State ex rel. Harrison v. Menaugh

Jokdan, J. This action was instituted by the relator to obtain a writ of mandate against appellees to compel them to take the necessary steps in order that an election might be held in Columbia township, Whitley county, Indiana, on the first Tuesday after the first Monday in November, 1898, for the purpose of electing a trustee for that township. Each of the appellees filed a separate demurrer to the complaint, which the court sustained, and the relator refusing to amend, judgment was rendered against him for cost. Sustaining these several demurrers constitutes the errors assigned in this court. The only questions raised and discussed by the parties to this appeal relate to the constitutional validity of an act of the legislature, approved February 25, 1897 (Acts 1897, p. 61). The title of this statute, and the first section thereof, are as follows: “An act providing for changing the time of electing certain township officers, fixing the time when they shall qualify and assume the duties of their respective offices, providing for separate ballots and ballot boxes, and repealing all laws and parts of laws in conflict therewith. Section 1. Be it enacted by the General Assem — 262 — bly of the State of Indiana, That the time for holding* the election of township trustees and assessors shall be changed from the general election on the first Tuesday after the first Monday in November, 1898, to the general election on the first Tuesday after the first Monday in November, 1900, and at the general election on the first Tuesday after the first Monday in November of every fourth year thereafter. Said township trustees and assessors shall qualify as now provided by law, and enter upon the discharge of the duties of their respective offices at the expiration of ten days after such election.” Section 2 provides that the time of holding the election of justices of the peace, constables, and other officers of the township shall remain as now fixed by law. Section 3 declares that, “the election of said township officers shall be conducted under the provisions of the law governing said general elections.” The fourth section relates to the ballots and ballot boxes to be used at the election of township officers. The fifth section repeals all laws in conflict with the act. It is insisted by counsel for appellant that as this act is invalid by reason of its being repugnant to the constitution, therefore the law of 1893 (Acts 1893, p. 192, section 6290, Burns’ R. S. 1894) whereby the time of holding the election for township officers was changed from April to the first Tuesday after the first Monday in November, 1894, and every fourth year thereafter, is still in force, and consequently the election of township trustees must be held at the November election in 1898. It will be observed that the act of 1897, supra, applies only to township trustees and assessors, and changes the time of the election of these officials from the general election in November, 1898, as provided for by the act of 1893, to the general election in November, 1900, and every fourth year there — 263 — after; and further provides that these officers shall qualify and enter upon the discharge of the duties of their respective offices at the expiration of ten days after such election. The time of electing justices of the peace, constables, and such other township officers as may be provided for by law, is left unchanged, and remains as fixed by the act of 1893, supra. If the act of 1897 is a valid exercise of legislative power, no elec-’ tion of township trustees and assessors can be held by reason thereof, until the general election in November, 1900, unless the legislature at its next session provides for one to be held at an earlier time. . Appellant’s learned counsel challenge the constitutional validity of the law in controversy, upon the ground that it extends the term of trustees elected in 1894 beyond the period of four years, the time allotted by the constitution for the tenure of an office created by the legislature. Or, in other words, they virtually contend that, as section 2, article 15, of the constitution inhibits the General Assembly from creating any. office, the tenure of which shall be longer than four years, that by this inhibition the legislature has no power to extend the term of a township trustee beyond the period of four years, which it is contended the act of 1897, as a necessary result, does, in respect to trustees elected at the November election in 1894, and therefore it is in violation of this provision of the constitution. Counsel assert that, as under the provisions of the act in question, the election of trustees being postponed until November, 1900, the result will be that the present incumbents will hold for two years beyond the constitutional limit. They say: “Of course,- this act does not expressly appoint the present incumbents, but it does produce that result, and we contend that in the consideration of the act, we must look to the results, and, where the results would be — 264 — absolutely repugnant to the constitution, a law cannot be upheld.” It is conceded that under article 2, section 14, of the constitution, the right to provide for or fix the time for holding township elections is reserved for the legislature, but the contention seems to be that this provision of the constitution contemplates that elections for township