Dissenting Opinion.
Jordan, J.I am constrained to dissent from the conclusion reached by the majority of the court in this case, and will, briefly as possible, and without elaboration, state my reasons for dissenting. It is conceded, if I understand the position of counsel for the relator, and at least, it cannot be successfully denied, that in the absence of the provision limiting the life of the Appellate Court in the statute creating it, its existence would have been perpetual, subject only *696to a legislative change, and under such circumstances, the tenure of the present judges, in accordance with the provisions of the same statute, which fixed the term of office and the beginning thereof, would have been four years from January 1, 1897. That the incumbent judges, under their election in 1896, would have held for a term of four years from the same date, had the legislature of 1895 repealed the limitation clause of the original act and prolonged the life of the .court to January 1, 1901, as was done by the legislature of 1897, in the light of well settled principles, cannot' be successfully controverted. The inquiry-then, is, if this would have been the effect and operation of a change in the law made by the legislature prior to the election of the present judges, why must a different result follow.because the limitation clause in question was repealed, and the life of the court continued or prolonged, under the act of 1897, which was passed and in force a month or more before the date upon which the existence of the court was to terminate as originally provided? That a legislature; in the absence of constitutional prohibition, may repeal, modify, or amend statutes enacted by itself or predecessor, is elementary. It is settled beyond controversy that when a section of an existing law is amended or changed, it ceases to exist, and the section, as amended, supersedes such original section and becomes incorporated in, and constitutes a part of the original act. Blakemore v. Dolan, 50 Ind. 194. Applying this well settled rule, it becomes evident that when the legislature of 1897 exercised the right to repeal the limitation section of the original act, and to change the time of the court’s expiration from March 1, 1897, to January 1, 1901, all of which legislation, as it will be seen, occurred, and was in full force and effect before the life of the court had termi*697nated, the law stood precisely as though the legislature had, in the first instance, declared that the court’s existence should end on January 1, 1901, and certainly, under such circumstances, in view of the facts in this case, no successors to the present judges could be elected at the ensuing November election.
The fact that the incumbents had been elected and inducted into office prior to the passage and taking effect of the act of 1897, can make no material différence in regard to their status, for, when the change made by the last enactment is construed with the provision of the original act, which fixed the tenure of office at four years, and each provision is given its full force and effect, it must follow that the present judges would hold for a full term of four years provided the life of the court was prolonged for that period by legislative action. But the claim or contention is that the incumbent judges were only •elected by the people for a term of two months, beginning January 1, 1897, and ending on the first day of March following, at which date the existence of the court was to terminate, and at that time, it is contended, their official functions ceased by virtue of the limitation clause, regardless of the act of the legislature in controversy, which repealed the tenure clause of the court and expressly extended the life of the court, and which act, as heretofore said, was in fnll force and effect at and prior to the date originally fixed for the expiration of the life of the court. Counsel for the relatóos seemingly press their argument to the extreme of insisting that vacancies in the offices of appellate judges occurred on and after March 1, 1897, and that the operation of the act in dispute authorized the Governor to fill such vacancies by appointment until the n'ext general election, or, in other words, the contention is that the effect *698of the amendatory law, by which the life of the court was prolonged, was equivalent to the creation of a new office. This argument is certainly strained and can find support neither in reason nor law. Counsel apparently confuse or confound the tenure of the tribunal with the term of its judges. The legislation of 1897 was not aimed at the term of thé office, but was directed at and affected the tenure of the court; and this distinction should be observed. It in no manner changed nor affected the provisions which are contained in the act of 1891 and the amendatory act of 1893, whereby the legislature expressly declares that the term of each of the judges of the Appellate Court shall be four years from the 1st day of January after their election. It is this legislative fiat, as expressed in these previous laws, which operates to make the tenure of the present judges four years from January 1, 1897, in the event the court was so long continued by authority of the legislature, and not the provisions of the act of 1897, which expressly declared that the life of the court should be prolonged for four years from January 1, 1897. Neither can it be maintained that the right of the present judges to continue in office for four years must rest solely upon the provisions contained in section 2 of the act of 1897, upon which relators place so much stress, which declared that the present judges of the court shall continue to hold their offices during a term of four years from January 1, 1897. This section is but a repetition in effect of what 'the legislature had declared in the previous, acts of 1891 and 1893: This section is surplusage and may be entirely eliminated from the act, and the operation and effect of the legislation prolonging the existence of the court, upon the terms of the present incumbents, would be the same.
