Appellee, a voter and taxpayer of Marioh county, sued to enjoin appellants, as the hoard of primary election commissioners of that county, from giving notice
Counsel for appellants, acting in accordance with the instructions of their clients, expressly waive the assertion of any irregularities or minor questions growing out of these rulings, and found their appeal only on the unconstitutiona-lity of the act'of 1911, supra, which is entitled, “An act changing' and fixing the time for the election of certain probate, juvenile and superior court judges in the State of Indiana, fixing their terms.of office and repealing all laws in conflict therewith.”
“Section 2. At the general election to be held in November, 1918, and every four years thereafter, judges shall be elected for all the courts above mentioned. Said judges shall hold their office four years and until their successors are elected and qualified.
“Section 3. There shall be no election held at the general election in November, 1912, for the purpose of electing any of the above named officers.
“Section 4. All laws and parts of laws in conflict herewith are hereby repealed.”
1.
4. The provision for the election of such judge by the voters of the two counties does not change his status as one of the judges of the superior court of Marion county. It necessarily follows that if the act sought to be overthrown has lawfully postponed the election of “all
5. It is further urged that even if all the judges of the classes included are named, the act is still special and local, because, by the specific designation of the courts affected, its operation is forever confined to them; and that if other courts of the classes- involved should be created by the General Assembly at its session in 1915, without provision for the election of the judges thereof in 1918, the election of such judges would not come within the act under consideration, but they would have to be elected in 1916, under general provisions relating to elections; and this possibility, it is contended, makes it local and special. "We are not greatly impressed with this view of the question. The act operates generally throughout the State on all the judges of the classes dealt with now existing. And we can see no warrant for declaring it to be now a local and special law and unconstitutional, on the bare possibility that the legislature might add others to the class by a later enactment, without providing for their election at the same time. It would seem in such case that the later statute, rather than the one first enacted, if either, would be subject to- the constitutional objections.
The principal assault of appellants on the validity of the act is made in the claim that it is in conflict with the various provisions of the Constitution of the State, providing for general elections biennially, the election of judicial officers-by the electors, and forbidding the legislature to- create any office the tenure of which shall be longer than four years, in that it denies to the electors the right to elect successors of the officers in question at the general election preceding the expiration of their terms, though a general election will occur at which successors could be elected, thereby extending the terms of the officers in question two years beyond the official tenure of four years fixed by the Constitution.
Counsel for appellee cite the case of State, ex rel., v. Menaugh (1898), 151 Ind. 260, 51 N. E. 117, 43 L. R. A. 408, and rely upon the decision of the court in that ease to sustain the judgment of the lower court in upholding the validity of the act questioned in this. The act before us in this deals with offices of legislative creation as the one considered in that did. It makes no change of any kind in the offices affected or in the powers and duties attached to and imposed on them. The time of election of all of them is merely made uniform. In that case the act of February 25, 1897 (Acts 1897 p. 64, §6983 Burns 1908), by provisions like those of the act under consideration, postponed the election of township trustees from the general election of 1898 to that of 1900. It was assailed by the charge that it extended the terms of the incumbents beyond the general election immediately before their expiration, and added two years to their four years term of office, thus violating provisions of the Constitution. That ease was presented to this court by able counsel, and, as is apparent from the opinions rendered in it, was given thorough consideration. The conclusion of the majority of the court was that the act was not open to the objections urged against it. In the case of
On the question of whether there was an express or implied inhibition in the Constitution of the extension of the time of holding an election, such as is attempted in this case, it was said in the case of State, ex rel., v. Menaugh, supra, at page 268: ‘ ‘ The question in this case with which we have to deal is not whether the power to change or repeal a statute relative to the time of the holding of township elections has beeen conferred upon the legislature, but whether such power has been restricted or withheld by the organic law of the State. Article 2, section 14, of the Constitution provides that ‘All general elections shall be held on the first Tuesday after the first Monday in November; but township elections may be held at such time as may be provided by law, etc.’ Article 6, section 3, provides that ‘Such other county and township officers as may be necessary shall be elected or appointed in such a manner as may be prescribed by law.’ (Our italics.) Article 15, section 2, reads as follows: ‘When the duration of any office is not provided for by this Constitution, it may be declared by law =s * But Q-eJierai Assembly shall not create any office the tenure of which shall be longer than four years.’ The express restriction imposed by this last section is that the General Assembly shall not create any office the prescribed term of which is longer than four years. Section 3 of the same article provides 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 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.’ Tested by any or all of these
