Dissenting Opinion.
Hackney, O. J.I cannot concur in the conclusion of the majority of the court. I am fully convinced that the General Assembly, by the act of 1897, exercised a right expressly denied to it by the- constitution. The denial of authority is in these words: “The General Assembly shall not create any office the tenure of which shall be longer than four years.” Const. Sec. 2, Art. 15. This clause has frequently and *282properly been held to apply to the office, and not to the officer. Baker v. Kirk, 33 Ind. 517; Parmater v. State, ex rel., 102 Ind. 90; State, ex rel., v. Barlow, 103 Ind. 563; Jones v. State, ex rel., 112 Ind. 193; State, ex rel., v. Harrison, 113 Ind. 434; Bell v. State, ex rel., 129 Ind. 1.
In considering it, to avoid confusion, we must look to it as affecting the office, and not as giving or denying any right to the officer. To interpret this clause of the constitution, we are required to ascertain the intent of the people in adopting it,—the thought which they expressed. Indianapolis Brewing Co. v. Claypool, 149 Ind. 193. “If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose, and so as to subserve it.” Prigg v. Pennsylvania, 16 Peters (U. S.) 612; State v. Arrington, 18 Nev. 412, 4 Pac. 735; 6 Am. & Eng. Ency. of Law (2d ed.), p. 921: “No court of justice can be authorized so to construe any clause of the constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them.” Prigg v. Pennsylvania, supra.
What then were the objects of the tenure clause? It is most certainly a limitation upon the power of the General Assembly; it relates to office; it has reference to time, and is definite in the period prescribed. This clause, in similar form, has found its way into-the constitution of several of the states, notably California, Florida, Kansas, Nevada, Oregon, and Texas.Its purpose could not have been' an idle one. The framers were engaged in a more serious undertaking than in mere empty phrase-making. They were certainly providing a bar against the loss of some right to the people from the encroachment of the legislative department of the government. That right, consid*283ered with reference to the period of time named, conld only have meant the right to choose their public servants at least once in four years. There was wisdom in this purpose, for it would prevent the General As1-sembly from building up a favored class of office holders without responsibility to the people, and whose tenure would depend alone upon the perpetuity of the party controlling the assembly. This purpose would cut off that train of evils which would follow from an official class using its offices in the interest of party, and for its own perpetuity. The clause, interpreted in the light of this purpose, is wise and effective, and no other provision supplies its place. Rejecting this purpose as one of the objects of the clause, and the General Assembly is left free to visit upon the people all such evils. Tenure, then, as applied to the office, must mean the period bounded by the appointments or elections to the office. In this meaning it must be assumed, it was designed that the General Assembly should not violate it directly or indirectly. That after creating the office and providing for elections once in four years, the constitutional limit, the act of 1897, postponing an election for two years, violated the constitution, seems too plain for serious difference of opinion.
Gan it be doubted for a moment that an act fixing the period between elections to an office of legislative creation at six years would be unconstitutional? That it would was held in the recent case of Indianapolis Brewing Co. v. Claypool, 149 Ind. 193. If such an act would fail, why, after creating the office and providing the full tenure, may such tenure be enlarged by a second act? Nor is there sound reason in the conclusion, that in computing the time, that which has already been occupied by legislative sanction should not be added to the new time. What dif*284ference in the result can be said to exist where six •years’ time has been provided by one act, and where four years has been provided by one act, and another •increases such time two years? Certainly, no difference, unless the first should be void as to the whole time, and the last only as to the two years added time. Looking to the objects to be attained by the tenure clause, can we say that its purpose is satisfied when the General Assembly provides a tenure of four years, places an occupant in the office, and then takes away the means of electing a new occupant at the close of the period of that tenure? By postponing the exercise of that privilege for two years beyond the four years limit, the time bounded by the periods of electing is enlarged to six years as certainly as if the act had declared originally that elections to the office shall occur but once in six years. It is not creditable to the wisdom of the framers of the constitution to say that they intended to limit the tenure period to four years, as a limit upon the legislative authority, ■ and, at the same time, intended that the General Assembly might, by intentional jugglery or .innocent oversight or misconstruction, so evade the provision as to render it meaningless. Nor can it be said with reason that the framers intended by one provision to create a limitation, and by another to strike it down. If any one of the objects of the clause is defeated by the legislation, our duty is plain, and we must declare the object paramount to the will of the General Assembly. It is true that the act does not expressly provide that the tenure is enlarged; but it enlarges it indirectly as certainly as if it directly provided that the tenure should be enlarged. As to the office of trustee,—indeed as to most offices,—the General Assembly has not said “the tenure shall be” so long, or “the term shall be” so long; but it has usually *285been provided that at a given period an election to the office shall be held, and elections thereto shall be held thereafter once in two or four years. The idea thus adopted is that tenure and periods bounded by elections are one and the same. Keeping in mind the conclusions that the tenure clause relates to the office and to the periods within which the people reserved the right to elect to such offices as the General Assembly might create, it seems, inevitably, that this act has done indirectly that which could not have been done directly. Nor do we regard the fact that the effect is not permanent as controlling. If the enlargement of the tenure for two or more periods or for all periods is a violation of the constitution, it follows that the enlargement of one period is likewise a violation.
