*53 DISSENTING OPINION
Jackson, C. J.I cannot agree with the conclusions reached by the majority opinion herein. The appellants here, plaintiffs below, instituted an action in the Marion Circuit Court against the appellees, defendants below, under the provisions of the uniform Declaratory Judgments Act, Acts of 1927, ch. 81, being §3-1101 et seq., Burns’ 1946 Replacement, praying that the Acts of 1929, ch. 18, §1, being §49-2702 Burns’ 1951 Replacement be declared constitutional. The issues were closed by appellees filing their separate and several answers in denial to the complaint; trial was had by the Marion Circuit Court without the intervention of a jury. The finding and judgment of the trial court, omitting the caption, reads as follows:
“The court, having had this case under advisement, finds that on November 4, 1958, Harry C. Gasper was duly elected Clerk of the Marion Circuit Court, 19th Judicial Circuit, that he was duly commissioned, and on January 1, 1959, qualified and assumed the office; that on April 7, 1959, said Harry C. Gasper died, creating a vacancy in such office; that on April 8, 1959, Edwin McClure was appointed by the Governor of Indiana to fill the vacancy, and became the Clerk of the Marion Circuit Court, 19th Judicial Circuit, by qualifying and taking over the duties of the office; that he received a commission from the Governor to serve as such Clerk until such time as his successor is duly elected and qualified; that the. Supreme Court of Indiana affirmed such appointment as lawful.
“The court further finds that a dispute has arisen between the parties to this suit as to whether said Edwin McClure shall serve the full unexpired term of the late Mr. Gasper, which would end on December 31, 1962, or whether an election for said office should be held in the general election this year to elect a Clerk of the Circuit Court in this county, and, if so, whether such newly elected clerk should serve for two or four years.
*54“The court, being duly advised, finds and declares the law to be:
“1. That the office of the clerk of the Marion Circuit Court is a constitutional office.
“2. That Edwin McClure was duly appointed and is a de jure officer.
“3. That the Indiana Constitution and laws require an election for said office to be held at the primary and general election of this year.
“4. That said McClure was appointed to serve until his successor is duly elected this year and qualifies.
“5. That the clerk of the Marion Circuit Court shall receive declarations of candidacy in the forthcoming primary election from qualified voters of political parties, including defendants herein.
“6. That the Marion County Election Board shall cause primary elections to be held for the said office of Clerk of the Marion Circuit Court, 19th Judicial Circuit, and a general election in the fall for such office, of the year 1960.
“7. The court further declares the law to be that the person elected this year in the general election shall serve for a full four-year term, beginning January 1, 1961.
“8. This court cites as controlling the law in this matter the case of Lake County Board of Election Commissioners vs The State ex rel Eyears, 224 Ind. 465.
“WHEREFORE, IT IS .SO ORDERED, CONSIDERED, ADJUDGED AND DECREED, costs vs plaintiffs.”
The finding and judgment is in effect a finding and judgment that the statute in question is unconstitutional.
As stated in the majority opinion the determinative question was the validity of ch. 18, §1, p. 38 of the Acts of 1929, being §49-2702 Burns’ 1951 Replacement.
The Act above cited applies only to the Clerk of the Circuit Court and only particularly distinguishes that *55office or officer from 1 R. S. 1852, ch. 115, §7, p. 512 being §49-409 Burns’ 1951 Replacement which reads as follows:
“Term. — Every person elected to fill any office in which a vacancy has occurred shall hold such office for the unexpired term thereof.”
This court has heretofore uniformly held that the last quoted statute applies with full force and effect to all offices created by the General Assembly, but it has been held to be unconstitutional and void in so far as it may be thought to apply to offices created, and the terms of which are fixed by our State Constitution. See: Lake County Election Bd. v. State ex rel. Eyears (1946), 224 Ind. 465, 468, 68 N. E. 2d 787, and cases there cited.
The opinion of the Attorney General, 1952, pp. 230 and 231 reads in part as follows:
“In the case of Enmeier v. Blaze (1931), 203 Ind. 475, 481, 181 N. E. 1 the Supreme Court of this state had before it the question of the validity of the statute seeking to delay the beginning of the term of certain constitutional offices in order to provide uniformity of succession of office.
“The court in holding that that statute was in violation of the constitution as it applies to clerks of the circuit court said:
‘. . . The spirit of the Constitution is to avoid vacancies in the office of clerk of the circuit court, as well as vacancies in the other offices named in Art. 6, §2; and to avoid, as far as possible, the necessity of filling vacancies in offices by appointment; and also, to avoid holding over by an elected officer, after the expiration of the term of office, except and until his successor shall have been elected and qualified. (Art. 15, §4, Constitution.)
“There have been a number of cases construing Section 7 of Chapter 115 of 1 R. S. 1852, same being Burns’ 49-409, which provides that every person elected to fill any office shall hold it for the *56unexpired term thereof. This statute has been repeatedly held invalid in as far as it applies to appointees to fill vacancies in constitutionally created offices. See: Lake County Election Board v. State ex rel. Eyears (1946), 224 Ind. 465, 468, 68 N. E. 2d 787; Weaver v. State ex rel. Sims (1899), 152 Ind. 479, 53 N. E. 450. See also 1948, O. A. G. 75 and Official Opinion No. 28 of this year.
“Section 1 of Chapter 18 of the Acts of 1929, same being Burns’ 49-2702 provides specifically that persons appointed to fill vacancies in the office of Clerk of the Circuit Court shall hold for the unexpired portion of that term. This is manir fes'tly subject to the same infirmity, the statute on changing the beginning of terms and the general statute on the subject of the duration of terms are. Therefore, on the basis of the authority heretofore cited, it is my opinion that pursuant to constitutional mandate it is proper for an election for clerk to be held in Jay County in the 1952 general election.”
I am in full accord with the reasoning of the Attor-ner General’s opinion as above expressed. The appellant here, Edwin McClure, was appointed to his present office, and there seems to be even less justification to sustain an appointment' than an election, as by so doing, the will of the electorate can be and is thereby thwarted.
This court has heretofore said in the case of Lake County Election Bd. v. State ex rel. Eyears, supra:
“. . . This being an office created by, and the term of which is fixed by the State Constitution, the appointee can be only a pro tempore official. He will fill the vacancy until his successor is elected at the next general election and thereafter duly qualifies. State ex rel. Culbert v. Linkhauer (1895), 142 Ind. 94, 41 N. E. 325; Beale v. The State ex rel. Gray (1874), 49 Ind. 41; Douglass v. The State ex rel. Wright (1869), 31 Ind. 429.”
*57The majority opinion, in my opinion, overrules ruling precedents of our jurisprudence of more than one hundred years’ standing. The judgment of the trial court should be affirmed, in holding that the Acts of 1929, ch. 18, §1, p, 38 being §49-2702 Burns’ 1951 Replacement is unconstitutional; and modified, to hold that an election for the office of Clerk of the Marion Circuit Court should be held in the year 1960 for the unexpired term of the late Harry Gasper, which term ends on the 31st day of December, 1962.
Note. — Reported in 169 N. E. 2d 287.