*566Dissenting Opinion.
Howard, J.However desirable it may be that the several county treasurers of the State should take office on the 1st day of January succeeding the termination of the terms of their predecessors, and however praiseworthy may have been the motive that actuated the legislature in seeking to enact a law to bring abopt such a result, yet I cannot, even for such reason, agree to what I believe to be a plain violation of the fundamental law of the land. The constitution is no less binding on the courts and legislators than on the people at large. Least of all should this court, set up as it has been for the interpretation and defense of the constitution, lend its high sanction to any disregard of that sacred instrument.
The office of county treasurer was at first a statutory, and not a constitutional office. By an act approved January 8, 1831, the office was created by the legislature, and it was provided that the same should be filled by appointment of the board of county commissioners. R. S., ’1838, p. 158. It was afterwards provided that the treasurer should be elected at the general election then held in August of each year, and that he should hold his office for the term of three years from and after the first Monday in March next succeeding his election, and until his successor should be elected and qualified. R. S., 1813, pp. 98, 122. But by the present constitution, adopted in 1851, the office was made a constitutional one, and it was provided that the treasurer should “be elected, in each county, by the voters thereof, at the time of holding general elections,” and that he should “continue in office two years.” Art. 6, section 2. By item 10 of the schedule to the constitution, it was provided that every person elected by popular vote, and in office at the *567time of the taking effect of the constitution (except as in the constitution itself otherwise provided), should continue in office until the term for which he had been elected should expire, provided that no one should continue in office after the taking effect of the constitution for a period longer than the term of such office as prescribed in the constitution. From these provisions it is clear that, under the present constitution, the term of office of the county treasurer is two years, and that the first term in each county began at the end of the last term under the old constitution. Thus, while the length of the term is fixed, there is no uniform time for its beginning. This is likewise true of the other county offices, and also of the administrative offices of the State, as created by the constitution. For the members of the legislature, and for the executive it is different. There, both th'e beginning and the duration of the term are fixed. In article 4, section 3, it is provided that “Senators shall be elected for the term of four years, and representatives for the term of two •years, from the day next after their general election.” And in article 5, section 9, it is provided that: “The official term of the Governor and Lieutenant Governor shall commence on the second Monday of January, in the year one thousand eight hundred and ’fifty-three; and on the same day every four years thereafter.” To secure such uniform beginning of the Governor’s term, and avoid any vacancy, it was further provided, in item 5 of the schedule, that the last Governor, under the old constitution, should continue to act until his successor should be sworn into office.. Like provisions could, of course, have been made to secure a uniform time for the beginning of the terms of the administrative officers of the State and county; but the framers of the constitution do not seem to have considered this necessary, and such administrative offi*568cers, as we have seen, began their terms nnder the new constitution at the several dates when the terms of their predecessors under the old constitution came to an end.
It is not doubted that, under the provisions of the constitution cited, the term of the appellant would have ended on September.7, 1897, and the relator would have been entitled to enter upon the duties of the office on that day. It is said, however, that the legislature, by the act in force March 8, 1897 (Acts 1897, p. 288, Horner’s R. S. 1897, section 5911a), provided that the term of the county treasurer should begin on the 1st day of January next following the term of the then incumbent, and, consequently, that the term of the relator did not begin until January, 1, 1898. To this, counsel for the relator answer that the statute in question, changing as it does, the time when a county treasurer should take his office under the constitution, and thereby, in effect, extending the length of the term of his predecessor, as fixed by the constitution, must be null and void. So long as the office of county treasurer remained merely statutory, it was almost completely under the control of the legislature, and the term might begin or end at any time, or be lengthened or shortened, at the wiil of the legislature; and this is still true as to statutory offices, provided only the tenure be not made more than four years. Const. Art. 15, section 2; Ham v. State, ex rel,, 7 Blackf. 314; State, ex rel., v. Hyde, 129 Ind. 302, 13 L. R. A. 79.
As soon, however, as the office was made a constitutional one the power of the legislature over it became limited by the provisions of the constitution relating thereto. Those constitutional provisions, as we have seen, fixed the length of the term primarily at two years. This term might, of course, be abruptly broken *569■off by the death, resignation or removal of the incumbent; in which case provision was made for filling the vacancy until the next general election, at which time a new successibn of two-year terms would begin. But the only provision for adding to the two-year term is found in article 15, section 3, which declares that: “Whenever it is provided in this constitution, * * * that any officer, * * * shall hold his office for any 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.” It is certain that this provision did not authorize the legislature to enact a law postponing the time when the relator should take his office.
On September 7, 1897, appellant had served as ■county treasurer for the two-year term provided for in the constitution and, as the relator had then been elected and qualified, there was no constitutional warrant for allowing appellant to hold any longer. His successor had already “been elected and qualified.” The words of the constitution limiting the term of appellant to two years could not be plainer, namely, that he should “hold his office for such term and until his successor shall have been elected and qualified.” It is admitted by the demurrer that his successor, the relator, had been elected and qualified on September 7, 1897, at which time, also, appellant had already served his full term of two years. It must therefore be that the statute relied upon by appellant to deprive the relator of his right to take his office at the time authorized by the constitution is wholly void.