Considering the question with reference to those provisions of the constitution conferring upon the General Assembly the power to create the office of trustee, and to provide the times of election (section 3, article 6; section 14, article 2), we find no support for the proposition that the tenure clause may be disregarded. These various constitutional provisions, construed as other laws or instruments, should be made to stand together as constituting a consistent whole, if possible. So construing them, it must be held that, while the General Assembly may create the office and prescribe ánd change the times of electing thereto, this must be done within the limits of the expressed inhibition of the constitution. It must be done so as not to enlarge the tenure limit; so as not to deprive the people of the privilege of electing to an office of this character at least once in four years. Nor will it do to say that, in exercising the right to change the time of electing, it may become necessary or indispensable to extend the tenure. Since terms may be *286made of different duration, within the four-years limit, and since law's may be’ enacted to take effect in the future, there is no objection to a provision for a short tenure to fill the interregnum between the expiration of the discarded term and the taking effect of the new.
Considering the questions'" before us with reference to the hold:over clause of the constitution, I find no authority for the violation of the tenure clause. It is 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 a given term, the 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.” Section 3,. article 15. It is contended with much learning and ability that this provision of the constitution saves the legislation under consideration from the inhibition of the tenure clause. This provision, unlike that of the tenure clause, has reference to the officer and his right to hold the office for the term prescribed by law, and until a successor is elected and qualified. . It has no reference whatever to the periods between which the people- may be denied the right to elect their officers. , One provision has reference to the office, and not to the officer; and the other has reference to the officer, and not to the tenure of the office. It is true, as held in some of the cases, that when one is elected to an office, except that of legislator, he is elected for the prescribed term, and until a successor is elected and qualified, although that may result in a holding of more than four years; but that is neither excuse nor authority for holding that the General Assembly may enlarge the four-years tenure, may deny the people the right of choice *287for more than, four years. The hold-over clause was •designed to save the public service from embarrassment by the failure, of the people to elect, or the failure of their choice, from death or other causes, to qualify and assume the duties of the service. It whs not designed as authority, and is not even a reasonable pretext for an act denying the right of election or of directly or indirectly enlarging the tenure beyond the limit of four years. Upon this construction of the hold-over clause, we have no question before us involving that provision, since we have no question of a vacancy, and no question of rival claimants to the office, and we decide nothing as to any right to hold over. The exact question here is as to whether the _ General Assembly may by an act, directly or indirectly, enlarge the tenure of an office of its own creation beyond the period of four years. If it may do so for two years, it may do so for four years or ten years, and until some succeeding session of that body concludes to accord' to the people the right guaranteed by the tenure clause to elect their officers. That there are dangers which may result from the denial to the people of the opportunity, within reasonable periods, to elect public officers, is plainly seen. That such possible dangers gave rise to the tenure clause of the constitution I have no doubt. And that the construction of that clause which I maintain is a guaranty against such dangers supplies the strongest reasons in support of that construction.
The case of State, ex rel., v. McCracken, 51 Ohio St. 123, 36 N. E. 941, relied upon by the appeílees, involved an act providing for the beginning of an official term after the expiration of the term of the incumbent, the right of the incumbent under a con-, stitutional hold-over provision, to continué; in the *288office until the beginning of the newly fixed term, and the claims of one elected to the office under the new law to take the office before the beginning of the term for which he was elected, namely, upon the expiration of the old term. As we have already shown, none of these questions are before us. The act there in question did not postpone or deny the right of the people to elect, and there was no question made as to the enlargement of the tenure of the office in question beyond constitutional limit. The questions there decided might be pertinent if we were called upon to decide as to the right of the incumbents of the office of trustee to hold over until a successor should be elected and qualified, but they are not pertinent to the questions before us.
