The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-10-15

TeTdTOTS, 0OTIlIIeCS LTfeV
this office, have common interest in the
decision Of the question. They ask only
that the court answer the question by say
ing yes or no, and in this answer they all
have q common interest.
TERMS OF THE JUDGES.
Under authority of Section / of the Con-
s$itution, which provides that ''the judicial
power of the State shall be vested in SUI
preme Court, in circuit courts, and in such
other courts as the General Assembly may
establish" the Legislature, by an act APP
proved Feb. %, 1891, created the Appellate
Court. Acts 1891. 80; r. s. 1894. Section 1886
Horner's r.. S. 1897 Section $685., ct seq. 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, Ito
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 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
|. 1891. BY an act approved March 4. 1898,
elected fixed at four years from the
first day of January, 1893. 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 the first day of January
1897 while the period of the existence of
the court was to end on the first day of
March, 1897.
1t is contended by the REALTORS that as
the judges elected at the general election of
1856 were to take their office on the LIST
day OF January thereafter and as the court
itself was to end on the LIST day of March
following, 1t therefore results that those
judges were elected to serve for two months
onlyy@that is, from Jan. l, 1897, to March
!, 1897. Appellees, on the other hand, con-
"a nc he Ia Exyad he nf Of
f1ce of the judges at four years from the
LIST day of January following their election
IL must result eae that me Judges elected IN NO
years from Jan l, 1897
COULDN'T ELECT CONDITIONALLY.
1t would seem that the contention of the
REALTORS must be correct The general cleo
ton 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 LIST
day of January thereafter, while the term
of the court itself would expire on the LIST
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. 1t would
be absurd to say that the electors would or
could choose judges to serve for time after
March /, 1897, when there would be no court
in existence; as provided by law. The people
could not elect judges conditionally on the
supposition that the Legislature might aft
erward extend the life of the court. 1t
would be quite as reasonable to say that
the people could elect judges for court
that had not yet been created, on the sup
position that the court might thereafter be
force at the time of the election to know
the effect of an election then held. The
people GO, conduct an election by, by means Of ex-
ly existed or that may thereafter exist. 1T
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 term of their prede-
of the court itself-that Is from Jan. l, 1897,
to March l. 1897. Afterward, by an act APP
proved Jan. Is, 1897. Section rs of the act
Of 1891, which limited the life of the. court to
the period of six years from March l. 1891,
was repealed, and the period of the exist
enee Of TT. the court was Was extended for four
last act reads as follows: THAT the term
of office of each of the judges of said APP
pellate Court shall be -four. years from the
1st day of January next after his election.
and 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 dur
day of January: 1897" If by this re-enact-
the terms of the judges already elected,
which would be the equivalent OF appoint
ing them 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
for the formal re-enactment of the provi-
sions originally embraced in the statute as
first enacted in 1891. it is to be said that
the re-enactment left the law in this re-
spect just as it had been at the time of
the election Of the present judges in No
vemoer, 1886. BY the second clause of the
section, however, the Legislature attempts
to provide that all of the present judges
of said court shall continue to hold their
offices as such, respectively, for the dis
tficts for which they have been elected for
and during the term of four years from the
LIST day of January 1897.
LEGISLATIVE POWER EXCEEDED.
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 cleo
ton; 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 appointment may be
made by the Governor is not only recog-
nized 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
., Section IL. of that instrument, that when
at any time vacancy shall have occurred
IN the ofnce of judge of any court the
Governor shall fill such vacancy by appoint
ment, which shall expire when a successor
snail nave been elected and qualified" That
the 9 legislature cannot fil the office of
Judge OF any court by it's own appoint
ment, ought to be so evident as not to be
IN any manner contrOverted. If there is one
principle that stands out more clearly in
our Constitution than any other, it is that
the three departments of government, egis-
idlVe, executive and judicial. are not mere
~ equal. but are exclusive in respect to
tie duties assigned to each, that is thew
are absolutely independent of one another
But II the Legislature could appoint or con-
tlnue 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 CON
troll or the legislative department 1t was
held the State VS.. Noble, 11S Indiana 40
tnat the Legislature could not appoint COM
mlSsloners to assist this court in the dis
charge of its duties. Still less could the
legislature appoint the members of a court
itself or continue such members in office for
a period beyond that for which they had
been chosen by the people. We are there
clause of Section of the act in question
by which the General Assembly aftemnted
70 provide that the present judges of the
appellate Court should continue to hold
their offices for any time beyond the time
void 40 "iouy
It seems TO have been attempted nv conn
sci 70 draw from the provisions IF rtirIo
10, Section l, of the Constitution some arm
ment In favor of the power of the Iepisla
lure 70 appoint or what amounts to the
same thing, to extend the terms of i11dgas
or the Appellate Court already given Rnt
u mas been held in numerous cases thai
by other sections of the Constitution 20
Ierred 10. authority Is conferred upon the
L II g to prescribe by law the manner