inhibition the legislature has no power to extend the term of a township trustee beyond the period of four years, which it is contended the act of 1897, as a necessary result, does, in respect to trustees elected at the November election in 1894, and therefore it is in violation of this provision of the constitution. Counsel assert that, as under the provisions of the act in question, the election of trustees being postponed until November, 1900, the result will be that the present incumbents will hold for two years beyond the constitutional limit. They say: "Of course, this act does not expressly appoint the present incumbents, but it does produce that result, and we contend that in the consideration of the act, we must look to the results, and, where the results would be absolutely repugnant to the constitution, a law cannot be upheld."
It is conceded that under article 2, section 14, of the constitution, the right to provide for or fix the time for holding township elections is reserved for the legislature, but the contention seems to be that this provision of the constitution contemplates that elections for township officers must at least be held once in every period of four years, and therefore the legislature has no power to enact a law like the one in dispute, which operates in changing or postponing the time for electing trustees beyond the quadrennial period.
Before reviewing the cardinal question involved, we may say that if the objections urged by appellant against the validity of the act of 1897 can be sustained, then the effect of such holding would certainly result in striking down the act of 1893, under which the relator seeks to compel appellees to hold an election in November, 1898. Unquestionably it can be said of the latter act that it is impressed with the same infirmities which are alleged to exist against the statute of 1897. It expressly changed or postponed the time of electing trustees and other township officers from the first Monday in April, 1894, as provided by the amendatory act of 1889 (Acts 1889, p. 425), to the time of holding the general election in November, 1894, and every fourth year thereafter, and thereby, if the argument of counsel for appellant is sound, extended the holding of the trustees elected in April, 1890, three months in excess of four years. It will be seen that trustees elected at the April election, 1890, by reason of the provision of the act approved March 9, 1889 (Acts 1889, p. 344), entered upon the discharge of their duties on the first Monday in August of that year, and the time of electing their successors being fixed by the act of 1893 on the first Tuesday after the first Monday in November, in 1894. Thus, if the reasoning of appellant can be accepted as correct, it operated to extend their terms three months, at least, over or beyond the constitutional limit of four years; and, in accordance with the insistence of counsel, for this reason the act of 1893 must be condemned for violating the constitution in like manner as does the act of 1897, and, without further legislation, the law of 1889 would control, and the time for holding an election under the latter would not again occur until April, 1902. But this would not be the only result which would follow a decision of this court adverse to the validity of the act of 1897. The act of 1893 being unconstitutional and void under appellant's contention, consequently there was no legal authority for electing township trustees and assessors at the November election in 1894, and therefore the present incumbents would not be legally entitled to hold their offices, and could be ousted therefrom, and those whom they succeeded might be, if they desired, reinstated into the offices which they, as it might be said, without authority of law, surrendered; and no doubt numerous suits would be instituted on the part of trustees and assessors elected in 1890 against present incumbents, to obtain possession of the respective offices, together with the past emoluments thereof.
Passing these features of the case, however, as of no present consequence, in view of our ultimate conclusion, they being mentioned merely to show the deplorable results which would follow an adverse decision on the validity of the act in question, in the event our views on the law constrained us so to decide, we proceed to consider and determine the real question in controversy between the parties.
It becomes necessary for us to refer to and examine certain provisions of the constitution which the parties to this appeal insist have a material bearing upon the decision of the questions presented. It must be remembered that under article 4, section 1, of the state constitution all legislative authority is lodged in the General Assembly, and as regards this authority, that body is considered supreme and sovereign, subject to no restrictions except those which the state constitution expressly or impliedly imposes, and the restraints of the federal constitution and the laws and treaties passed and made pursuant thereto. Aside...
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