Robinson v. Moser

179 N.E. 270, 203 Ind. 66, 1931 Ind. LEXIS 53

• Court: Indiana Supreme Court
• Decided: December 31, 1931
• Docket: No. 26,027.
• Status: Published

Opinions

Treanor, J.

This is an appeal from a judgment of the Brown Circuit Court rendered in an action brought by the appellant against the appellee under the declaratory judgment statute. ■ (§680.1 et seq. Burns Supp. 1929, Acts 1927, ch. 81, p. 208.) The appellant was elected prosecuting attorney of the Eighth Judicial Circuit at the general election held in November, 1928; his term began on January 1, 1930, and his commission will expire on December 31, 1931. The appellee received a majority of votes cast for prosecuting attorney in said circuit at the general election held in November, 1980. The cause was submitted to the lower court upon-an agreed statement of facts containing, in part, the following: “That defendant is claiming to be the duly elected Prosecuting Attorney of the Eighth Judicial Circuit and will attempt to act as such Prosecuting Attorney for said Eighth Judicial Circuit on and after the first day of January, 1932, . . . that plaintiff is claiming and does claim the right to hold office after the 1st day of January, 1932, on account of the provisions of . . . Chapter 27 of the Acts of 1929, p. 49, and that defendant is claiming that he was duly elected at said election held in November, 1930.” Section 11829 Burns Supp. 1929, Acts 1929, ch. 27, p. 49, is as follows: “At the general election in the year 1930, and every second year thereafter, there shall be elected in each judicial circuit in the State of Indiana, a prosecuting attorney, who shall prosecute the pleas of the state in the courts of such circuit: Provided, however, That in all judicial circuits in the State of Indiana wherein the prosecuting attorney elect has a commission which expires in December, 1931, there shall be no election held at the general election in November, 1930, for the purpose of electing prosecuting attorneys of said judicial circuits, but the election of prosecuting attorneys in said judicial circuits shall be held at the general election occurring in the year 1932 and every second year thereafter.” Section 11829.1, Burns Supp. 1929, Acts 1929, ch. 27, p. 49, is as follows: “The term of office of every person hereafter elected prosecuting attorney of any judicial circuit in the State of Indiana shall begin on the 1st day of January next succeeding his election.” The lower court found for the appellee and against the appellant,' that ch. 27 of the acts of 1929 (§§11829, 11829.1 Burns Supp. 1929, supra) is void and unconstitutional; that the election of the defendant as prosecuting attorney for the Eighth Judicial Circuit was legal and that his term of office as such prosecuting attorney should commence on January 1, 1932. Appellant’s motion for a new trial was overruled; appellant excepted and prosecutes this, appeal from such ruling and judgment. The appeal presents the single question of the constitutionality of ch. 27 of the acts of 1929.

The following provisions of the Constitution of Indiana relate to the question presented by this appeal and are set out together for convenience. “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: Provided, That the general assembly may provide by law. for the election of all judges of courts of general and appellate jurisdiction by an election to be held for such officers only, at which time no other officers shall be voted for; and shall also provide for the registration of all persons entitled to vote.” Art. 2, §14, as amended March 14, 1881, §102 Burns 1926. Art. 2, §14, originally read: “All general elections shall be held on the second Tuesday in October.”

“There shall be elected in each judicial circuit by the voters thereof, a prosecuting attorney, who shall hold his office for two years.” Art. 7, §11, §178 Burns 1926.

“The first general election under this constitution shall be held in the year one thousand eight hundred and fifty-two.” Art. 18, §8, §243 Burns 1926. <

“The first election for . . . prosecuting attorney . . . under this constitution shall be held at the general election in the year one thousand eight hundred and fifty-two ; and such of said officers as may be in office when this constitution shall go into effect shall continue in their respective offices until their successors shall have been elected and qualified.” Art. 18, §9, §243 Burns 1926.

