DISSENTING OPINION. I believe it has not been definitely demonstrated that the enactment of ch. 27, Acts 1929, § 11829 et seq. Burns Supp. 1929, violated any provision of the Indiana Constitution.
The act provides that:
"at the general election in . . . 1930, and every second year thereafter, there shall be elected in each judicial circuit . . . a prosecuting attorney . . . provided . . . that in all . . . circuits . . . wherein the prosecuting attorney elect has a commission which expires in December 1931, there shall be no election held . . . in November 1930, for . . . prosecuting attorneys . . . but shall be held at the general election . . . in . . . 1932 and every second year thereafter,"
and that:
"the term of office of every person hereafter elected prosecuting attorney of any judicial circuit . . . shall begin on the first day of January next succeeding his election."
Prior to the enactment of this law, the prosecuting attorney of the Eighth Judicial Circuit, as well as the *Page 87 prosecuting attorneys of 12 other circuits, were elected in November, 1928, but did not take office until January, 1930, and their commissions expired December 31, 1931. In the remaining 63 judicial circuits of the state the prosecuting attorneys elected in November, 1928, took office in January, 1929, their commissions expired in December, 1930, and their successors, elected in November, 1930, took office in January, 1931, and hold commissions which will expire December 31, 1932. The purpose and the effect of the act of 1929 was to remedy the situation wherein some of the prosecuting attorneys did not take office until more than a year after their election and to provide a method whereby the time of the election of prosecuting attorneys in the several circuits, the time of their taking office and the expiration of their several terms of office, would be made uniform throughout the state. In view of the Constitution's provision that a prosecuting attorney "shall hold his office for two years," and the fact that general elections are held biennially in the even-numbered years, it is apparent that the act of 1929 adopted the only solution to the problem.
The Constitution of 18521 (effective November, 1851) provides by § 11, Art. 7 (§ 178 Burns 1926), that: "There shall be elected in each judicial circuit by the voters thereof, a prosecuting attorney, who shall hold his office for two years," and by § 3, Art. 15 (§ 232 Burns 1926), that: "Whenever it is provided in this constitution or in any law which may be hereafter passed that any officer, other than a member of the general assembly, shall hold his office for any given term, the *Page 88 same shall be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified."
Sections 10 and 11 of the "Schedule" of the Constitution (denominated §§ 10 and 11 of Article 18 in the present revision of the Statutes, § 243 Burns 1926), provides that:
"The first election for . . . prosecuting attorney . . . under this constitution shall be held at the general election in . . . one thousand eight hundred and fifty-two; and such of said officers as may be in office when this constitution shall go into effect shall continue in their respective offices until their successors shall have been elected and qualified.
"Every person elected by popular vote, and now in any office which is continued by this constitution; and every person who shall be so elected to any such office before the taking effect of this constitution . . . shall continue in office until the term for which such person has been, or may be, elected . . . in office after the taking effect of this constitution for a longer period than the term of such office in this constitution prescribed."
The time for holding general elections is provided by the Constitution. Section 14, Art. 2, of the Constitution of 1852, providing that "All general elections shall be held on the second Tuesday in October," was, on March 14, 1881, amended to read as follows:
"All general elections shall be held on the first Tuesday after the first Monday in November; but township elections may be held at such time as may be provided by law. Provided, That the general assembly may provide by law for the election of all Judges of courts of general and appellate jurisdiction by an election to be held for such officers only, at which time no other officers shall be voted for; and shall also provide for the registration of all persons entitled to vote."
While the Constitution provided when the first election thereunder for the office of prosecuting attorney should take place, it did not provide (nor did the amendment *Page 89 of 1881 provide) any specified or uniform time when newly elected prosecuting attorneys should take office. Such time depended upon previous legislative action,2 by which the beginning and expiration of the term of office in the several circuits were governed. There is no reason why the Legislature does not have the right to change the beginning of the term of a subsequent prosecuting attorney for the purpose of eliminating an undesirable delay between the time of his election and the time when he takes office, and of making uniform the time of election and the time of taking office of all prosecuting attorneys, provided the postponement necessary to accomplish that purpose is not so great as to raise a presumption of a design to deprive the office of its elective character.
The Legislature can neither abridge nor lengthen the term of a Constitutional office, but there is in the Constitution no denial of power in the Legislature to postpone the date of elections and readjust the terms of offices, where the object is to regulate the time of holding elections and not merely to extend the term of incumbents. Scott v. State, ex rel. (1898), 151 Ind. 556, 52 N.E. 163; State, ex rel., v. Menaugh (1898), 151 Ind. 260, 51 N.E. 117, 43 L.R.A. 408; State, ex rel., v. Burke (1900),154 Ind. 645, 57 N.E. 509; Spencer v. Knight (1912),177 Ind. 564, 98 N.E. 342; Wilson v. Clark (1901), 63 Kan. 505, 65 P. 705; State, ex rel., v. Andrews (1902), 64 Kan. 474, 67 P. 870. A legislative act which postpones the date of an election and provides that the incumbent shall hold office during the interim is valid unless the postponement is so great as to raise the presumption of a design substantially to deprive the time of its elective character. 12 C.J. 751.