The case of Christy v. Board, etc., 39 Cal. 1, also cited find relied upon by the appellees, involved a law postponing for two years the election of certain commissioners, the prescribed tenure of whose office was two years. Notwithstanding the repeal of the la w for an election at the end of the two years term, votes were cast for successors to the incumbents. The court held that it was within the power of the General Assembly to postpone the election, since the power was given to fix the times of election, but that such power must be exercised with reference to the four year tenure clause of the constitution, which is like our own. It will be seen, therefore, that the case did not involve the tenure clause further" than the repeated expressions of the court that such postponement must not exceed the limit' of such clause. By the act there in question the people were not denied the right to elect commissioners within the four years limit, but, observing the limit, the tenure was extended to but four years. The reasoning of *289the court is in harmony with the conclusion here submitted. The case of Jordan v. Baily, 37 Minn. 174, 33 N. W. 778, is another case cited by the appellees as supporting their contention. That case involved a law postponing the time of electing for two years, the term having been four years, and the constitutional tenure limit having been seven years. The act did not reach the constitutional limit by one year, and the people were not deprived of the right to elect within the period reserved by the constitution.
Anything said in these cases or others as to extending the terms of incumbents, as to vacancies, and as to holding over, we do not regard as bearing upon the question before us; and upon the question here for decision the cases are clearly distinguishable from this. I realize the full meaning of the rule that the judge should be satisfied beyond a reasonable doubt that the constitution has been violated before he should hold that the General Assembly has exceeded its authority. However, it is not questioned that I have correctly interpreted the tenure clause, and I see no reasonable ground for contention that this clause is not involved before us. The inquiry must be then, has the act violated it? To my mind there is but one answer. I am not to be deterred from giving this answer because the consequences may possibly be to continue in office the incumbents even beyond the time intended by the act. If the act is invalid, its authors must be held to account for the consequences. The constitution is the paramount law, and by it the acts of every department of the government must - be tested. If I permitted this legislation to stand against the inhibition of the constitution, I should feel that I had violated that sacred law. I conclude, therefore, that the act *290of 1897 violates the tenure clause of the constitution, and is void.
The invalidity of that act, however, does not fully support the appellant’s theory that the election should be held in November, 1898, since that theory implies the validity of the act of 1893 (Acts 1893, p. 192), which postponed the elections for trustee from April, 1894, to November, 1894, in exactly the same manner that the act of 1897 postponed the election from November, 1898, to November, 1900. Counsel for the appellees insist that the objections urged by the appellant to the act of 1897 obtain as against the act of 1893, and with this insistence we all concur. The violations of the constitution are of the same character, and differ only in degree; one being a postponement of two years, and the other of seven months, beyond the constitutional period for the tenure of said office. The theory of the petition affirmed the invalidity of the act of 1897, and the validity of the act of 1893 by seeking to require an election undér it. We are therefore unable to avoid the consequences of this theory. Counsel for the appellant contend that the people having elected under the act of 1893, the appellees are estopped to deny its validity, and assert that this court so held with reference to the apportionment law, in Fesler v. Brayton, 145 Ind. 71. In this position, I respectfully submit, counsel are in error. It is the general rule that the constitutionality of an act may be questioned at any time by any one having an interest, excepting that, where to do so, he would gain an unconscionable advantage from retaining benefits derived from such acts and escape the liabilities therefor. An unconstitutional law is as no law; it is as waste paper. The case of Fesler v. Brayton, supra, was not decided upon the ground of estoppel, but was decided upon an ex*291ception to the general rule, which was that a law could not be declared in violation of the constitution, when to do so would defeat the constitution itself, in abrogating the form of government declared by the constitution.
These conclusions should result in affirming the judgment of the circuit court. Whether the incumbents of the office shall hold until the regular election period in April, 1902; whether they, having been elected under an invalid law, hold de facto, as against appointees, or whether the General Assembly may provide for the exigency which these invalid laws have created, it is not for us to suggest.
Howard, J., concurs in the foregoing.