The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1904-02-04

corder, treasurer, sheriff, coroner and sur
veyOr.'
"These words are so plain that no ques-
and purpose.
1T is said that if the elected incumbent
az the end of four or eight years remains in
the Office doing the business il will be law
fully done, as the incumbent would be
de facto officer. IL that is conceded IL does
not, In my opinion, authorize or Justify the
Legislature in taking from the voters the
right given by the Constitution TO fill con-
stltutonal offices by election when a va
cancy will occur by the Constitution before
the next succeeding election. / think under
the constitution the people have right at
all times, when possible. to have their con-
stitutional officers de jure officers.
POWER TO FILL VACANCIES.
1T is also said that by virtue of some
provisions of the Constitution and other
provisions in existing statutes the Governor
has, or the Board of County Commissioners
have, the power to fill every vacancy in
judicial or county offices. This is true; but
that Is not the question here. The question
here is, can a vacancy occurring in a con-
stitutional office by reason of the termina-
ton of the eligibility of the incumbent be
made to continue over and beyond a gen.
eral election to prevent the voters
from Mining it, In my opinion no power is
given the Legislature to do this thing.
mus Tar have only considered the
question arising when the present incum-
Dents nave held four or eight years, as the
case too may be, prior to the general election
III 1910. ana, as IN my opinion the law is
unconstitutional in that respect the whole
law rails, as ii Is all contained in one sec
ton and largely in one sentence. In such
cases the court cannot strike out the I'M
constitutional words and maintain and en-
force the remainder. Nevertheless ii seems
70 me that If a vacancy occurs in an office
nxed by the Constitution prior to the gen.
eral election In 1906 that the voters have
a right to fill it in 1904, even If the occupant
mas not held two consecutive terms. The
reason Is the same: The right OF and the
duty imposed upon the voters to elect at
the time of holding general elections a
clerk, auditor. recorder treasurer, sheriff,
coroner and surveyors is the same, whether
the present incumbents are serving in their
first or second terms.
1T seems to be thought by some that the
point under consideration has been decided
otherwise. L now proceed to state just what
is decided. The Legislature in 1897 passed
an act reading follows:
" Be 1t enacted, etc, That the term of
county treasurer shall begin on the first
day OF January next following the term of
the present incumbent (Acts 1897; Page
treasurer under this law would have TO
be elected every two years. The Supreme
Court has held this yet valid. The act does
not assume to % lmgthen or shorten the
term, nor 81 could il happen so as to post
pone an election over one or more general
elections. AS the question of postponing
NlCShOu COulu iiOt ARISE IL COulu not De
decided. (See Scott VS.. Gibbs 151 Ind, sec,
and Weaver VS.. Sims, 152 Ind. 479)
IF some lawyers do not concur i'm my
views, at least it must be conceded that the
contrary view is not free from doubt In
that case all must agree that it is better
that the conventions make nominations for
the election this year 1t is easy after some
nomination is made to frame a case and
have 1t decided by the Supreme Court be-
fore the summer vacation. if thought neces-
sary. l recognize that it would be whole
nm no
day; but under my views il cannot be fully
carried out under the Constitution"