The cases of Gemmer v. State, ex rel. (1904), 163 Ind. 150, 71 N. E. 478, 66 L. R. A. 82, and Russell v. State, ex rel. (1909), 171 Ind. 623, 87 N. E. 13, held certain acts of the General Assembly unconstitutional which were substantially the same as the one under consideration, except that they affected elections of county officers named in §2, Art. 6 of the Constitution. But appellant urges that the above-named cases are not controlling in the instant case, for the reason that §2, Art. 6, expressly requires the officers named therein to be elected “at the time of holding general elections,” while §11, Art. 7, which provides for the election of prosecuting attorneys, does not expressly require that they be elected at general elections; the appellant concluding that the General Assembly may provide separate elections for prosecuting attorneys. We think the Constitution requires that all elective offices created by the Constitution be filled normally and regularly at general elections. “The provision that certain state and county officers shall continue in office two years indicates a purpose of the framers of the Constitution that a general election should be held at least every two years, and the legislature has enacted statutes which so provide.” State, ex rel., v. Schortemeier, Secy. of State (1926), 197 Ind. 507, 512, 151 N. E. 407. It seems equally obvious that the framers of the Constitution intended that these officers be elected at the general elections, unless otherwise provided, and §14, Art. 2, §102 Burns 1926, makes this certain. The first provision of §14 is that “all general elections shall be held on the first Tuesday after the first Monday in November”; and this is immediately followed by provisions which expressly confer upon the General Assembly unrestricted power to control the time of holding township elections, and the further power to provide by law for a separate election of “all judges of courts of general and appellate jurisdiction.” As in the case of prosecuting attorneys, there is no provision in the Constitution requiring either township officers or judges of courts of general or appellate jurisdiction to be elected at the time of holding general elections; yet tlje clear import of §14, Art. 2 is that the General Assembly would be powerless to provide for a separate or special election for these officers, were it not for the express authorization to the General Assembly to except the elections of these two classes of officers from general elections. And in Spencer v. Knight (1912), 177 Ind. 564, 573, 98 N. E. 342, this court said: “That article 2, §14 (§102 Burns 1926) 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.” Since the exceptions apply only to elections of township officers and certain judges, it necessarily follows that prosecuting attorneys and other officers provided for in the Constitution must be elected at general elections. (Expressio unius ex-clusio alterius.)

“In construing constitutional provisions, a rule of general acceptance is ‘that which is expressed makes that which is silent to cease.’ ” State v. Patterson (1914), 181 Ind. 660, 105 N. E. 228.

As further indication that the framers of the Constitution understood, and intended, that the officers provided for in the Constitution should be elec ted at general elections, §8, of Art. 18 (the Schedule), sets the first general election for the year 1852, and in §9, §243 Burns 1926, expressly provides that “the first election for governor, lieutenant-governor, judges of the Supreme Court and circuit courts, clerk of the Supreme Court, prosecuting attorney, secretary, auditor, and treasurer of state, and the state superintendent of public instruction under this constitution shall be held at the general election in the year one thousand eight hundred and fifty-two” (our italics) and in this list of officers are several, in addition to the prosecuting attorney, who are not expressly required to be elected “at the time of holding general elections.” It is not without significance for this discussion that the Constitution nowhere expressly provides that the Secretary, Auditor or Treasurer of State, Clerk of the Supreme Court or State Superintendent of Public Instruction shall be elected “at the time of holding general elections”; and if the absence from the Constitution of any express requirement that prosecuting attorneys be elected at general elections justifies the conclusion that the General Assembly has the power to provide separate elections for prosecuting attorneys, or to extend terms of incumbents by postponing elections, the same reasoning would justify the conclusion that the General Assembly has the power to provide separate elections of the officers named above, or to extend their terms of office by the simple expedient of passing a general election.

The Constitution does not fix the interval between general elections, and, after the adoption of the present Constitution, annual general elections were held on the second Tuesday of October, until the General Assembly, in special session in 1869, provided for biennial general elections beginning with the year 1870. Acts 1869 (Spec. Sess.) ch. 30, p. 57. Under Art. 2, §14 (as amended in 1881), §102 Burns 1926, “all general elections shall be held on the first Tuesday after the first Monday in November”; and the -combined effect of the biennial election act of 1869, and Art. 2, §14, is to make it necessary to elect prosecuting attorneys every two years at general elections held on the first Tuesday after the first Monday in November. Since Art. 18, §9, of the Constitution provides that the first election for prosecuting attorney under the new Constitution “shall be held at the general election in the year one thousand eight hundred and fifty-two,” and since Art. 7, §11, §178 Burns 1926, provides that “there shall be elected in each judicial circuit by the voters thereof, a prosecuting attorney, who shall hold his office for two years,” it follows that the General Assembly of 1852 .was merely carrying out the mandate of the Constitution when it enacted that, “at the general election in the year 1852 and every second year thereafter, there shall be elected in each judicial circuit a prosecuting attorney,” etc. (Acts 1852, ch. 8, p. 85.) In view of the foregoing, the statement of appellant that “the legislature originally fixed the year 1852 as the year for holding an election for prosecuting attorney” is without legal significance and should not be used as the basis for conclusions respecting the power of the legislature of 1929 in the matter of fixing the date of or postponing the time of election of prosecuting attorney.

