The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-10-15
THE DISSENTING ONE.
1t Insists ON Legislatures Right to
Extend the Term.

Extend the Term.
AS was the case in the dissenting opinion
written by Judge Jordan, the majority pa
per was filled with judicial precedents up
holding the opinions set forth in the docu-
ment The dissenting opinion, however
was the shorter of the two and was as fol-
lows:
Il am constrained to dissent from the
conclusion reached by the majority of the
court in this case, and will briefly as posi-
BILE and without elaboration state my rea-
sons for dissenting. 1t is conceded. if l
relators-and at least it cannot be success
fully denied-that in the absence of
provision limiting the life of the Appellate
Court in the statute creating it, It's exist
ence would not have been perpetuated, SUBJ
Ject only to the legislative change, and I'M
der such circumstances the tenure of the
present judges, in accordance with the pro-
visions of the same statute which fixed the
term of office and the beginning thereof,
would have been four years from, Jan. l,
1897, that the incumbent judges, under their
election in 1896 would have held for n term
of four years from the same date bad the
legislature of 1895 repealed the limitation
clause of the original act and prolonged the
life of the court to Jan. l. 1901, as was
done by the legislature Of 1897, in the light
of well-Settled principles cannot be sue
cessfully controverted. The inquiry then is,
if this would have been the effect and
operation of change in the law made by
the legislature made prior to the election
of the present judges, why must different
result follow because the limitation clause
in question was repealed and the life Of the
court continued or prolonged under the act
of 1897, which was passed and enforced
month or more before the date upon which
the existance of the court was to terminate
as originally provided?
THAT a legislature, in the absence of
constitutional prohibition. may repeal. mod
ify amend statutes enacted by itself or
predecessors is elementary. 1t is settled
beyond controversy that when a section of
an existing law is amended or changed it
m CT a pA
supersedeS such original section and be-
comes incorporated in and constitutes
part of the original act Applying this
well-settled rule. ii becomes evident that
when the Legislature of 1897 exercised the
right to repeal the limitation section of the
original act. and to change the time of the
courts expiration from March 1. 1897, to
Jan. L. 1901, all of which legislation, as 1t
will be seen, occurred and was in full force
and effect before the life of the court had
terminated, the law. stood precisely as
though the Legislature had in the first in
stance declared that the courts existence
should end on Jan. l. 1901, and certalnly
under such circumstances, in view of the
facts in the case, no successor to the pres
ent judges could be elected at the ensuing
November election. The fact that the in
cumbents had been elected and indicted
into office prior to the passage and taking
effect of the act of 1897 can make nc ma
terial difference in regard TO their status,
for when the change made by the last en-
actment was construed with the provisions
of the original act, which fixed the tenure
of office for four years, and each provIstn
is given it's full force and effect, it must
follow that the present judges wouiu hClu
for full term of four years, prnVlced the
life of the court were prolonged tor tnat
period by legislative action.
But the claim or contention Is tnat tne
incumbent Judges were only elected by the
people for a term OF two months. haEinnlhg
Jan. !. 1897, and ending on the Trs 81 uay % OF
March following. at which date the exist
enre If which court was to terminate ana
at that time it is contended their onicial
functions ceased by virtue o. tne lmltdtcn
ale o~1s n IEElE-
lat,Ire ir controversy. which repealed the
tenure clause of the court and expressly
extended the life of the ourI, aud which
ACT as heretofore said. was in full force and
effect ct and prior to the Cate originally
fixed for the expiration OF the life q the
court Counsel for the realtors seemingly
messed their argument to the extreme of
insisting that vacancies in the offices Of the
appellate judges occurred on and after
March / 1897 and that the operation of the
act in DISPUTE authorized the Governor to
FIJI such vacancies by appointm INT until the
next general election or In other words.
amendatory laws bv which the life Of the
court was prolonged was equivalent to the
creation of a new office This argument is
certainly strange and can find no support
neither in reason nor law.
TENURE AND TERN.
Counsel apparently confUses or confounds
the tenure of the tribunal with the term of
it's Judges. The legislation of 1897 was not
aimed at the term of the office, but was di-
rected at and affected the tenure Of the
court and this distinction should be OBJ
served IT in no manner changed or af-
fected the provisions contained in the act of
1891 and the amendatory act of 1898. where
by the Legislature expressly declares that
the terms of each of the judges of the APP
pellate Court shall be four years from the
first of January after their election. IL is
this legislative fiat expressed In THESE
previous laws which operates to make the
tenure of the present judges four years from
Jan. /, 1897 in the event that the court was
so long continued by the authority of the
Legislature, and not the provisions OF the
act of 1897. which expressly declares that
the life of the court should be prolonged
for four years from Jan. /. 1897. Neither
can IL be maintained that the right of the
present Judges to continue In office for four
years must rest solely on the provisions
contained in Section of the act of 1897.
upon which REALTORS place so much stress