This is not the first time that the question has been before this court. While the first legislature that assembled under the new constitution, composed, as it was, to a large extent, of men who had framed that instrument, provided, by an act approved, June 4, *5701852, and in harmony with the fundamental law, “That the term of county treasurer shall commence at the expiration of the term of the present incumbent” (R. S., 1852, p. 499); yet a subsequent legislature, actuated, no doubt, by the same laudible purpose that influenced the legislature in 1897 in fixing a uniform and convenient date for the beginning of the terms of county treasurers, provided, by an act approved March 3, 1855, that such terms should begin “on the first Monday of the month of November, immediately following the general October elections” (Acts 1855, p. 52). But in Howard v. State, ex rel., 10 Ind. 99, the act so passed was held void, as in conflict with the constitution, which limited the term to two years. In deciding that case, the court said: “The term of the office of treasurer is fixed. And though it be conceded that the legislature may have the power to fix the time at which such term shall commence, still, in order to effect that object, they are not authorized either to shorten or lengthen it. This construction is well supported by another provision. Section 2 of article 15: says: ‘When the duration of any office is not provided for by this constitution, it may be declared by law/ and thereby clearly implies, that when such duration is limited by the organic law, it cannot be changed by legislation.” The conclusion thus reached has since been adhered to. In Grieble v. State, ex rel., 111 Ind. 375, it was said: “In the case of Howard v. State, 10 Ind. 99, it was held that the legislature has no power either to abridge or extend the term of an officer where his term is prescribed by the constitution, and that, hence, the act of 1855 [supra] was in conflict with the second section of article 6 of the constitution, herein above set out [fixing the terms of county officers], and, for that reason, void.
“In the more recent case of Douglass v. State, 31 *571Ind. 429, the doctrine that the legislature can neither abridge nor extend the term of an officer which is fixed by the constitution was reaffirmed.” In Pursel v. State, ex rel., 111 Ind. 519, the court, in citing the foregoing decision, said: “In the case of Griebel v. State, ex rel., supra, p. 369, the doctrine that the term of an officer fixed by the constitution can neither be abridged nor extended by a statutory enactment, was fully considered and reaffirmed. It was also then held that, under the operation of the several constitutional provisions and statutes having a bearing on the subject, there was not, and could not be made to be, any uniformity in the several counties of the State as to the time at which persons elected to county offices of the same class shall be entitled to enter upon their duties, where the duration of the term is prescribed by the constitution.” Speaking of the incumbent in that case, the court said, further: “Having taken possession of the office in pursuance of his election; and having held the office for the full term of two years, the time fixed by the constitution, he was at all events, as against his regularly elected and properly qualified .successor, estopped from denying that his term of office had expired.” And in State v. Friedley, 135 Ind. 119, 21 L. R. A. 634, this court again, citing 7 Lawson Rights and Rem. 5970, said: “If the constitution provides for the duration of an'office, the legislature has no power, even for the purpose of changing the beginning of the term, to alter its duration.” This seems to be the exact question for decision in the case at bar, for in the act under consideration the express purpose was to change the beginning of the county treasurer’s term, and the necessary result of that attempt, if successful, would have been to alter the duration of the term of thé incumbent. The incumbent had served two years, and his successor *572had been elected and qualified; and the constitutional provision being that the term shall be two years, and until the successor has been elected and qualified, the consequence inevitably follows that the incumbent’s time, under the-express provisions of the . constitution, had expired.
It is to be kept in mind that the office of county treasurer was created, and the duration of the term fixed, by the constitution. Much, therefore, of what has been said as to statutory offices and the control of the legislature over them, can have no relation to such a case as the one before us. The constitution limited Mr. Scott’s term of office to two years, ending September 1, if at that time his successor had been elected and had qualified. His successor at that time had been elected and had qualified; hence, under the constitution, he would have taken the office at that time; and the law continuing Mr. Scott in office has the effect of annulling that part of the constitution limiting the term to two years, for the reason that the condition upon which the constitution permits him (Scott) to continue in office, viz. failure of his successor to be elected and to qualify, does not exist.
However convenient or desirable it may be therefore, that county treasurers should begin their terms bn the 1st day of January, yet I am unable to see how that may be done without at least an indirect violation of the constitution, and it is not doubtful that the legislature cannot do indirectly what it cannot do directly. If by making the time when a treasurer eject shall take his office to be four months after the end of his predecessor’s term, the legislature may, in effect, thus lengthen such term four months, no reason appears why an incumbent’s term might not, in the same manner, be indirectly extended to any length beyond the time absolutely fixed by the constitution. That *573would be to nullify the constitutional requirement as to fixed terms for county and state offices. I think it a dangerous construction of the constitution. As said in Pursel v. State, ex rel., supra, I do not think that any uniformity as to beginning of terms of county officers can be attained’without a violation of the constitution.