DISSENTING OPINION. Section 1, ch. 59, Acts 1929, § 11604 Burns Supp. 1929, provides that "the term of office of the . . . clerk of the circuit court . . . (and of other county officers) . . . in each county in the State of Indiana, shall begin on the first day of January next following the term of office of the present incumbent."1 *Page 484
The purpose and effect of the act of 1929, supra, was to remedy the situation wherein some of the clerks of the circuit courts did not take office until more than a year after their election, and to provide a method whereby the time of the expiration of the terms of office of county clerks would be made uniform throughout the state. In view of the Constitution's provision that a county clerk "shall . . . continue in office four years," § 2, Art. 6, Constitution, § 159 Burns 1926, "for such term and until his successor shall have been elected and qualified," § 3, Art. 15, Indiana Constitution, § 232 Burns 1926, 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 term of office of appellee, Blaize, ended February 28, 1932. Appellant, Enmeier, was elected November 4, 1930, and under the 1929 act would take office January 1, 1933, instead of February 28, 1932. Thereafter the clerk of the circuit court in Knox County would take office in January immediately following his election in November, instead of waiting for a year and three months to take office.
The act of 1929 merely changed the time when the clerk-elect would take office; it did not change the time of election, did not shorten the term of the clerk elected in 1930, and did not extend the term of the clerk elected *Page 485 in 1928. There was no determination by the trial court as to whether the clerk elected in 1928 would be entitled to serve beyond his second full term of four years.2 (Fixing the time of commencement of the term of 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.)
The readjustment by the Legislature of the terms of office of clerk of the circuit court by changing the beginning of such term, for the purpose of eliminating an undesirable delay of more than a year between the time of election and the time of taking office and of making uniform the time of taking office, seems to me to be reasonable and proper; and the postponement of the beginning of the term (of the clerk elected in 1930) necessary to accomplish that purpose is not so great as to raise the presumption of a design to deprive the office of its elective character in violation of the Constitution. I do not believe the act in question is in conflict with any provision of the Constitution.
My position can be fully understood by reference to the dissenting opinion in the case of Robinson v. Moser (1931),ante 66, 179 N.E. 270, at 277, and the authorities there cited.
1 NOTE 1. This is a re-enactment of § 1, ch. 182, Acts 1901, § 11604 Burns 1926, except that the present act pertains to the "clerk of the Circuit Court" and other officers, while the 1901 act pertains to the "county clerk" and other officers. In Taylor v. State, ex rel. (1907), 168 Ind. 294, 80 N.E. 849, it was held that there is no such officer under the laws of this state as "county clerk" and that the mentioning of such officer in the act of 1901 fixing the time for the beginning of the terms of county officers did not affect the office of "clerk of the Circuit Court."
Section 1, ch. 13, Acts 1903, which fixed the time when the terms of office of certain officers, including the office of clerks of the circuit courts, should begin was held invalid as being in conflict with § 2, Art. 6, Indiana Constitution, § 159 Burns 1926, in Gemmer v. State, ex rel. (1904), 163 Ind. 150, 71 N.E. 478, 66 L.R.A. 82, upon the authority of which case the instant case is reversed. See, also, Russell v. State (1909),171 Ind. 623, 87 N.E. 13.
2 NOTE 2. The appellee, Blaize, brought this action under the Declaratory Judgment Act asking that his "rights, status and legal relations" as clerk of the circuit court of Knox county be determined. The issue was formed by a general denial, and the cause was submitted on an agreed statement of facts. The finding and judgment are entirely silent as to any determination of Blaize's rights, status and legal relation, but there is a finding and judgment that appellant, Enmeier, will begin his term of four years on January 1, 1933. *Page 486