Fixing the time of commencement of the term of *Page 90 office at a date subsequent to the expiration of an incumbent's term causes a vacancy at the end of such incumbent's term, if he is ineligible, but if he is eligible, he will hold over under § 3, Art. 15, Constitution, § 232 Burns 1926. State, ex rel., v.Menaugh, supra; Scott v. State, ex rel., supra; Weaver v.State, ex rel. (1899), 152 Ind. 479, 53 N.E. 450; State, exrel., v. Wells (1895), 144 Ind. 231, 235, 41 N.E. 461, 43 N.E. 133; Spencer v. Knight, supra; 22 R.C.L. 549, § 249.
The readjustment of the terms of office of a certain portion of the prosecuting attorneys of the state by the act of 1929 so as to eliminate a year's delay in their taking office, and making uniform the time of election and taking office is a reasonable one and the postponement necessary to accomplish that purpose is not so great as to raise a presumption of a design to deprive the office of its elective character. Spencer v. Knight, supra;Jordan v. Bailey (1887), 37 Minn. 174, 33 N.W. 778; State, exrel., v. McGoveny (1887), 92 Mo. 428, 3 S.W. 867; State, exrel., v. Ranson (1880), 73 Mo. 78, 89; Wilson v. Clark,supra; State, ex rel., v. Andrews, supra.
If a law were passed providing for the holding over, or for the appointment of a prosecuting attorney, for a period of two years or more, objection might well be made thereto. But where, as here, the term of a prosecuting attorney expires midway between two biennial elections, and the Legislature selects the simple and effective method it did to remedy that situation, it cannot be said that the people have been denied any right to vote guaranteed them by the Constitution. Such a change is admittedly a much needed one, and I see no reason why it is not capable of lawful accomplishment by legislative action without the necessity of constitutional amendment.
The decision herein seems to be based (not upon the *Page 91 ground relied upon by appellee in his brief that the act of 1929 violates § 11, Art. 7 and § 3, Art. 15 of the Constitution, but) upon the ground that the election of a prosecuting attorney in the Eighth Judicial Circuit could not be postponed from 1930 until 1932 by the act of 1929, and that such act is invalid, for the reason that prosecuting attorneys must be elected at every general election, which election must be held on the first Tuesday after the first Monday in November, biennially in the even-numbered years and that such act deprives the people of the right to vote for a prosecuting attorney at a biennial general election.
As a general proposition the people do have the right to vote for prosecuting attorney at every general election, but it cannot be said that such a right is guaranteed by the Constitution. The fact that the people usually do have this right arises incidentally from the provisions of the Constitution, but as shown by the authorities hereinbefore cited the right is clearly subject to the qualification made by such a law as ch. 27, Acts 1929.
Section 1, ch. 47, Acts 1881 (Spec. Sess.) p. 482, § 7441 Burns 1926 (enacted following the amendment of § 14, Art. 2 in 1881), provides that:
"A general election shall be held on the first Tuesday after the first Monday in November in the year one thousand eight hundred and eighty-two, and biennially thereafter on the same day, at which election, all existing vacancies in office, and all offices the term of which will expire before the next general election thereafter, shall be filled, unless otherwise provided by law." (Our italics.)
The general provisions of this statute cannot serve to avoid the specific provisions of the act of 1929, by which the Legislature has "otherwise provided by law."
Authority for the decision made in the case at bar is found in the cases of Gemmer v. State, ex rel. (1904), *Page 92 163 Ind. 150, 71 N.E. 478, 66 L.R.A. 82, and Russell v. State,ex rel. (1909), 171 Ind. 623, 87 N.E. 13. In both of those cases, as here, the court seems to assume that the provision of the act of 1881, supra, that at general elections vacancies in "all offices the terms of which will expire before the next general election shall be filled," is a requirement of the Constitution and not merely of the statute, which includes the exception "unless otherwise provided by law."
The court here fails to recognize and give effect to the well-established rule that fixing the time for the commencement of a term of office at a date subsequent to the expiration of an incumbent's term causes a vacancy if the incumbent is ineligible or will permit him to hold over under § 3, Art. 15, if eligible, when it holds that the fixing of such date for the commencement of the term of office unlawfully attempted to lengthen the term of the incumbent's office for a period of one year.
The reasoning contained in the Gemmer and Russell Cases is not in harmony with that of the other Indiana cases, both earlier and later, and to the extent that the Gemmer and RussellCases would conflict with the reversal of the judgment herein, I believe they should be overruled.
I am of the opinion that ch. 27, Acts 1929, §§ 11829, 11829.1 Burns Supp. 1929 is valid and not in violation of the Constitution, that the purported election of appellee Moser as prosecuting attorney of the Eighth Judicial Circuit, contrary to the express provisions of this law, was invalid and void, that the appellant Robinson, the duly elected prosecuting attorney whose commission expired December 31, 1931, is entitled under said act to continue in office until his successor, to be elected at the general election in 1932, is elected and has qualified and is eligible to succeed to the office on January 1, 1933; and that the judgment should be reversed.
1 Note 1. The Constitution of 1816 contained nothing with reference to prosecuting attorneys. The following acts passed prior to 1852 show the history of the office, the manner of selection, for what terms, etc.: Acts 1824 p. 427; Acts 1826 p. 58; Acts 1827 p. 22; R.S. 1831 p. 88; R.S. 1838 p. 87; R.S. 1843 p. 1020; Acts 1843 p. 22; Acts 1847 p. 53; Acts 1851 p. 141.
2 Note 2. See, in addition to statutes cited in Note 1, the following: Acts 1852 p. 85; R.S. 1852 p. 260; Acts 1869 p. 57. *Page 93