Dissenting Opinion
Jackson, C. J.I am unable to agree with the conclusions reached in the majority opinion and therefore dissent thereto.
Relator brought this action for a permanent injunction against Christopher D. Moritz, the duly elected, commissioned, qualified and acting Prosecuting Attorney of the 40th Judicial District of Indiana, seeking to enjoin him from the practice of law as a Prosecuting Attorney.
The respondent filed a motion to dismiss the action based on the relator’s failure to comply with Rule 2-35 and Rule 3-26 of this Court. The majority opinion states that this court will take judicial notice of those matters which would be contained in the certified record of the proceedings in the trial court. Rule 2-35 of this Court in pertinent part provides without exception :
“. . . If the relief sought relates to a proceeding in an inferior court certified copies of all pleadings, orders and entries pertaining to the subject matter should be set out in the petition or made exhibits thereto....”
Rule 3-26 also provides, in pertinent part, without exception that:
“ ... If any exhibit shall be a matter of public record one certified copy thereof shall be filed with the original petition or return. ...”
These rules requiring the setting out of certified copies were adopted in order that this Court might *170have essential information relating to the questions which are presented.
The relator is not immune from these well established rules of practice. The case books and citators are replete with instances of actions having been dismissed by this Court because of a failure to comply with these rules. The petition filed by the Bar Association lists seventeen (17) different acts of Mr. Moritz, each and all of which are matters of public record and are without certification as required by Rule 3-26, supra, and Rule 2-35, supra, of this Court. Because of failure to file at least one (1) certified copy of matters of public record the petition is insufficient, State ex rel. Williams v. Sup. Ct. of St. Joseph Co. (1950), 228 Ind. 157, 94 N. E. 2d 591, and should be dismissed. State v. Murray (1955), 234 Ind. 383, 126 N. E. 2d 900. It should be noted that these defects in relator’s petition were pointed out by the respondent some weeks ago, and relator has made no attempt whatsoever to correct them.
The factual situation presented here is that the respondent defeated his Democratic opponent in the primary election in May 1962, and his Republican opponent in the election in November 1962. Each of these opponents was a member of the bar who had been regularly admitted to practice before this Court. It is regrettable that the relator and the persons who ¡"-procured the institution of this action delayed bringing any action against the respondent until after he had defeated his opponents, had been duly elected, qualified, commissioned and had entered upon the official duties of his office. The record discloses that between January 2d and January 8, 1963, the respondent had appeared in seventeen *171criminal, juvenile and paternity matters pending in the Jackson Circuit Court.
The office of Prosecuting Attorney is a Constitutional office. Article 7, §11, of the Constitution of Indiana, reads as follows:
“There shall be elected in each judicial circuit by the voters thereof a prosecuting attorney, who shall hold his office for four years, and whose term of office shall begin on the first day _ of January next succeeding his election. The election of prosecuting attorneys under this section shall be held at the time of holding the general election in the year 1954 and each four years thereafter: Provided, That any such officer whose term is abridged by virtue of this section shall continue to serve until January 1,1959.”
The function of this Court in construing this portion of the Constitution is to give effect to the intent of its framers. I cannot find in the words of this provision, as the majority opinion has, the certain indication that a qualification for the office of Prosecuting Attorney is that he be an attorney-at-law. To ascribe such a meaning to those terms would be to furnish a meaning not found in its terms. The term Prosecuting Attorney in the context of its setting provides only the authority for the establishment of that office. The designation may further indicate the nature and character of the office, but it clearly was not meant to nor does it define the qualifications of that office.
The Supreme Court of Indiana in the instant case in deciding that prosecuting attorneys must be licensed lawyers has added a qualification to the Constitution of Indiana which was not there when written nor has it been there in the past one hundred twelve (112) years. It is a rule well established in Indiana that a *172constitutional practice acquiesced in for a period of years fixes a construction and the Court will not change it. See: In re Todd (1935), 208 Ind. 168, 211, 193 N. E. 865.
In the case In re Petition of Justice of the Peace Assoc. of Ind. (1958), 237 Ind. 436, 440, 147 N. E. 2d 16, it was said by this Court:
“This court has recognized the rule that where the Constitution prescribes qualifications for constitutional officers, the General Assembly cannot prescribe additional qualifications. The General Assembly cannot impose qualifications upon officers beyond those prescribed by the Constitution. ...”
The legislature thus being unable to impose additional qualifications for constitutional offices it follows that this Court is likewise unable to do so.
The majority opinion states that the public interest demands a competent attorney to carry out the duties of a Prosecuting Attorney. There is no allegation in any of the proceedings before this court that show respondent was not qualified to perform the duties of his office other than that he had not been formally admitted to practice law and relator by its own action has prevented respondent from either proving or disproving his ability to properly conduct the affairs of his office. We note that there was no requirement in Indiana that Judges be admitted to practice law until the Constitutional amendment of 1960. If it be deemed essential that the Judge be better qualified than the advocate, and I agree with that conclusion, then it follows if the public desires prosecutors to be attorneys the requirement should be implemented by a proper Constitutional amendment.
This Court has well said:
*173“ . . . We do not hold that because the judge of some court might be of the opinion that a given cause might be better prosecuted by some one other than the regular official, he would, therefore be warranted in appointing such other person as special prosecutor. Neither lack of intellect, learning, nor even moral courage, in prosecuting attorney, judge or other elective officer, constitutes a disqualification to act officially, and a judge would no more be justified in supplanting a prosecuting attorney for such deficiency than would the latter be warranted in demanding a more learned, conscientious and capable judge to hear the causes he must prosecute. The responsibility for lack of capacity in officers must rest on the people who elected them.” State ex rel. v. Ellis (1916), 184 Ind. 307, 321, 112 N. E. 98.
Finally we must consider the consequences of this improvident action. There has already been an appointment by the Judge of the Jackson Circuit Court of two special Prosecuting Attorneys to try a homicide case, such trial resulting in a dismissal of the criminal charge before a verdict and after jeopardy had attached; according to relator’s petition, at the time of filing thereof, there were pending in the Jackson Circuit Court twenty-four (24) criminal cases, and four (4) juvenile cases then set for hearing. We have no way of knowing the present status of these cases, but the pertinent questions of extreme importance to the residents of Jackson County are: what is going to happen to those cases, who is going to try them, what is it going to cost the county, will someone accused of crime escape trial, and will someone who should be convicted of a criminal offense escape punishment? It appears that this action has been instrumental in causing a breakdown of law and order in Jackson County, in creating great expense to the taxpayer, in causing the dismissal of one serious criminal charge *174and uncertainty as to the disposition of not only cases presently on the criminal and juvenile dockets, but as to future matters. The responsibility for this situation rests heavily and squarely on the shoulders of the Judge, the Bar Association of Jackson County, the State Bar Association and this Court.
Respondent’s petition to dismiss this action should be sustained.
Myers, J., concurs with opinion.