Concurring in part and dissenting in part:
The majority opinion is divided into three numbered parts. For the reasons stated in parts one and two, we concur in the affirmance of the judgment.
In view of the fact that the majority opinion in parts one and two decides that the term of office involved is not an elective term, it was not necessary to decide whether § 2 of Article 15 of the Constitution of Indiana was amended in 1926, and hence was not necessary to include part three therein. It having nevertheless been included, we must dissent from what is said and from the conclusions reached therein. This part involves the meaning and application of the opinion of this court in In reTodd (1935), 208 Ind. 168, 193 N.E. 865. In that case this court construed the provision of the Constitution of Indiana relating to its amendment and held that this provision requires that only a majority of the votes cast for any amendment be in favor to insure its adoption, regardless of the total number of voters going to the polls and voting upon that and other subjects. Prior to the decision in In re Todd, this court had construed the amendment provision of the Constitution of Indiana as requiring a favorable majority of all votes cast at the election at which the amendment was submitted. In reaching this conclusion in the Todd case this court overruled three cases which had established the earlier construction of the constitutional provision with reference to amendment.
The majority opinion purports to recognize the holding in Inre Todd, but would limit its application. It would test the adoption of the amendment involved in In re Todd by one rule and the amendment involved *Page 227 in the case before us by another rule. It seems to us that it cannot be held that the amendment involved in the case before us failed (it having received a majority of the votes cast for and against it) without overruling the In re Todd case, which we are unwilling to do.
The majority opinion attempts to justify this apparent inconsistency by holding that the decision in In re Todd was not retroactive, but established the rule laid down in that case only for the amendment involved in that case and future amendments. It seems to us the Todd case was and had to be retroactive.
The general rule is that a decision overruling a prior decision as to the construction of a statute is retroactive to the time of enactment of the statute. 21 C.J.S., Courts, § 194, p. 326, and cases cited in Note 79; Center School Township v. State, exrel. Board, etc. (1898), 150 Ind. 168, 178, 49 N.E. 961; Byrum v. Henderson (1898), 151 Ind. 102, 107, 51 N.E. 94; AddisonSchool Twp. v. City of Shelbyville (1898), 21 Ind. App. 707, 52 N.E. 105; Fleming v. Fleming (1924), 264 U.S. 29, 31, 32, 68 L.Ed. 547, 549.
The case of Center School Township v. State, ex rel.,supra, presented almost the precise question which we are discussing, except that it involved the construction of a statute instead of the construction of a constitutional provision, but generally speaking, and "in the main, the general principles governing the construction of statutes apply also to the construction of constitutions." 16 C.J.S., Constitutional Law, § 15, p. 51, and cases cited in Note 35.
In the Center School Township case this court, in discussing the question now before us said, on pp. 173 and 174: *Page 228
"Passing, however, to the consideration of what is regarded by the parties as the real question in issue . . . that is to say: Shall we confine the change made in the interpretation of the law by the Taggart case so as to operate prospectively only, and thereby not affect appellant in its claim to the entire surplus dog fund distributed to and received by it prior to March 21, 1895; or shall the new construction of the statute be held to be binding on it as to the money in dispute:
"The decision of the court of last resort, the authorities assert, are not the law, but are only the evidence or exposition of what the court construes the law to be, and in overruling a former decision by a subsequent one the court does not declare the one overruled to be bad law, but that it never was the law, and the court was therefore simply mistaken in regard to the law in its former decision. The first decision, upon the point on which it is overruled, is wholly obliterated and the law as therein construed or declared must be considered as though it never existed, and that the law always has been as expounded by the last decision. Haskett v. Maxey, 134 Ind. 182; Ram's Legal Judgments, 47.
"This rule, however, is subject to the well settled doctrine that courts will not so apply a change made in the construction of the law as it was held to be in the overruled case, as to invade what is considered vested rights, or, in other words, while as a general rule, the law as expounded by the last decision operates both prospectively and retrospectively, still, courts are required to and do confine it in its operation so as not to impair vested rights, such as property rights or those resting on contracts express or implied. Haskett v. Maxey, supra; Stephenson v. Boody, 139 Ind. 60."
Upon the authority above cited the construction placed upon the amendment provision of the Constitution in the In re Todd case reaches back to the adoption of such provision and all amendments, whether submitted before or after the decision in that case, are tested by the same rule and it seems to us that the *Page 229 proposed amendment of Article 15, § 2 of the Indiana Constitution voted upon in 1926 must be considered as adopted until and unless the In re Todd case is overruled.
When property or contract rights have become involved upon the faith of an overruled decision they will, of course, be protected notwithstanding the retroactive effect of the overruling opinion, but that does not change the general rule. The authorities cited in the majority opinion are based upon this protection idea and as we read them do not repudiate the general rule.
The case of In re Todd clearly points out that in overruling the three prior decisions only a question of public interest was involved and that the rule of stare decisis had no application which is tantamount to saying that public interest will not take the place of vested property or contract rights to stop the retroactive effect of judicial decisions which overrule earlier decisions construing statutes or constitutions.
In the case before us no vested property or contract rights are involved and no reason for not applying the general rule appears.
NOTE. — Reported in 78 N.E.2d 535.