officers must at least be held once in every period of four years, and therefore the legislature has no power to enact a law like the one in dispute, which operates in changing or postponing the time for electing trustees beyond the quadrennial period. Before reviewing the cardinal question involved, we may say that if the objections urged by appellant against the validity of the act of 1897 can be sustained, then the effect of such holding would certainly result in striking down the act of 1893, under which the relator seeks to compel appellees to hold an election in November, 1898. Unquestionably it can be said of the latter act that it is impressed with the same infirmities which are alleged to exist against the statute of 1897. It expressly changed or postponed the time of electing trustees and other township officers from the first Monday in April, 1894, as provided by the amendatory act of 1889 (Acts 1889, p. 425), to the time of holding the general election in November, 1894, and every fourth year thereafter, and thereby, if the argument of counsel for appellant is sound, extended the holding of the trustees elected in April, 1890, three months in excess of four years'. It will be seen that trustees elected at the April election, 1890, by reason of the provision of the act approved March 9, 1889 (Acts 1889, p. 344), entered upon the discharge of their duties on the first Monday in August of that year, and the time of electing their successors being — 265 — fixed by tbe act of 1893 on the first Tuesday after the first Monday in November, in 1894. Thus, if the reasoning of appellant can be accepted as correct, it operated to extend their terms three months, at least, over or beyond the constitutional limit of four years; and, in accordance with the insistence of counsel, for this reason the act of 1893 must be condemned for violating the constitution in like manner as does the act of 1897, and, without further legislation, the law of 1889 would control, and the time for holding an election under the latter would not again occur until April, 1902. But this would not be.the only result which would follow a decision of this court adverse to the validity of the act of 1897. The act of 1893 being unconstitutional and void under appellant’s contention, consequently there was no legal authority for electing township trustees and assessors at the November election in 1894, and therefore the present incumbents would not be legally entitled to hold their ■offices, and could be ousted therefrom, and those whom they succeeded might be, if they desired, reinstated into the offices which they, as it might be said, without authority of law, surrendered; and no doubt numerous suits would be instituted on the part of trustees-and assessors elected in 1890 against present incumbents, to obtain possession of the respective offices, together with the past emoluments thereof. Passing these features of the case, however, as of no present consequence, in view of our ultimate conclusion, they being mentioned merely to show the deplorable results which would follow an adverse decision on the validity of the act in question, in the event our views on the law constrained us so to decide, we proceed to consider and determine the real ■question in controversy between the parties. It becomes necessary for us to refer to and examine — 266 — certain provisions of the constitution which the parties to this appeal insist have a material bearing upon the decision of the questions presented. It must be remembered that under article 4, section 1,' of the state constitution, all legislative authority is lodged in the General Assembly, and as regards this authority, that body is considered supreme and sovereign, subject to no restrictions except those which the state constitution expressly or impliedly imposes, and the restraints of the federal constitution and the laws and treaties passed and made pursuant thereto. Aside from these inhibitions or restrictions, the legislature may be said to be unfettered in the exercise of the power with which it has been invested. This doctrine has been repeatedly affirmed in many of the decisions of this court. See Beauchamp v. State, 6 Blackf. 299; Beebe v. State, 6 Ind. 501, 63 Am. Dec. 391; Lafayette, etc., R. R. Co. v. Geiger, 34 Ind. 185; Mount v. State, ex rel., 90 Ind. 29, 46 Am. Rep. 192; Robinson v. Schenck, 102 Ind. 307; Hovey v. State, ex rel., 119 Ind. 395; Hancock v. Yaden, 121 Ind. 366; State, ex rel., v. McClelland, 138 Ind. 395; Townsend v. State, 147 Ind. 624. The sole contention of appellant, as previously stated, is that the statute in question is antagonistic to*the fundamental law of the State. As against this attack upon an act of the legislative department, this court must indulge all reasonable presumption in favor of its validity; and, guided by a well settled rule, we cannot consistently declare the statute in controversy invalid unless it is clearly, palpably, and plainly shown to be violative of the constitution, so as to remove all reasonable doubts that may exist in the mind of the court in respect to its alleged invalidity. State, ex rel., v. McClelland, supra; State v. Gerhardt, 145 — 267 — Ind. 439; Townsend v. State, supra. Being therefore required to give the benefit of all reasonable doubts in favor of the validity of the act of the lawmaking power, it is consequently incumbent upon him who assails its validity