The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-10-12
APPELLATE CASE BRIEF
ARGUMENT WILL BE HEARD BY THE
SUPREME BENCH TO-DAY.
Contentious by the Attorney General
as to the Authority of the
Legislature.

morning filed his brief in the Supreme Court
in the Appellate judgeship case. The docu-
ment comprises nearly fifty pages of type
written matter and contains points in con-
tention on the part of the State, that have
not as yet been considered by those out
side of the attorney generals office.
Stripped Of its legal verbiage and the in
Vulnerable quotations Of authorities, up
holding the position taken by the appellees,
the document is as follows:
THE record does not require this court to
pass upon the constitutionaity of the act OF
Jan. g. 1897, touching the Appellate Court,
for the reason that the constitutonalty of
a statute will not be determined by the
court when the cause in which the deter
mlnation was sought may be decided and
finally disposed of without such decision.
The REALTORS are the real party in in
been brought directly in their name, as in
the name of the State on relation.
Taylor, as the nominee of the party has
an interest in the question as to whether
his name shall be placed upon the ticket;
but as such has no interest in Kopelke S
name being placed on the ticket, and there
fore the complaint does not show a Joint
cause of action in favor of all the REALTORS.
and q complaint. in order to DE sufficient
must show a cause of action in favor of
all the plaintiffs.
There were and are no vacancies in the
offices of the judges of the Appellate Court.
The present incumbents hold for four years
y.
Of the acts of Feb. 2S. 1891 March A. 1898, and
Jan. Is. 1897. each of which fixes the term
of the judges of said court at four years,
and as the term Of the present judges did
not commence until JAN /. 1897, they have
the right to continue in office until Jan.
i: 1901, subject only to the contingency that
the court shall not continue long.
THE act OF Jan. rs. 1897, in so far as it
prolongs the existence of the Appellate
Court to Jan J. 1901, is valid legislation,
and the present judges having been pre-
yiously elected for four years, the effect
of the act was to avoid vacancy and pre-
vent the going out of office of the judges
until the expiration of their term.
While the Legislature has no power to
extend the term of an officer beyond the
clear right, by appropriate legislation, to
prolong or abridge the duration of an office
of its own creation. which it had the power
to create, to any period in the future, and
power provided the act of prolongaton
was passed during the lifetime of the office,
the constitutional limitation of four years.
If the act of prolongation results in con-
tinung an officer in office, previously
original life of the office, such continuation
will be valid until the expiration of the
term for which he was elected, even though
such period be beyond that of the original
life of the office.
When the voters of Indiana at the cleo
ton of 1896 elected the judges of the APP
pellate Court they did so with reference to
the fact that the Legislature might, at it's
pleasure, prolong or shorten the life or term
of said court, or leave ii as it then was, linn
tied by law. and hence, they elected the
present judges of said court for four years
from Jan. !, 1897, If the court should so long
continue in existence, or for shortened
term, if the court should be sooner abol-
ished, either by new legislation or by per-
hitting the court to go out of existence by
virtue of the limit already established in the
act of Feb. IS, 1891.
Under the Constitution of Indiana all
legislative authority is vested in the Gen
eral Assembly, and that body, within the
sphere of its authority. is absolute, supreme
whatever, except those expressly or by
necessary implication imposed by the State
or the federal constitutions and statutes,
or treaties made in pursuance thereof. The
Legislature has. therefore, absolute author
ity to pass any and all laws it may deem
proper to pass and the courts will not in
terfere with such legislation, and declare
tho law, or part of a law, unconstitutional
unless in direct conflict with some constitu-
tional provision.
when the duration of an office is not
provided for by the Constitution it may be
declared by law and If not so declared.
such Office shall be held during the pleasure
of the authority making the appointment,
but the General Assembly shall not create
any office. the tenure of which shall be
longer than four years. All officers under
the Constitution hold their offices until their
successors are elected and qualified. Sub
ject to these restrictions, the Legislature
has absolute and complete control over the
creation and duration of offices and the
terms of the officers
The arguments on both sides will be made
orally in the Supreme Court this morning,
each side being restricted to one hour