Dissenting Opinion.
Monks, J.(dissenting). — I dissent fom the conclusion reached in the prevailing opinion. It is held by a majority of the court that said act is unconstitutional, because it violates section two, article fifteen of the constitution (section 224, Burns’ R. S. 1894, 224, R. S. 1881), which provides that “When the duration of any office is not provided for by this constitution, it may be declared by law; and if not so declared, such office shall be held during the pleasure of the authority making the appointment. ' But the General Assembly shall not create any office the tenure of which shall be longer than four years.” It is clear that members of the park board are within the provisions of said section of the constitution. It is equally clear, I think, that the purpose of said section was to prohibit the legislature from fixing the tenure of an office *206created by that body at a longer period than four years. The duration or tenure of office, and not the creation of the office by the legislature, is the subject of said section. Fixing the tenure of an office at more than four years is prohibited by said section, but not the creation of the office.
In Lewis v. Lewelling, 53 Kan. 201, 36 Pac. 351, the legislature had passed an act providing for the organization and government of the militia of the state, and creating and fixing the tenure of office of certain military officers at five years. Section two, article fifteen, of the Kansas constitution of 1859, is substantially the same as section two, article fifteen, of the constitution of this State. The court held, not that the creation of the office was unconstitutional, but that fixing the tenure of office at more than four years was unconstitutional. The court said: “The provision in section 4 permitting officers to be commissioned for a term of five years is violative of section 2, article 15, forbidding the legislature to create any office the tenure of which is longer than four years. Military officers are within the provisions of the constitution. Where the statute fixes a term of office at such a length of time that it is unconstitutional, the tenure thereof is not declared, and therefore the office is held only during the pleasure of the appointing power.”
It is evident that section two of the act in controversy, so far as it fixes the tenure of office of the members of said park board at five years, is unconstitutional. It is settled, however, by a long and unbroken line of decisions in this State, that if the unconstitutional portions of a statute can be stricken out, and still leave a complete statute, the unconstitutional portions must be regarded as eliminated, and the remainder of the statute must be enforced. Taggart, Aud., v. Claypool, 145 Ind. 590, 593, 594, 32 L. R. A. *207586; State v. Gerhardt, 145 Ind. 439, 33 L. R. A. 313; Smith v. McClain, 146 Ind. 77, 89; City of Indianapolis v. Bieler, 138 Ind. 30, 38; Ingerman v. Noblesville Township, 90 Ind. 393, 396; State, ex rel., v. Gorby, 122 Ind. 17, 29; State, ex rel., v. Blend, 121 Ind. 514, 521, 522; State v. Newton, 59 Ind. 173; Clark v. Ellis, 2 Blackf. 8.
The legislative purpose in passing the act in controversy was to create a park system for cities of over 100,000 population, and the tenure of office of the members of the board of park commissioners was a mere incident. That system could exist with a park board whose tenure of office was not fixed, as well as if the tenure was fixed at four years or less. Striking down the part of section two fixing the tenure at five years does not change or interfere with the provision of any other section, or change the meaning of any other section of said law, but leaves a complete statute capable of enforcement. .The other sections mean the same, and will have the same-effect after that part, of section two fixing the tenure of office is eliminated as before. The other sections in no way depend upon that part of section two, but are entirely independent of the same. The purpose being to create a park system, the tenure of office was not important, and it can not properly be said-that the legislature would not have passed said act if the tenure of office had not been fixed at five years. Much rather is it to be presumed that the act would have passed if the tenure had been fixed at four years or less, or had not been fixed at all.
If it can be said in this case that the legislature would not have adopted said park act without the eliminated portion of section two, this court should have said in all the other cases cited above that the acts there in controversy would not have been passed *208if they had known that the parts or sections in controversy would be adjudged unconstitutional. Many, if not all the cases cited above, go further to sustain laws, parts of which were declared unconstitutional, than is necessary in this case.
It follows, therefore, that, eliminating the part of section two of said act concerning the tenure of office, the remainder of the act is constitutional. Considering said act with the unconstitutional part eliminated, the legislature has failed to fix the tenure of office of the members of the park board, and that, therefore, the term of office, under section two, article fifteen, of the constitution, is during the pleasure of the mayor. People v. Perry, 79 Cal. 105, 114, 115, 21 Pac. 423.
The judgment should be affirmed.
Jordan, J., concurs.