The argument or claim that the electors of the *699State elected the present judges for a term of two months only and that no act on the part of the legislature could in any manner vary or change this result, is futile and devoid of merit. The people, when they voted at the election of 1896 for appellate judges, are at least presumed to have known the provisions of the law creating the Appellate Court, and also that the term of the judges, under its particular provisions, was four years, and could be for no longer, subject, however, to the tenure of the court as then fixed, or as it might be limited or fixed by the legislature of 1897, before the expiration of the original limit, and subject also to the right and power of the legislature to shorten or abridge the tenure of the judges elected. That the voters were presumed to have known the power with which the legislature was invested, in respect to both the prolongation of the life of the court, and the abridgment of the term of its judges after their election, is surely, in the light of the authorities, a well settled legal proposition. The Appellate Court is purely one of statutory creation, as authorized by the constitution, and subject only to the restrictions of the latter in three respects, namely, that the judges thereof, generally speaking, must be elected, and their term of office cannot exceed fonr years, and temporary vacancies occurring therein must be filled by the Governor until the next election. Aside from these constitutional restrictions, the office may be said to be wholly under the control of the legislature. The court can be made perpetual, or its existence limited, at the discretion of the legislature, or it, at any time, may abolish the office altogether. The tribunal is therefore completely within the power of the legislature, except so far as the constitution forbids that body to interfere. It could shorten the term of four years to one year or under, *700or, if the tenure of the office, as originally fixed, was two years or under, the legislature could have lengthened the term to that of four years, and the judges elected and installed into office prior to such action of the legislature, would "be affected by such change, and their tenure, as the case might be, would undoubtedly be subject to the abridgment or extension of the official term. This power or right of the legislature over officers of its own creation has been repeatedly recognized and affirmed by the decisions of this court. State, ex rel., v. Hyde, 129 Ind. 296, 13 L. R. A. 79, and cases there cited; State, ex rel., v. Menaugh, ante, 260; see, also, 7 Lawson’s Rights and Remedies, section 3797.
Even though it be conceded that the term of the present judges was but two months, as relators assert, when they were elected and became incumbents of the office they would certainly be subject to either an abridgment of that term or to an extension thereof not over four years; and, as the limitation clause in question was changed and extended before the expiration of the two months, it certainly must be evident, in view of the authorities, that the term of the judges would be subject to that extension which, under the facts in this case, is within the constitutional restriction of four years; and upon this theory of the case the contention of the relators, that the election for appellate judges must be held at the ensuing election cannot be sustained.
The legislature, then, being invested with the power to extend the existence of a statutory office beyond its original limit, if this power is exercised during the life of the office, it will result in permitting the incumbent to continue in office for his full term as fixed by law, not exceeding four years, provided the life of the office has been so long continued by the *701legislature. In support of this proposition, in addition to the authorities above cited, see the following: 19 Am. & Eng. Ency. of Law, pp. 562m and 562n; In re Bulger, 45 Cal. 553; In re Jordan, 37 Minn. 174, 33 N. W. 778; Wilcox v. Rodman, 46 Mo. 322; Bruce v. Fox, 1 Dana (Ky.) 447; Christy v. Board, etc., 39 Cal. 3; Paine on Elections, 100-101; State v. McCracken, 51 Ohio St. 123, 36 N. E. 941; State v. Howe, 25 Ohio St. 588; Taft v. Adams, 3 Gray (Mass.) 126; Long v. Mayor, etc., 81 N. Y. 425; State v. Neibling, 6 Ohio St. 40. Paine on Elections, supra, in section 130, states the rule as follows: “When a state constitution declares an office to be elective, it cannot be filled in any other mode than that prescribed in the constitution. But where an office has been filled, in the mode prescribed in the constitution, the term of the incumbent may be extended, provided the entire term, when so extended, does not exceed the time limited by the constitution. The incumbent, during the addition to his term, holds, not as the appointee of-the legislature, but as an elected officer.” The case of Bruce v. Fox, supra, especially controverts the principal contention or argument of counsel for relators. This case arose out of a controversy over the office of commonwehlth attorney, each of the parties claiming the office. Pox, the incumbent, held under the appointment of the governor, and Bruce claimed title through a subsequent appointment by the governor of the state. The statute creating this office was limited in its operation to two years, after which, by its own limitation, it was to be no longer in force but, the constitution of the state of Kentucky provided that offices of the grade of the one in question should be held by the incumbent during good behavior. Before the expiration of the two years, during which period the statute was to be operative, the legislature repealed the *702limitation clause. Bruce, believing that tbe vacancy existed in the office, procured himself to be appointed by the governor to succeed Fox, but this appointment was not confirmed, as required, by the senate. Bruce demanded the right in court to qualify, and succeed Fox, which right the latter denied. The case being taken to the court of appeals, the contention of appellant there was, as it is in the case at bar, that the incumbent could not hold beyond the original term of the office, as'fixed by the law creating it, and that, as soon as the two years’ limitation expired, a vacancy in the office existed, which the governor was authorized to fill, the insistence being urged that the subsequent prolongation of the life of the office, by the legislature, did not operate to continue the then incumbent in office, for the reason that when he was appointed there was no office to be filled for a term longer than two years, and that Fox, the incumbent, was- appointed with reference to the fact that the term could not extend beyond two years, and, consequently it could not be claimed that he was appointed for a longer term than two years. But the court denied this claim or contention of the appellant, Bruce, and decided that Fox was entitled to hold during good behavior, and so long as the office existed. The court in that case held that the prolongation of the life of the office by the legislature was not the creation of a new office, and that no vacancy existed by reason of the continuation of the office. In passing upon the question involved, the court, in the course of its opinion, said: “As the officer may, under the constitution, hold the office during good behavior and the continuance of the office, if the law had been repealed or been permitted to expire, he would have been out of office; but as it was neither repealed, nor permitted to expire, but was *703continued in force by a subsequent statute, enacted prior to the time fixed for its expiration by its own terms, the officer still has the right to hold the office during good behavior and the continuance of the office. And he holds his office under the law which created it, and under which he was commissioned. That law was not re-enacted or revived; but was only continued in force by an act which repealed so much of it as prescribed its own limitation. The continuance of the law, and the consequent duration of the office, depend, not on the law itself, but altogether on legislative will, like all other offices of legislative creation. The effect of the limitation was only that the office should continue for two years and no longer, unless the legislature should, in the meantime, repeal the law, or extend its operation for a longer term. The office might not have continued two years, because the law might, in the meantime, have been repealed. It may continue indefinitely, or so long as the legislature shall deem expedient. It cannot therefore, with any propriety, be denominated or considered an office for two years, or for any other definite period beyond which it cannot extend.” (My italics.)