Appellant further insists that “prosecuting attorneys, being judicial officers, they cannot come within the rule laid down in the case of Gemmer v. State, ex rel., supra, as this case was decided as to county officers.” As we understand the Gemmer Case, the significant facts respecting the office in question were that the Constitution created it, fixed the length of the term and further provided that the incumbents of the office should be elected at general elections; and, as already indicated, we think that these same facts exist as respects the office of prosecuting attorney. Furthermore, a comparison of the pertinent provisions of the unconstitutional act of 1903, and the act of 1929 discloses that the General Assembly is attempting to achieve its object by precisely the same method in both acts. The act of 1903 provided that: “In all cases where per sons were elected to any of said offices at the general election in November, 1902, for a term of two years, whose terms of office did not begin until after January 1,1903, no successors to such officers shall be elected until the general election in the year 1906.” (Acts 1903, ch. 13, p. 24.) The act of 1929, §11829 Burns Supp. 1929, contains the following: “In all judicial circuits in the State of Indiana wherein the prosecuting attorney elect has a commission which expires in December, 1931, there shall be no election held at the general election in November, 1930, for the purpose of electing prosecuting attorneys of said judicial circuits, but the election of prosecuting attorneys in said judicial circuits shall be held at the general election occurring in the year 1932 and every second year thereafter.” It is apparent from these excerpts from the two acts that the purposed legal effect of each act “was to continue the persons to whom it applied in office after the expiration of the terms fixed by the Constitution, and beyond the time at which said offices might be filled by the voters of the counties at a general election,” and to postpone “the choosing of the officers named until a general election beyond the one next preceding the expiration of the term.”

Appellant also insists that there is a further distinction between the Gemmer Case and the case at bar in that the Gemmer Case “came up from the lower courts on the question of the treasurer’s office and in it is involved that particular portion of the Constitution which prohibits a county treasurer from holding office more than four years out of six, a like provision as to the number of terms which a prosecutor may hold being absent from the Constitution.” No doubt any provision of an act of the General Assembly which purports to remove the bar of ineligibility created by the Constitution would be invalid; but the theory of the act of 1903, as well as of the act of 1929, is that the incumbent holds over by virtue of Art. 15, §3 of the Constitution and not by express legislative authority. As respects this point, we think the Gemmer Case merely holds that where the Constitution makes a person ineligible for “more than four years in a period of six years,” §3, Art. 15 must be interpreted to mean that such person “shall hold over until his successor is elected at such general election next preceding the expiration of his term of office, and his qualification therefor.” The opinion of the Court cannot be construed to mean that it was holding the entire act of 1903 unconstitutional because it apparently authorized ineligible incumbents to hold over. This is shown by the following statements from the opinion, at p. 163: “The act is objectionable for the further reason that it authorizes incumbents to hold their offices after they have become ineligiblé to do so. . . . The constitutional ineligibility of the incumbents attaches immediately upon the expiration of the second term, and a right to continue in the office for a further period until a successor shall be elected and qualified can not be created by an act of the legislature which deprives the voters of the power to choose such successor at a general election next preceding the expiration of the second term of the incumbent.”

