State ex rel. Taylor v. Mount

51 N.E. 417, 151 Ind. 679, 1898 Ind. LEXIS 149

• Court: Indiana Supreme Court
• Decided: October 14, 1898
• Docket: No. 18,760
• Status: Published

Opinions

Howard, J.

This was an action brought by the relators, in the name of the State, for a writ of mandamus, to require the appellees, who constitute the state board of election commissioners, to place upon the official ballot to be voted at the general election held in November, 1898, the names of the relators as candidates for judges of the Appellate Court.

In the complaint and alternative writ issued thereunder it is. shown that the relators are each eligible to the office of appellate judge, that each was duly nominated thereto and such nomination properly certified to the said board of election commissioners, but that said board refused to place the names of the relators upon the official ballot, claiming that there were no such officers to be elected at said election. To the complaint and alternative writ the appellees demurred for want of sufficient facts, and this demurrer was sustained by the court. Judgment was thereupon rendered denying the peremptory writ, and for costs against the relators.

• As preliminary to a consideration of the case upon its merits, the appellees contend that the complaint is defective, for the reason that it discloses a joint action by the relators, whereas they have no joint or common interest in the result. There is no doubt that each of the relators is separately interested in the outcome of the action, inasmuch as each seeks election for himself to the office of judge of the Appellate Court. We think, however, that they have also a common interest in the decision of the case. They are all complaining of the one act of the board of election commissioners, .who have refused to place their names on the official ballot, claiming that there is no right to fill the office of appellate judge at the ensuing general election. That is the one, actual, indivisible issue brought before the court, and each of the relators is equally interested in the decision of that issue. The separate interests of the relators, which follow and depend upon the determination of this issue, are merely incidental, and are not before the court for any decision whatever. Is there a vacancy in the office of appellate judge, to be filled at the ensuing general election, and should the election commissioners therefore place the names of the relators on the ballot as candidates for that office? That is the question for decision, and it is too plain for argument that all the relators, nominees as they are for this office, have' a common interest in the decision of the question. They ask only that the court answer the question by saying “Yes” or “No,” and in this answer they all have a common interest.

Under authority of section 1 of article 7 of the constitution, which provides that, “The judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish,” the legislature, by an act approved February 28, 1891, created the Appellate Court, Acts 1891, p. 39, section 1336, Burns’ R. S. 1894 (6562a, Horner’s R. S. 1897), and following sections. By the terms of the act the State was divided into five Appellate Court districts, one judge to be elected from each district. The first judges were appointed by the Governor, “to serve until judges for said court shall be elected and qualified.” The term of office of such judges was fixed at four years from the first day of January next ensuing their election, except that the first judge elected in the first district should serve for two years, and the first judges elected in the second and third districts should each serve for three years. The limit of the existence of the court was fixed at six years from March 1, 1891. By an act approved March 4, 1893, the term of office of each of the judges first elected was fixed at four years from the 1st day of January, 1893. Acts 1893, p. 293, section 1341, Burns’ E. S. 1894. Thus stood the law at the time the present judges of the Appellate Court were elected, at the general election in November, 1896. They were to take their office on the 1st day of January, 1897, while the period of existence of the court was to end on the 1st day of March, 1897.

It is contended by the relators that, as the judges elected at the general election of 1896 were to take their office on the 1st day of January thereafter, and as the court itself was to end on the 1st day of March following, it therefore results that those judges were elected to serve for two months only; that is, from January 1, 1897, to March 1, 1897. Appellees, on the other hand, contend that, as the law fixed the term of office of the judges at four years from the 1st day of January following their election, it must result that the judges elected in November, 1896, were elected to serve for four years from January 1, 1897. It would seem that the contention of the relators must be correct. The general election of 1896 could be conducted only with reference to the law as it then stood. The term of the then incumbents of the office of appellate judge would expire on the 1st day of January thereafter, while the term of the court itself would expire on the 1st day of the succeeding March. The electors in casting their ballots for appellate judges in 1896 must therefore have had in mind that the officers to be elected could serve only from January to March, 1897. It would be absurd to say that the electors would, or could, choose judges to serve for a time after.March 1, 1897, when there would be no court in existence, as then provided by law.

. The people could not elect judges conditionally, on the supposition that the legislature might after-wards extend the life of the court. It would be quite as reasonable to say that the people could elect judges for a court that had not yet been created, on the supposition that such a court might thereafter be created. We can look only to the law in force at the time of the election to know the effect of an election then held. The people conduct an election by means of the machinery of existing law, not by virtue of law that formerly existed, or that may thereafter exist. It is absolutely certain, therefore, that, so far as their election by the people is concerned, the judges elected at the general election in November, 1896, were elected to serve from the expiration of the terms of their predecessors, and until the expiration of the term of the court itself; that is, from January 1, 1897, to March 1, 1897.