8. But it is contended by appellants, the fact that by article 2, §14, of the Constitution the legislature is expressly given the authority to fix the time of holding township elections, while on the other hand it requires judicial elections to be held at the time of holding general elections, unless the body prescribes a separate time for the election of judicial officers only, so differentiates that case from this that it is not controlling. The court, however, in the decision of that ease, while referring to article 2, §14, it will be seen, by an examination of its opinion, expressly based its decision upon the other provisions of the Constitution’ referred to in the quotation made from the opinion of the court, which are equally applicable to all offices of legislative creation, and upon the general proposition that in the absence of express or necessarily implied limitations, which it was asserted were not to be found in the Constitution, the legislature had power to extend the time of electing to an office of its creation. It is true that article 2, §14, implies that all judges of courts of general and appellate jurisdiction are to be elected at general elections, unless provision is made for an election for such officers only, but neither this provision alone, nor in connection with others relative to the
9. The assertion of counsel for appellants, that there is an implied denial of power to postpone an election where it will result in the incumbent of the office holding longer than four years, because of the provision of article 15, §2, of the Constitution, that “the general assembly shall not create any office the tenure of which shall be longer than four years,” is fully considered and answered in State, ex rel., v. Menaugh, supra, at page 271, where it is said: “An examination of the act will readily disclose that it does not profess to create the office of township trustee, nor to extend the term thereof beyond the constitutional limit. It proceeds upon the theory that the office has been previously created, and it merely declares as the legislative will that the time of holding an election for township trustee, etc., shall be changed from the general election on the first Tuesday after the first Monday in November, 1898, to the general election on the first Tuesday after the first Monday in November, 1900, and on such day ‘of every fourth year thereafter’ * * *. These provisions of the law do not appear to us to be impressed with any constitutional infirmities * * *. The act does not in any manner profess nor attempt to extend the tenure of the trustees elected in 1894, nor of those to be elected thereunder in 1900, beyond the constitutional limit of four years. If it provided that the election should be held in 1900 and every fifth or sixth year thereafter, quite a different question would be presented. The statute in question makes no reference to present incumbents. It neither pretends nor attempts to abridge nor enlarge their
On this question the court followed the former declaration of the court in State, ex rel., v. Harrison (1888), 113 Ind. 434, 16 N. E. 384, 3 Am. St. 663, where it was held that while the provision of article 15, §2, imposes an absolute restraint against the creation by the legislature of a term of office of longer duration than four years, and that it prohibits a legislative tenure, or right to hold by legislative authority, for a longer period than four years by virtue of one election or appointment, it by no means follows that the provision of §3 of the same article under which offices of legislative creation may be held after the expiration of the term fixed, and until a successor is elected and qualified, is rendered inoperative. This provision, it was there held, adds an additional contingent and defeasible term to the original fixed term, and the right to hold over comes from it and not from the act regulating the time of holding the election for
10. We think the decision in State, ex rel., v. Menaugh, supra, is controlling in this. Moreover, the general rule is that it is within the province of the legislature to postpone elections and readjust the commencement of the terms of offices such as are of legislative, creation particularly, in which case the incumbents may either hold over, or special elections may be authorized to fill the vacancies thus occasioned until the next general election. Such statutes are not considered in violation of the Constitution, where the object is to regulate the time of holding elections, and not merely to extend the terms of incumbents; but if the legislative intent is clearly to extend the terms of present incumbents in office, the act will fall under the ban of the constitutional provision. 15 Cyc. 343; Scott v. State, ex rel. (1898), 151 Ind. 556, 561, 52 N. E. 163; State, ex rel., v. Burke (1900), 154 Ind. 645, 57 N. E. 509; State, ex rel., v. McGovney (1887), 92 Mo. 428, 3 S. W. 867; State, ex rel., v. Ranson (1880), 73 Mo. 78, 89; State, ex rel., v. Tallman (1901) , 24 Wash. 426, 64 Pac. 759; Wayt v. Glasgow (1906), 106 Va. 110, 55 S. E. 536; note to State, ex rel., v. Plasters (1902) , 3 L. R. A. (N. S.) 887.
9. We are not warranted in saying that the act was passed' by the legislature for the very purpose of adding two years to the terms of those judges whose terms of four years will expire after the general election in 1912 and before the next biennial election. The legislative purpose leading to its enactment may have been to require the election of all superior, probate and juvenile court judges at the same biennial election, and to select that one in which the election of neither President of the United States nor Governor of the State occurred. The propriety of doing this would be clearly for that body to determine, and the reason for it is obvious.
It is urged upon us that the Menaugh ease has been im
11. The singularly able brief of counsel for appellants may well cause doubt of the constitutional power of the legislature to pass laws of the character of those involved in the case at bar and in the Menaugh case. But to doubt merely, is to resolve in favor of the validity of the law. Moreover, the rule declared in that case has been long adhered to, and doubtless induced, in a measure, the act here involved. To the suggestion that the power will result in abuse and evil practices, which will infringe the rights of the people to elect their officers, we must answer, that we have no authority to overthrow the law to prevent a possible misuse of power by the coordinate branch. We cannot presume that the General Assembly will exercise its power other than in good faith. If it does, it is answerable to the people.
Concluding that the act in question is not overthrown by provisions of the Constitution, the judgment of the lower court is affirmed.
Note.—Reported in 98 N. E. 342. See, also* under (1) 36 Cyc. 990; (2, 3 and 5) 36 Cyc. 992; (6) 8 Cyc. 776, 806; (7) 8 Cyc. 775-