Whitcomb v. Young

• Decision Date: 07 March 1972
• Docket Number: No. 1171S342,1171S342
• Citation: 279 N.E.2d 566,258 Ind. 127
• Parties: Governor Edgar D. WHITCOMB et al., Appellants, v. Esther Jean YOUNG, and Arthur Rhea, on behalf of themselves and all other Citizens of the State of Indiana, Appellees.
• Court: Indiana Supreme Court

Page 566

279 N.E.2d 566

258 Ind. 127

Governor Edgar D. WHITCOMB et al., Appellants, v. Esther Jean YOUNG, and Arthur Rhea, on behalf of themselves and all other Citizens of the State of Indiana, Appellees.

No. 1171S342.

Supreme Court of Indiana.

March 7, 1972.

Theodore L. Sendak, Atty. Gen. of Ind., Edward W. Johnson, Deputy Atty. Gen., Paul G. Roland, Indianapolis, for Thurman M. DeMoss, Member, Indiana Election Bd

Buena Chaney, Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, John R. Price, Carmel, Frank E. Spencer, Indianapolis, for appellees.

PER CURIAM:

This is an appeal from a summary judgment of the Marion Circuit Court in favor of Plaintiffs-Appellees upon their 'Complaint for Declaratory Judgment.'

The Complaint is against the Members of the Indiana State Election Board and alleges, in part:

'3. That Defendants will shortly prepare for the election of State Officials in the 1972 election; that the voters of Indiana on November 3, 1970 adopted an Amendment to Article 6, § 1 of the Indiana Constitution fixing the terms of the offices of Secretary of State, Auditor of State, and Treasurer of State at four years; that said Amendment did not set out a date at which it would become effective; that therefore doubt has arisen regarding the date of election of these State Officials; that the effective date of the Amendment to Article 6, § 1, of the Indiana Constitution should be construed and declared in order that the citizens may have the opportunity to prepare for the selection of candidates and the election of these State Officials, if necessary in 1972.'

Also the prayer of said Complaint was:

'Wherefore, Plaintiffs pray that this Honorable Court make a declaration and determination of their rights under the Laws of the State of Indiana and that the judgment or decree herein contain a declaration of the effective date of the 1970 Amendment to Article 6, § 1 of the Constitution of the State of Indiana, and that said four year terms created by said Amendment apply to those persons elected as Secretary of State, Auditor of State, and Treasurer of State in the November, 1972 Election.'

The Amendment to Article 6, § 1 of the Constitution of the State of Indiana, as ratified by the electorate on November 3, 1970 reads simply:

'There shall be elected, by the voters of the State, a Secretary, an Auditor and a Treasurer of State, who shall, severally, hold their offices for four years. They shall perform such duties as may be enjoined by law; and no person shall be eligible to either of said offices, more than eight years in any period of twelve years.' (Our emphasis)

A comparison of the above Amendment with the former Article 6, § 1 of the Constitution of the State of Indiana reveals that the only obvious change is in the emphasized Both the Appellees and the Appellants filed Motions for Summary Judgment on the pleadings, exhibits thereto and 'Stipulation of Facts', and on June 10, 1971 the Marion Circuit Court entered the following:

words, 'four', 'eight' and 'twelve', which previously read 'two', 'four' and 'six'.

'SUMMARY JUDGMENT

Come now the Plaintiffs Esther Jean Young and Arthur Rhea, on behalf of themselves and all other citizens of the State of Indiana, by their attorneys Buena Chaney and John R. Price and file Motion for Summary Judgment, which motion is in the following words and figures to wit: (H.I.) and come now the Defendants Edgar D. Whitcomb, Thurman M. DeMoss, and Karl J. Stipher as members of the Indiana State Election Board by their attorney of record Theodore L. Sendak, the Attorney General of the State of Indiana, and having been served with Plaintiffs' Motion for Summary Judgment file Counter Motion for Summary Judgment, which motion is in the following words and figures; (H.I.), and

'Come now the parties and file their Waiver of 10 day notice under Trial Rule 56(C) in the words and figures as follows, to wit: (H.I.).

'The Court now examines the Plaintiffs' complaint and the exhibits attached thereto and Defendants' answer to said complaint and the motions and countermotions for Summary Judgment. The Court now takes judicial knowledge of the adoption of Senate Joint Resolution No. 7 by the 1967 Indiana General Assembly, the adoption of House Joint Resolution No. 11 by the 1969 Indiana General Assembly and the adoption by the voters of Indiana on November 3, 1970 of the Amendment to Article 6, Section 1 of the Constitution of the State of Indiana; of the Rules of the House of Representatives of the General Assembly of the State of Indiana; of the Rules of the Senate of the General Assembly of the State of Indiana; and the Court further takes notice of the allegations of the Plaintiffs' complaint and the stipulation of the parties, (H.I.); and the Court now considering Plaintiffs' Motion for Summary Judgment, and Defendants' Counter-Motion for Summary Judgment, now finds that the Court has jurisdiction over the subject matter of this cause of action and of all the parties, and that this matter is properly and fully before the Court.