to establish affirmatively and clearly his charge to the exclusion of all such doubts. Especially must this rule prevail in view of the fact that the legislature is invested with plenary power for all purposes of civil government. Therefore an inhibition to exercise a particular power is an exception, and the burden must rest upon the party who questions the validity of a statute to show that it is forbidden. Jamieson v. Indiana, etc., Gas Co., 128 Ind. 555, and cases cited; State, ex rel., v. McClelland, supra; Cooley Const. Lim. 105. It was well said by Chief Justice Black, in Sharpless v. Mayor, etc., 21 Pa. St. 147, on p. 161 of the opinion, as follows: “The constitution has given us a list of the things which the legislature may not do. If we extend that list, we alter the instrument, we become ourselves the aggressors, and violate both the letter and the spirit of the organic law as grossly as the legislature possibly could. If we can add to the reserved rights of the people, we can take them away; if we can mend, we can mar; if we can remove the landmarks which we find established, we can obliterate them; if we can change the constitution in any particular, there is nothing but our own will to prevent us from demolishing it entirely.” It may be true, perhaps, as counsel for appellant would seem to insist, that the great power conferred upon the legislature may be and sometimes is abused, but the remedy for this evil lies in an appeal to the people, who, in their sovereign capacity, can correct it, and not by appeal to the judiciary. There is no reason for assuming that the mere abuse by the legislature of its power was in — 268 — tended to be corrected by the courts. Brown v. Buzan, 24 Ind. 194; State, ex rel., v. Kolsem, 130 Ind. 434. If the latter should assume to protect the people against the abuse of power upon the part of their own servants or representatives, it would be the equivalent of attempting to protect the people against their own abuse. We have repeatedly affirmed that the question whether an act of the General Assembly is politic, expedient, or necessary is one of legislative discretion, which is not subject to judicial review; and we have not the liberty to declare a statute void because it is not in harmony with our opinions in respect to policy, expediency or justice. If the people are aggrieved by the action of their representatives in the General Assembly, the way to redress the wrong is open to them at the next biennial election. The question in this cáse with which we have to deal is not whether the power to change or repeal a statute relative to the time of the holding of township elections has been conferred upon the legislature, but whether such power has been restricted or withheld by the organic law of the State. / Article 2, section 14, of the constitution provides that “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, etc.” Article 6, section 3, provides that “Such other county and township officers as may be necessary shall be elected or appointed in such a manner as may be prescribed by law.” (Our italics.) Article 15, section 2, reads as follows: .“When the duration of any office is not provided for by this constitution, it may be declared by law * * *. But the General Assembly shall not create any office the tenure of which shall be longer than four years.” The express restriction imposed by this last section is that the General Assem — 269 — bly shall not create any office the prescribed term of which is longer than four years. Section 8 of the same article provides that “Whenever it is provided in this constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified.” Tested by any or all of these provisons, and it is evident, we think, that no express or implied antagonism can be held to exist between any of them and the statute in. dispute. We are of the opinion that the constitution will be searched in vain to discover any restriction against the enactment of a statute of the character or purport of the one here involved. That the creation of the office of township trustee, under our constitution, is a matter which is left wholly with the legislature, is undisputed. It may or may not, in the exercise of its discretion, create such an office, but if it chooses to do so, the tenure prescribed cannot be in excess of four years. Within this limit, the legislature, in its discretion, may enlarge, abridge or otherwise change the term of the office, or abolish it entirely, and repeal all laws pertaining thereto. State, ex rel., v. Bell, 116 Ind. 1; State, ex rel., v. Bogard, 128 Ind. 480. The electors of this State have no unalterable right to elect township trustees at the polls, for, as we have seen, the legislature, under the constitution, has the power to provide that they may be chosen by election or appointment. The constitution in no uncertain terms declares that “township elections may he held at such time as may be prescribed by lato.” (Our italics.) The power to fix the time at which the people may elect township officers is by this provision of the constitu — 270 — tion left entirely with the legislative department. This power is a continuing one, and surely it cannot be said to be exhausted by being once exercised. The legislature may from time to time direct when the election shall take place. That the General Assembly may, unless restricted by the constitution, amend, change, or repeal the acts of its predecessors, is a right which cannot be successfully questioned. Its power to make a reasonable change in the time of holding township elections from that fixed by a previous law, is certainly a legitimate exercise of the power with which it is invested. Wall v. State, 23 Ind. 150; State, ex rel., v. Haworth, 122 Ind. 462; Bloomer v. Stolley, 5 McLean 158; Jordan v. Bailey, 37 Minn. 174, 33 N. W. 778. In State, ex rel., v. Haworth, supra, it is said: “To deny power to change, is to affirm that progress is impossible, and that we must move forever fin the dim footsteps of antiquity.’ But the legislative power moves in a constant stream, and- is not exhausted by its exercise in any number of instances, however great.” In fact, the power of the legislature to fix or change the time of electing township trustees has always been recognized, and not, to our knowledge, until now has it ever been called in question. Formerly such elections were held in April, then changed to October, then back again to April, and subsequently, by the act of 1893, to November. The power or right of the legislature to change the time of electing trustees or other township officers from the time fixed by a former law being recognized, as it must be, as a continuing and existing right or power, the mere fact that the legislature, in the exercise thereof, may deprive the electors for a reasonable time of electing successors to present incumbents, will not alone, op271 «rate to render the act providing for the change unconstitutional, and thereby invalid. Counsel for appellant seem especially to base their contention on section 2 of article 15 of the constitution, which, as we have seen, prohibits thq legislature from creating any office the tenure of which shall be longer than four years, and their insistence is that this restriction will prevent the act in question from being upheld. It is manifest, we think, that this contention is wholly untenable. An examination of the act will readily disclose that it does not profess to create the office of township trustee, nor to extend the term thereof beyond the constitutional limit. It proceeds upon the theory that the office has been previously created, and it merely declares as the legislative will that the time of holding an election for township trustees, etc., shall be changed from the general election on the first Tuesday after the first Monday in November, 1898, to the general election on the first Tuesday after the first Monday in November, 1900, and on such day “of every fourth year thereafter.” The trustees and assessors elected thereunder are thereby authorized to qualify as provided by existing laws, and enter upon the discharge of their official duties at the expiration of ten days after such election. These provisions of the law do not appear to us to be impressed with any constitutional infirmities. The change or postponing of the time of electing these officers from the general election in 1898 to the next general election, cannot be said to be so unreasonable as to render the law open to judicial condemnation on that ground, especially in view of the fact that the members of the General Assembly to be elected at the coming election in November can change the time of the election to an earlier date. The act does not in any manner profess nor attempt to extend the tenure — 272 — of the trustees elected in 1894, nor of those to be elected thereunder in 1900, beyond the constitutional limit of four years. If it provided that the election should be held in 1900 and every fifth or sixth year thereafter, quite a different question would be presented. The statute in question makes no reference to present incumbents. It neither pretends nor attempts to abridge nor enlarge their tenure. In no sense, under its terms or provisions, can it be said to be retrospective, but is wholly prospective, and in no manner does it take into consideration the question as to the holding of any of the present incumbents of the office; and the question as to whether they will hold over under the provisions of section 3 of article 15 of the constitution, or some other provision of the law, until their successors are elected and qualified, remains, under this act, wholly intact. Consequently, if incumbent trustees are permitted to hold beyond four years, it cannot in legal contemplation, be attributed to the provisions of the act in controversy, but will be due to the force and effect of the provision of the constitution last mentioned, which, as we have seen, provides that the prescribed tenure of any office under the constitution, or any law, other than a member of the General Assembly, “shall be construed to mem that such officer shall hold his office for such term md until Ms successor shall have been elected and qualified (Our italics.) Certainly what results from the force and operation of the constitution itself cannot be said to be unconstitutional. There is some question, it is true, as to whether at common law an officer was entitled to hold beyond his prescribed term. But the general rule of the common law seems to be that, when the term of an office to which one is elected or appointed expires, the power of the incumbent to per — 273 — form the duties thereof is terminated. Mechem’s Pub. Officers, section 396, and authorities there cited. It is elementary that the law abhors vacancies in' public offices, and great precaution is usually taken to guard against their occurrence; and courts of this country have not adhered to a strict rule, and in the absence of some express or implied legal restriction, the officer is held to be entitled to hold his office until ■ he is superseded by the election and qualification of another person. State, ex rel., v. Harrison, 113 Ind. 434, and authorities there cited; Mechem’s Pub. Officers, section 397; Throop’s Pub. Officers, section 308.