' Afterwards, by an act approved January 28, 1897, section 26 of the act of 1891, which limited the life of the court to the period of six years from March 1, 1891, was repealed; and the period of the existence of the court was extended for four years from January 1, 1897. Acts 1897, p. 10, section 6565a,, Horner’s R. S. 1897. Section 2 of this last act reads as follows: “That the term of office of each of the judges of said Appellate Court shall be four years from the first day of January next after his election; and that all of the present judges of said court shall continue to hold their office as such, respectively, for the districts for which they have been elected, for and during the term of four years from the first day of January, 1897.” The first clause of this section is but a reenactment of the original provision of the- law that the term of office of each of the judges should be four years from the 1st day of January next after his election. If by this reenactment the legislature intended to lengthen the terms of the judges already elected,— which would be the equivalent of appointing then! for such extended term, it is enough to say here, What will more fully appear hereafter, that the legislature had no such power. If the clause, however, was but a formal reenactment of the provision originally embraced in the statute, as first enacted in 1891, it is to be said that the reenactment left the law, in this respect, just as it had been at the- time of the election of the present judges in November, 1896;- and from what we have already said it is clear that the reenactment of the provision could have no effect upon the action of the electors in the previous November. By the second clause of the section, however, the legislature attempted to provide: “That all of the present judges of said court shall continue to hold their offices as such, respectively, for the districts for which they have been elected, for and during the term of four years from the first day of January, 1897.”

Two facts are plain from this clause: First, the legislature explicitly recognized the incumbents as elective officers, elected by the people at'the previous general election; and, second, the legislature assumed to itself the right to continue the judges in office for the full term to which the court had been extended. That the office is one elective by the people, save only that- in case of vacancy an appointment may be made by the Governor, is not only recognized by the various acts in relation to the establishment and membership of the Appellate Court, but is also clear from the constitution itself. It is provided in article 5, section 18, of that instrument, that, “When, at ‘any time, a vacancy shall have occurred * * * in the office of judge of any court; the Governor shall fill such vacancy by appointment, which shall expire when a. successor shall have been elected and qualified.” “In two methods, and two only,” said this court in commenting on the foregoing provision of the constitution, “can. judges be chosen, by the people and by the chief executive,-—and by the latter only where there is a vacancy.”' State, ex rel., v. Noble, 118 Ind. 350, 4 L. R. A. 101. That the legislature cannot fill the office of judge of any court by its own appointment ought to be so evident as pot to be in any manner controverted. If the^e is one principle that stands out more clearly in our constitution than! any other, it is that the three departments of government, legislative, executive and judicial, are not merely equal, but are exclusive in respect to the duties assigned to each; that is,they are absolutely independent of one another. State, ex rel., v. Noble, supra. But if the legislature could appoint, or continue in office after the expiration of the term for which they have been elected, the judges of any court, that would at once, to that extent, subject the judicial to the control of the legislative department. Speaking of the constitutional amendment adopted as a preliminary to the creation of the Appellate Court, it was said in the case above cited: “We know judicially that our constitution was so amended as to invest the legislature with power to create courts superior to the circuit courts, and that this was done for the purpose of enabling litigants to have appeals disposed of by a constitutional tribunal. It cannot be unknown to any one that all the departments'of the government believed that the only method of administering the laws, was by courts created under the provisions of the constitution, and this belief the people confirmed by their votes in favor of the constitutional amendment. This supplies strong reasons for holding, as we do, that no body not provided for by the constitution can exercise any part of the judicial power of the State.”

It was accordingly held in that case that the legislature conld not appoint commissioners to assist this court in the discharge of its duties. Still less could the legislature appoint the members of a court itself, or continue such members in office for a time beyond that for which they had been chosen by the people. We are therefore clearly of opinion that the second clause of section 2 of the act in question, by which the General Assembly attempted to provide that the present judges of the Appellate Court should continue to hold their offices for any time beyond the time for which they had been elected, is wholly void.