Since the act involved in the instant case is identical, as respects the purposed legal consequences and method employed, with the acts of 1901 and 1903 which affected county offices, and which were declared unconstitutional in the cases of Russell v. State, ex rel., supra, and Gemmer v. State, ex rel., supra, we conclude that these cases control the present case and we accept as sound both the reasoning and the result of those cases. Having construed the provisions of the Constitution to mean that prosecuting attorneys must be elected at general elections, we believe that the reasoning of Dowling, J., in the Gemmer Case, which is expressed in the following quotation, applies with equal force to elections for prosecuting attorney: “When the framers of the Constitution and the people who adopted it said in that instrument that ‘there shall be elected in each county by the voters thereof, at the time of holding general elections,’ the officers named, they could have meant nothing else than that the succession to these offices should be secured, without vacancies or unnecessary extensions of terms by holding over after the expiration of the constitutional terms, by the election by the voters of each county of successors to such officers, who would be ready to take the offices and discharge their duties immediately upon the expiration of the terms of the previous incumbents. The only natural and reasonable time for such selection would be at the general election next preceding the expiration of the term of the incumbent. If the power of the legislature to postpone the choice of the successors to the incumbents of these offices at such election is conceded, it follows that the time for the election of such successors rests wholly in the discretion of the General Assembly. If this is the law, the control of the offices affected is taken from the people and resides exclusively in the legislature.” Gemmer v . State, ex rel., supra, p. 160.

We recognize that voting and holding office are political privileges subject to many regulations and restrictions ; but we accept the following proposition laid down in the Gemmer Case, p. 159: “A declaration in the Constitution of political privileges, rights, or powers to be .exercised by the people of the State places them beyond legislative control or interference as effectually as if the instrument, in terms, declared that the people should not be deprived of them by an act of the General Assembly. The necessary implications arising from general provisions of this character are secondary in importance only to the express letter of the Constitution itself.” Gemmer v. State, ex rel., supra. The Constitution, as we construe it, guarantees to all-persons of each judicial circuit who have the personal qualifications the privilege of presenting themselves as candidates for the office of prosecuting attorney, and likewise guarantees to the voters of each judicial circuit the privilege of voting for candidates for this office at each biennial general election; and these privileges “can not be taken away from them by the legislature, either directly, or indirectly, by an act postponing the choice of the officers named until a general election at which they might be elected has passed.” (Gemmer v. State, ex rel., supra, p. 160.)

We accept as a correct statement of the law that the General Assembly can change the date of the beginning of the terms of constitutional offices and the General Assembly has at different times properly exercised this power. But we call attention to the following statement in Russell v. State, ex rel., supra, at p. 633: “The right to fix the commencement of the term and the right to deny an election are two very different things. The right to fix the commencement of the term must be so exercised as not to infringe upon the right of the voters every four years to furnish the person to fill the office; if it cannot be so exercised, it cannot be exercised at all.”

This court will not declare an act of the General Assembly unconstitutional unless the act in question is clearly in violation of the Constitution for “to doubt merely, is to resolve in favor of the validity of the law.” (Spencer v. Knight, supra, p. 577.) But we must not confuse the problem of determining whether an act violates the Constitution with the preliminary problem of determining the meaning of the Constitution. It is true, as appellant insists, that there are no provisions in the Constitution which expressly require prosecuting attorneys to be elected at general elections, and no provisions which expressly prohibit the General Assembly’s postponing the election of prosecuting attorneys beyond one or more general elections; but necessary implications from express provisions of the Constitution are as much a part of the Constitution as the express provisions themselves; and restrictions imposed upon the General Assembly by necessary implications can no more be ignored by the General Assembly or this Court than restrictions expressly imposed by the Constitution. The fact that the restriction violated by an act of the General Assembly is contained in a necessary implication, as distinguished from a restriction expressly set forth in words, does not in itself create a doubt which would require this Court to decide in favor of the constitutionality of the act.

No doubt there would be some advantage in having uniformity of beginning of terms of prosecuting attorneys and in having all prosecuting attorneys take office on the first of January next following their election. We are not concerned, however, with the need or propriety of any particular legislation, as that is a legislative question, and this Court will not pass upon either the motives or wisdom of the General Assembly. But the-highest of motives and the achievement of a desirable result will not confer validity upon an act of the General Assembly which abrogates a specific right or privilege guaranteed to citizens by the Constitution.

We hold that the General Assembly was without power to dispense with the election of prosecuting attorneys at the general election of 1930 in the judicial circuits affected by ch. 27 of the acts of 1929, and to postpone elections of successors to the present incumbents until the general election of 1932; and consequently that said act was unconstitu tional and void. The trial court did not err in overruling appellant’s motion for a new trial.

Judgment affirmed.

Myers, J., concurs with opinion in which Travis, J., concurs. Martin, J., absent.