'The Court being duly advised and having considered all of the pleadings, motions, exhibits, facts and evidence herein, now finds that the General Assembly of the State of Indiana duly and lawfully adopted Senate Joint Resolution No. 7 in 1967 and House Joint Resolution No. 11 in 1969; that the voters of the State of Indiana duly and lawfully adopted the Amendment to Article 6, Section 1 on November 3, 1970; that said Amendment did not contain a date upon which it would become effective; that the Attorney General of Indiana in Official Opinion No. 37 issued on December 16, 1970 distinguished the case at bar from Kirkpatrick v. King (19950), 228 Ind. 236, 91 N.E.2d 785 by noting that there were present in the Kirkpatrick Case factors which are not present in this question; that the Attorney General further noted in Opinion No. 37 that Legislative intent would be controlling and that the question of an effective date should be resolved by the Indiana General Assembly and the Courts; that subsequent to this Opinion, the 1971 Session of the Indiana General Assembly took no action thereon; that one of the two original sponsors of Senate Joint Resolution No. 7 has sworn to his belief as its sponsor that the terms of the three officials in question should coincide with the Governor; that the Indiana House of Representatives in 1967 clearly indicated Although the Complaint expressly requested,

its intent as to what would not be the effective date by its defeat of Representative Burton's Motion to set such date at the election of 1970; that by its refusal to adopt said Motion, the Indiana General Assembly indicated its intention that, if adopted in 1970, the Amendment would provide four year terms for those officials elected at the next subsequent election, that is, 1972; AND THEREFORE IT IS ORDERED AND ADJUDGED that those persons now holding office as Secretary of State, Auditor of State, and Treasurer of State were elected by the voters of this State to two year terms and that their offices are subject to election in the next regular election, that is 1972; that the Defendants are ordered to cause the offices of Secretary of State, Auditor of State, and Treasurer of State to appear on the ballot in the General Election of 1972; that those officials elected at said election to said positions sall, pursuant to the Amendment to Article 6, Section 1, adopted by the voters on November 3, 1970, serve four year terms, as shall their successors; and Summary Judgment be and is ordered for the Plaintiffs, and against Defendants.'

'* * * that the judgment or decree herein contain a declaration of the effective date of the 1970 Amendment to Article 6, § 1 of the Constitution of the State of Indiana * * *',

at no place in its 'Summary Judgment' entry did the Marion Circuit Court make any such declaration; instead, it failed to find specifically the 'effective date' of said Amendment but did hold expressly, in the election of the Secretary of State, Auditor of State, and Treasurer of State who were elected in the election of 1970, that said officials:

'* * * were elected by the voters of this State to two year terms and that their offices are subject to election in the next regular election, that is 1972; * * *'

On August 6, 1971, a 'Motion to Correct Errors' was filed alleging that:

'(1) The Court erred in granting Summary Judgment in favor of the Plaintiffs and against the Defendants for the following reasons:

'(a) The decision as to the effective date of the constitutional amendment is contrary to the intent of the legislature; and,

'(b) The decision as to the effective date of the constitutional amendment is contrary to Indiana Law.'

This was supported by a Memorandum of the same date and said 'Motion to Correct Erros' was overruled on September 22, 1971. Praecipe for Record of Proceedings was filed on September 24, 1971. This Court granted the Petition to Advance in order that the real issues may be resolved as expeditiously as possible, in view of the necessity for an early opinion.

First. It is of primary importance to start the resolution of the issues by noting that both parties stipulated that the Amendment to Article 6, § 1 does not include a date at which it will become effective. Thus, an immediate presumption arises that such Amendment was effective at 6:00 P.M. (when the polls closed) on November 3, 1970. This has previously been adjudicated by this Court in the case of Kirkpatrick v. King (1950), 228 Ind. 236, 91 N.E.2d 785. In that case, Kirkpatrick (the Appellant) was elected Sheriff of Hancock County at the same time as the ratification of the Amendment to Article 6, § 11 was adopted, which Amendment read:

Article 6, Section 11.

'Notwithstanding any other provision hereof, the Sheriff of each county shall be elected in the general election held in the year 1950 and each ofur years thereafter.

The term of office of each such Sheriff...