-It was no doubt the design of the molders of our fundamental law, by incorporating therein a provision that public officials should hold for their prescribed constitutional or statutory terms, as the case might be, and until their successors are elected and qualified, to guard against the possibility of the office becoming vacant, and the powers and duties of the incumbent being terminated, before some one had been duly selected and qualified, as provided by law, to succeed him. See Fesler v. Brayton, 145 Ind. 71, 77. In consideration of this constitutional provision, the electors' of this State, when, by their ballots, they designate á person to fill a public office the tenure of which is prescribed. either by the constitution or some statute,' must be presumed to understand and know that thé’ contingent holding of the officer until his successor is elected and qualified, is as much a part of the term for which he is elected as is that which is expressly' prescribed and fixed. Kimberlin v. State, ex rel., 130 Ind. 120; State, ex rel., v. Bogard, supra. Therefore, the contention of appellant that the act in question operates to continue the present incumbents in office until 1900, in opposition to the will of the people, is of274 no merit and without force. Mitchell, C. J., speaking for the court, in State, ex rel., v. Harrison, supra, in respect to this provision of our constitution, on p. 442 of the opinion, said: “It is certain, therefore, that all offices to which the above constitutional provision applies are held by the same title, or by as high and lawful tenure, after the prescribed term, until the title of the duly elected and qualified successor attaches, as before and during such term.” Continuing, on p. 447 of the opinion, he said: “After the expiration of the term fixed by the General Assembly, the tenure or title of the officer is not under or by legislative approbation or authority, but by the continuing and superior authority and approbation of the constitution.” See also upon this point, Commonwealth v. Hanley, 9 Pa. St. 513. Reliance is placed on the case of State, ex rel., v Wells, 144 Ind. 231, and it is cited by appellant to sustain the invalidity which he imputes to the statute in dispute. The decision in that case, however, in view of the question there involved, cannot be invoked as an authority in support of his insistence, but some of the reasoning in the opinion in that case may be said to “fight” on the side of the appellees in this appeal. It is there said: “Certainly a change in the date of an election cannot affect the term of office to be filled. If the office becomes vacant by the change of date of filling it, the constitution makes ample provision therefor by continuing the old incumbent in office until his successor is elected and qualified.” Of course the word “vacant,” as employed by the writer of the opinion in that case, was used in the sense or meaning of the expiration of the prescribed term of the office. The question involved in the Wells case was, to an extent at least, of like character to the one in controversy in Griebel v. State, 111 Ind. 369. It was further — 275 — said in the Wells case that there could be no election of township trustees except at the time provided by the act of 1893. The decision in that case rests upon the validity of the act of 1893, and its effect was to affirm, impliedly, at least, the validity of that statute. It is-certain that a decision by this court adverse to the validity of the law of 1897 would result in uprooting the decision in the Wells case, and would, as heretofore said, pave the way to ousting present incumbents, and to the reinstatement of the trustees and assessors elected at the April election in 1890. Counsel for appellant have referred us to People v. Bull, 46 N. Y. 57, 7 Am. Rep. 302. The decision in that case is in no manner helpful to the appellant’s side of the issue in the case at bar, for the question there raised was in respect to the power of the legislature, under the constitution of the state of New York, at the expiration of the term of the incumbent of an elective office, to extend, by an express enactment, his term for three years beyond that for which he had been elected. It was therein held that it was not competent, under the constitution of that state, for the legislature to put or continue a person in office in that manner, without an election by the people. In that case, Folger, J., speaking for the court, in the course of the opinion, on p. 68, said: “The constitution empowers the legislature, in the clause first above quoted, to direct the times and manner of the election. This power is not exhausted by being once exercised. It is a continuing power. And the legislature may from time to time, as it sees occasion, direct when, and how the election shall take place.” While it is true that the case of People v. Bull, supra, does in fact deny that the legislature under the then existing