The limitation of the existence of the Appellate Court, in the act creating it, may be said to be temporary. An act of the legislature may be temporary in some of its parts and permanent in others; and the authorities affirm that if a statute, temporary when enacted, is made permanent by a subsequent act, it is to be deemed permanent ab initio. Sutherland on Statutory Construction, section 136; 23 Am. and Eng. Ency. of Law, 155. It would follow, under these authorities and the facts in this case, that the repeal by the legislature of 1897 of the provisions of the original act, which limited the life of the court, would have alone resulted in making the existence of *704tlie.court permanent, ab initio, had there been no expression of the will of the legislature to the contrary. The claim of the relators that, if the present judges continue in office for a term of four years, they will do so as appointees of the legislature, and not under an election by the people, is without merit. The supreme court of California, in the case of Christy v. Board, etc., supra, in passing upon the powers of the legislature in relation to statutory offices, the official terms of which, under the constitution in that state, as in our own, could not exceed four years, said: “When the constitution declares an office to be elective, it cannot, of course, be filled in any other mode than that provided by the instrument itself. * # * But where an office has been filled in the method prescribed by the constitution, no reason is perceived why the legislature may not extend the term of the incumbent; provided the whole term, when extended, does not exceed the time limited by the constitution —section 7, Article XI, of 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; nor shall the duration of any office, not fixed by this constitution, ever exceed four years.’ An officer duly elected by the people, and holding his office for a term extended by the legislature within the constitutional limitation of time, cannot, in any just sense, be held to hold, not as an elected officer, but as an appointee of the legislature. It cannot be denied that he was elected to the office, and that he would not be the incumbent of it, except for his election. The people have exercised their constitutional right in selecting him for the office, and instead of thwarting the popular will by appointing some one else, the legislature *705has rather ratified it by extending his term. . The duration of the terms of office, except as limited by the constitution, is a matter of purely legislative discretion. It may be diminished or extended at the will of the legislature, within those limits, and this power in no degree trenches on the constitutional right of the people to select the person who is to fill an elective office. The people select the incumbent of the office, but the legislature has the power to define the duration of the term, provided it is not fixed by the constitution, and is within the constitutional limitation of four years.”
The principle asserted in People v. Bull, supra, under our constitution, which prohibits the legislature from fixing the term of a statutory office beyond four years, is not in point, or applicable to the question involved in the case at bar. Under the constitution of New York, as it then stood, the power of the legislature to fix the term of an office of its own creation, appears to have been unfettered, and the holding in People v. Bull, supra, proceeds upon the theory that, if the power was conceded to the legislature to extend the term of an incumbent beyond that fixed prior to his incumbency, such power would be without limit, and the legislature could extend the term of an official so as to make the duration of his term, when once fleeted, permanent, and ever after thereby deprive the people of choosing his successor. It will readily be seen that, under the constitution of this State, such evil results cannot follow an extension by the legislature of the term of an office. This body, under our constitution, is authorized, in the first instance, to fix the term at four years and no longer. If the term of a statutory office is originally fixed for a term under four years, the legislature certainly has the power, *706as our own decisions in effect affirm, to subsequently extend it to the maximum of four years, regardless of the fact that such extension may result in keeping an incumbent in office beyond the original term. Without further consideration of the question, I am of the opinion that there can be no election, under the law, for appellate judges at the ensuing November election, and that the judgment below, denying the right of the relators to have their names placed upon the official ballot, is right and ought to be affirmed.
Monks, J., concurs.