The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1904-02-04
A. c. HARRIS HOLDS LAW
TO BE UNCONSTITUTIONAL
Termsiof County and Judicial Of
fcers Cannot BE Extended
by Legislature.
ADVICE TO COMMITTEE
Chairman Goodrich VIII Instruct
County Organizations to Ig-
more the Law.


the Republican state committee. has pre-
pared an opinion on the cOnstitutiOnality OF
the law passed by the Legislature of 1903
extending the terms Of certain county and
judicial offices so that the terms of all such
Offices shall begin upon the same day and
uniformity thereby be secured.
Mr.. Harris holds the law TO be unconsti-
tutional and suggests that in all counties
the nominations be made as usual this year.
The law affects different offices in different
counties. In Marion county it gives the
country treasurer, o. p. Ensley. extern
sion of one year. and gives Judges McNIas-
ter and Carter similar but shorter extern
sions.
Acting upon the advice of Mr. Harris, the
Republican state committee will instruct the
county organizations throughout the State
to make nominations this year would
have been done had the law not been passed.
A friendly suit to test the law will then be
instituted. and the case will be carried to
the Supreme Court for a final decision at
the earliest possible moment.
Mr. Harriss opinion in full is as follows:
1.-The question submitted to me is whether
the act OF 1903 postponing the election of
certain county officers and others is con-
stitutionaL (Acts of 1903. Page 24)
THE act provides in substance that there
shall be no election in 1904 for county Off
GERS and certain other officers whose terms
of Office will expire before the general cleo
tions in the years 1904, 1906. 1908 and 1870 If
the act is void as to the election of 1904 1t
IS void as 10 the remaining elections; so
that it will be sufficient TO inquire whether
II Is invalid as TO the election OF 1904 III the
act Ks invalid as 10 county officers IL Is ike
wise invalid to judicial officers And If
IL Is invalid as 70 some the act must ran
altogether, for If void in part the act must
fail IN toto.
INQUIRY LIMITED.
'T will therefore limit the inquiry TO
county officers holding their second four
year terms beginning after Jan. 1, 1901; and
county officers holding their second two
year terms beginning after Jan. 1, 1903. The
act provides that IN ell cases where per-
sons We're elected to any of said offices at a
general election in November, 1900, for
term Of four years. whose terms of office
did not begin until after Jan. 1, 1901; and in
all cases where persons were elected to any
of said offices at the general election in No
vember 1862. for a term of two years, whose
terms of Office did not begin until after Jan
!. 1903; no successors TO such officers shall
be elected until the general election in the
Has the Legislature power to prohibit the
voters from electing constitutional county
officers where the second terms OF the in
cumbents. whether for four or eight years,
will expire before the general election In
1867 The Constitution contains several pro-
visions touching the subject of elections.
Those believed to be controlling are as fol-
i. All general elections shall be held on
the first Tuesday after the first Monday in
November Article 2, Section a.
80. There shall be elected in each county
by the voters thereof at the time OF holding
the general election clerk of the Circuit
Court auditor, recorder treasurer sheriff
coroner and surveyor Article g. Section g.
Whenever it is provided in this Consti-
tuition or any law that an officer
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 Article Is, Section g.
81. The Constitution fixes the terms of
auditors, clerks and recorders at four years,
and sheritfs and treasurers at two years.
% No person shall be eligible to the office
or Clerk recorder or auditor more than eight
years in any period Of twelve years. Nor to
the office OF treasurer or sheriff more than
four yeers IN any period OF six years. Arti-
Gle s, Section 2.
1T IS settled that the Legislature cannot
shorten or lengthen the term Of an office
when the length of the term is fixed by the
Constitution (Howard VS.. The State 10
49, .
Under the fifth clause of the Constitu-
ton. as set forth above (Sec. q Art g., the
Supreme Court has settled the law to be:
mat when an elected county officer. limited
10 four or eight years, has served two full
terms consecutively. his right to hold the
once instantly expires, and he cannot hold
on under the fourth clause above (Sec g.
Art lo-) In Gosman VS.. State. LOG Indiana
209. the court said:
Tt cslnnot be supposed that the provi-
sion regulating the tenure of the office
tmeaning Sec 8. Art. 80. was intended to
affect In any degree the other provisions
which re ate TO eligibility TO hold the office
m ~ z 49,
ability 20 continue in the Office of clerk for
longer period than eight consecutive
years,
term eligible as there used relates to the
capability OF holding. Carson VS. McPhet-
ridge. 10 Indiana, S27; Smith VS.. Moore 80
1.-The court added: When the appellants
second term expired he had been in the
ofhce eight consecutive years. The con-
stitutional disability then attached to him
and he was disqualified from holding AS
there was no person qualified to hold the
term for which Green had been elected, it
1T may be observed that the rule is
diuerent as 10 unconstitutional offices:
that Is offices created by statute only
Estate VS. Bogard, lbs Indiana. 1901
CONSTITUTIONAL VACANCY.
81 am told there are cases in this State
where clerks, auditors and recorders now in
Office by election will have held eight years
consecutsvely before the general election In
1906, and likewise treasurers and sherifrs
now in Office by election who will have held
four years consecutively before the general
election in 1906.
In every such case there will be a con-
stitutional vacancy from the end of the
four or eight years of continuous holding
until Jan l. 1907. under the act of 1903 And
unless the Legislature has power TO prevent
the voters from electing successors to such
officers in 1904. it follows, without more.
that said act is void. Has the Legislature
such power! Can the Legislature say To the
voters or the several counties where such
vacancies will occur, You shall not vote
for candidates of your choice or FIJI these
vacancies as they come. but such vacancies
shall remain open and 20 be filled bv an
pointment until the general election i'm 1890
The clause OF the Constitution There SHAH
be elected in each county by the voters
thereof at the time OF holding the general
election a clerk, auditor recorder treas
urer, shertn, etc. means and has always
been understood by the people TO mean
when there Is vacancy. or will be n va
cancy before another general election the
officer must be elected at the present cleo
ton.
1T is evident if voter has constitutional
right 70 vote fOr candidates for constitu-
tiOnal oflces at the general election in 1904
that the Legislature cannot destroy or nre
vent that right The right OF the voter to
vote FOR candidates for public office fs the
FIRST right OF citizenship. and cannot he
withheld. altered or destroyed The rfgbt
given by the COusfftuffOn ie eocr.4