constitution of New York, had the power, by express enactment, to lengthen the tenure of the incumbent of the office, — 276 — still it also affirms the constitutional right of that body to fix and change, at its discretion, the time when the charter election shall be held, and, to this extent, at least, the case is an authority in support of the right of the legislature, under our constitution, to change the time of holding township elections. A defect in the argument of appellant, to an extent at least, is that he assumes that the act of 1897 extends the term of the office of township trustees, and his assault on the validity of the law, proceeds upon the ground of his assumption. The legislature of 1869 changed the time of the annual election of county and township officers, and provided for their biennial election, declaring in the act that the first election thereunder should be held on the second Tuesday in October, 1870, and on that day biennially thereafter. (Acts 1869, p. 57). It is a fact well known that many of the county officers throughout the State, whose successors, in the absence of the change in the time of holding the election, would have been elected at the annual October election in 1869, held over, under the provision of the constitution, until their successors were elected, in October, 1870, and qualified, thereby holding and discharging the duties of their respective offices for a year and over beyond the tenure prescribed by the constitution. And yet we have no recollection that the validity of that act of the legislature was ever called in question on the ground that it operated to extend the term of the incumbents holding over beyond the time fixed by the constitution, and the statute stood unchallenged, we believe, until superseded by the law of 1881. Section 4678, R. S. 1881. 'If the insistence of appellant in respect to the act of 1897 is correct, then it necessarily would follow that the legislature, in 1869, was powerless to change from an annual to a biennial election, and the people would — 277 — have either been compelled to change the constitution, or submit forever to the extra expense of holding annual elections. For a like reason, the legislature would have been fettered and devoid of power to change township elections from April to November, as it did in the act of 1893. The mere mention of a proposition denying the right or power of the legislative department in this respect ought to suffice to expose the weakness thereof. If it were necessary to look beyond the decisions of this court for support of the- ultimate conclusion reached in this appeal, the case of the State, ex rel., v. McCracken, 51 Ohio St. 123, 36 N. E. 941, is directly in point. The constitution of Ohio provides for the election of a clerk of the court of common pleas, who, as therein declared, shall hold his .office for the term of three years, and until his successor is elected and qualified. The legislature of that state, in March, 1893, by an act, provided that the clerk of the court of common pleas should be elected triennially, and hold his office for three years, his term being fixed by the act to begin on the first Monday in August after his election. The contention in that case was that the act was invalid because it operated to extend the term of incumbents beyond the time fixed by the constitution. This the court denied, and sustained the validity of the law, saying, in the course of its opinion, on p. 127: “The assumption, we think, is not warranted. The act in question does not purport to extend the term of the incumbent, nor does it in effect do that. The result of this legislation upon the incumbent depends wholly on the constitution. If, by virtue of section 16, of article 4, a vacancy is created, then the term of the incumbent is not extended; if, under that section no vacancy ensues, it is the force and effect of the constitution, and not of the statute, which extends — 278 — the term.” The decision of the supreme court of Missouri in State, ex rel., v. McGovney, 92 Mo. 428, 3 S. W. 867, is also in point, to sustain the right of the legislature to make, changes in the times of electing public officers. Other minor objections are made against the validity of the act, among which is that the subject-matter thereof is not sufficiently expressed in the title. There is no merit in this contention, for it is evident that, under the many decisions of this court, the title of the act is sufficient. The law does not, as insisted, attempt to fix the time of electing justices of the peace, constables and other officers of the township; but, ás previously said, it leaves the time fixed for the election of such officers unchanged. From what we have said, and by force of the authorities cited, the conclusion must necessarily follow, that if the incumbent trustees hold and discharge the duties of their offices beyond the term of four years by reason of their successors not being elected and qualified, they will be permitted to do so under the express warrant of the constitution, and not by the act of 1897. It follows that the law in question is, and we so hold, a valid exercise of legislative power, and its validity is therefore sustained, and there can be no election of township trustees and assessors thereunder until the time therein fixed and provided. The judgment is affirmed at the cost of the relator. Hackney, C. J., and Howard, J., dissent.