It seems to have been attempted by counsel to draw from the-provisions of article 15 of section 1 of the constitution some argument in favor of the power of the legislature to. appoint, or, what amounts to the same thing, to extend the terms of, judges of the Appellate Court already elected. That section of the constitution reads: “All officers whose appointments are not otherwise provided for in this constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law.” But a cofistruction has been given to- this section adversely to the theory of counsel, by decision of this court, in State, ex rel., v. Denny, 118 Ind. 382; City of Evansville v. State, ex rel., 118 Ind. 426; State, ex rel., v. Denny, 118 Ind. 449; and State, ex rel., v. Peelle, 121 Ind. 495. It was held in those cases that by the section of the constitution referred to authority is conferred upon the legislature to prescribe by law the manner of electing such officers, but not the power itself to elect them.

Another like contention of counsel may be noticed here. It is, if we understand it, that, because the legislature has the power to create an Appellate Court and to fix the tenure of office of the judges for any time not exceeding four years,, it therefore follows that the legislature might provide for the filling of the office's for that time, by extending the terms of the incumbents to any time within the four-year period, even though that should be beyond the time of a general election, when the people could fill the offices. We have already shown, as we think, that the legislature has no right to fill the offices for any time, no matter how short. In addition, the consti-tution (article' 2, section 14) provides expressly for general elections, to be held on the first Tuesday after the first Monday in November, with a proviso 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.” Here is a plain recognition, if it were needed, of the right of the people to elect judges at general elections, save only in case the legislature has designated some other time for that purpose. It follows, therefore, that, even if the legislature had,—as it has not—the power to fill the office of judge by appointment, it could fill such office only until the time .of the next general eléction, when the people could perform that high function for themselves. Counsel, in this connection, contend very stoutly that there was no vacancy in the office of appellate judge, such as the Governor could fill on the 1st day of March, 1897. Whether the extension of the life of the Appellate Court from March 1, 1897, until January 1, 1901, as made by the act of January 28, 1897, supra, was the creation of a new court, so as to cause an immediate vacancy in the office of the judges, we are not called upon to decide. The incumbents of the office on March 1, 1897, have continued to sit as judges of the. court up to this time; and for the purposes of this action it is immaterial whether they continued as holding over under the constitution until their successors should be elected and qualified, or whether they have been filling a vacancy as de facto officers. At furthest, and giving to them the benefit of all uncertainties as to their right to sit as judges after March 1, 1897, there can be no manner of doubt that they cannot continue to hold their offices after their successors are elected at the ensuing general election, and after such successors qualify and demand their offices on the 1st day of January, 1899. But counsel for appellees say that, even if the last clause of section 2 of the act of January 28, 1897, supra, in which the legislature assumed the right and power to appoint the judges of the Appellate Court, or to continue them in office after March 1, 1897, should be held invalid, yet the first clause of that section, which fixed the term of office of - said judges at four years, construed in connection with section 3 of the act, which extended the period of existence of the court for four years from January 1, 1897, had the retroactive and incidental effect of causing the judges who had been elected at the preceding general election to have been chosen for a- period of four years. This argument rests on the assumption that the people elected those judges with the knowledge that the legislature might afterwards repeal the section of the law that then limited the life of the court, and so enable the judges to hold for a term of four years. We think we have already said enough to show the absurdity of this argument. The people elect officers with a view.to the provisions of the law as it exists at the time of the election. According to the reasoning of counsel, the people might at any general election, choose judges of a court of conciliation, or of any other court which, the legislature might establish, because of the knowledge the people would have at the time of the election that the legislature might at its ensuing session create such a court. The people choose officers for definite terms,—terms to begin and end at a known time, as fixed by the law in force at the date of the election. The fact that the legislature may thereafter abolish the office, or shorten or lengthen its duration, has nothing to do with the election itself. The constitution and the laws provide for filling vacancies, or for officers holding over until the time when the people may elect. The election itself, however, is independent of those future possibilities and contingencies.

The turning point in the case seems to be upon the question, were the incumbents of the office of appellate judge elected in 1896 for a term of four years? . Since it must be conceded that the prescribed duration of the office was but two months from the expiration of the term of their predecessors, but one answer would seem possible, namely, that they could be elected for no longer period than the expressed duration of the office. The possibility of holding longer required legislative action which should give the office renewed life. It seems too plain for argument that the right to hold the office, from whatever source that right is derived, depends upon the existence of the office. Just how the people could be deemed to have elected for four years to an office which they had said, through their legislature, should expire in two months, seems beyond comprehension. The conclusion that they did so intend must rest upon the assumption that they then anticipated that the life of the court would be extended long enough to fill out the four years. The assumption cannot be authorized merely from the circumstance that the act was afterwards passed. It is sufficiently difficult to know what laws have been passed, and the people cannot be held to know what laws will be passed.

In State, ex rel., v. Long, 91 Ind. 351, it appeared that Long had been elected to the office of county recorder, and that before his term began his predecessor resigned, and Long was appointed to fill the vacancy, receiving a commission to fill such vacancy, and also a commission for his regular term thereafter. His successor, elected at the next general election, claimed that Long had only one term,'which began at the date of the resignation of his predecessor. This court, however, held that the people had elected Long for a regular term to begin at the end of his predecessor’s regular term, and that he was entitled to fill out that regular term, notwithstanding he had also been appointed to fill the vacancy occasioned by his predecessor’s resignation. “Long’s election,” said the court, “gave him no right to the office until the expiration of the period for which Small [his predecessor] had been elected. * * * The term for which Long had been elected could not be changed by any act of Small.” There, as here, the people voted for the officer for a term provided by the law as it then existed. It is wholly inadmissible, as said by the court in People v. Palmer, 154 N. Y. 133, 47 N. E. 1084, that the electors voted for an officer for a term to be thereafter fixed by the legislature.

The case was a very plain one when the people assembled at the polls at the general election, in 1896. There was an Appellate Court in existence, whose life was limited by the law upon the statute book, to the 1st day of March, 1897. There could then be no such thing as electing any one to fill the office of appellate judge after that date. In order that there be a judge there must be a court; or, as it said in State, ex rel., v. Friedley, 135 Ind. 119, 21 L. R. A. 634. “There can be no such thing as an' office without responsive duties and functions to be performed by the officer.” The people with this knowledge, therefore, could elect no judge of the Appellate Court for any time beyond the life of the court. Consequently,- if the judges then elected had any authority to sit as such officers after March 1, 1897, such authority could not come from the electors, but must come from appointment by the Governor to fill a vacancy, or by. holding over under the constitution until their successors should be elected and qualified. Any act of the legislature, we have already seen, could give them no official life. Two or three cases have been cited from courts of other states in support of the contention of appellees, but they are either not in point, as based on constitutional provisions different from our own, or else as being not well reasoned. Cases which abundantly support the conclusions we have reached are People v. Palmer, supra; People v. Bull, 46 N. Y. 57; People v. Foley, 148 N. Y. 677, 43 N. E. 171; People v. Burch, 84 Mich. 408, 47 N. W. 765; and StatE v. Arrington, 18 Nev. 412, 4 Pac. 735.

The contention of appellees that, because the legislature, by amendment of the statute, might have extended the life of the court to four years at any time before the election, and the judges would therefore have been elected for a full term of four years, it follows that the same results must take place when the legislature amends the statute in like’ manner after the election, for the reason, as counsel say, that an amendment to a statute becomes a part thereof, as if it had been enacted as a part of the original statute, is utterly fallacious, so far as it affects operations under the statute before such amendment. This principle was recognized by this court, as now constituted, .in Walsh v. State, ex rel., 142 Ind. 357, 33 L. R. A. 392, where an amendment to a fee and salary law, though held to be a part of the law, as if originally enacted with it, was yet construed to operate only as to matters occurring after the amendment. The court there cited, also, from State v. City of Cincinnati, 52 O. St. 419, 40 N. E. 508, 27 L. R. A. 737, where it was also held that “An unconstitutional statute may be amended into a Constitutional one, so far as its future operation is concerned.” In full harmony with this ruling is 23 Am. and Eng. Enc. of Law, 284, where it is said, citing numerous authorities: “An amendatory act takes effect from the time of its passage and has no retroactive effect, in the absence of an expressed intent to the contrary. The original statute governs rights which have accrued before its amendment, but as to future acts the law as amended governs.” Here the office was first filled by the people, and the duration of the term was afterwards attempted to be fixed, or rather changed, by the legislature. It is clear that the legislature had no power to do this: “In any proper sense,” said the New York court of appeals, in People v. Bull, supra, “where the office is to be filled by one authority, and the duration of the term thereof is to be determined by another, the declaration of the duration must go before the filling, so that each authority may have its legitimate exercise.” We are therefore of opinion that the period of time for which the present judges of the Appellate Court were elected came to an end on March 1, 1897, and that, whether appointed or holding over after that date, they can hold only until the election and qualification of their successors; and, therefore, that the state board of election commissioners should have placed the names of the relators upon the official ballot as candidates for said offices.

The judgment is reversed, with instructions to overrule the demurrer to the complaint and alternative writ, and for further proceedings not inconsistent with this opinion. The clerk is directed to certify this decision to the lower court at once.

Jordan and Monks, J. J., dissent; opinion by Jordan, J.