DocketNumber： No. 29,787
Citation Numbers： 239 Ind. 472, 158 N.E.2d 264, 1959 Ind. LEXIS 187
Judges： Achor, Arterburn, Bobbitt, Jackson, Landis
Filed Date： 5/1/1959
Status： Precedential
Modified Date： 10/18/2024
This is an original action asking for a writ of prohibition and mandate. It involves a dispute over the office of the Clerk of the Marion Circuit Court. The facts appear to be as follows:
“ . . . McClure shall perform the duties of the Clerk of the Circuit Court in all its functions as at least a de facto officer.”
On the same day, but thereafter however, the two members of the Board of Commissioners, namely, Durham and Virt, purported to appoint Louise Gasper as Clerk of the Marion Circuit Court, and she thereupon filed an action in quo warranto in the Marion Superior Court Room No. 1, Walter M. Bell, Jr., Judge. As part of the relief in such action the respondent Judge issued without notice an order restraining the relator McClure “from entering said office and pretending to perform or performing any of the duties thereof, . , .” It is apparent that this order is in direct
On April 10th the relator herein filed his petition for a writ of mandate and prohibition directed against the Marion Superior Court Room No. 1, respondent herein. We issued a temporary writ.
There is in this case without question a conflict of assumed jurisdiction between two courts of equal and coordinate powers. It is well settled in such instances that the first court assuming such jurisdiction has such jurisdiction, to the exclusion of any other equal or coordinate court. State etc. v. Marion Cir. Ct. etc. (1959), 239 Ind. 327, 157 N. E. 2d 481. State ex rel. Montgomery v. Sup. Ct. etc. (1958), 238 Ind. 664, 154 N. E. 2d 375, 376; State ex rel. Seal v. Superior Court of Knox County (1943), 221 Ind. 36, 41, 46 N. E. 2d 226.
The Supreme Court of this State has imposed upon it by statute the duty of determining a dispute or conflict in jurisdiction between lower courts. Burns’ Annotated Statutes §3-2201, 1946 Replacement (Supplement).
Both parties to this action insist that the real controversy here is: Who has the authority to fill a vacancy in the office of clerk of the circuit court— the Governor of the State of Indiana or the Board of County Commissioners? The parties have asked this court to make a final disposition of this controversy on the plea that they have no adequate remedy at law and that the public welfare requires a speedy determination of the issue in view of the approaching primary election and in order that the judicial processes not be hampered.
In 1951 the Hon. Henry F. Schricker, Governor of the State of Indiana, requested an official opinion on the specific question here involved from Hon. J. Emmett McManamon, Attorney General of the State (1951 Attorney General’s Official Opinion No. 104, p. 312). That opinion held that a vacancy in the office of clerk of the circuit court should be filled by the Governor and not “by the Board of County Commissioners.”
Since that opinion is a rather exhaustive review of the law covering the constitutional provisions, we set forth the more pertinent parts thereof:
“OFFICIAL OPINION NO. 104
“November 29, 1951. “Honorable Henry F. Schricker,
Governor,
State of Indiana,
State Capitol,
Indianapolis, Indiana.
“Dear Governor Schricker:
“We have your request for an official opinion which presents the following question:
“ ‘Should there be a vacancy in the office of Clerk of a Circuit Court by death, resignation or otherwise, who has the authority to fill the vacancy thus created?’
“The office of Clerk of the Circuit Court is created by Section 2, Article 6 of the Indiana Constitution, which provides as follows:
“ ‘There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, Auditor, Eecorder, Treasurer, Sheriff, Coroner, and Surveyor. The Clerk, Auditor, and Eecorder, shall continue in office four years; and no person shall be eligible to the office of Clerk, Eecorder, or Auditor, more than eight years in any period of*478 twelve years. The Treasurer, Sheriff, Coroner, and Surveyor, shall continue in office two years; and no person shall be eligible to the office of Treasurer or Sheriff more than four years in any period of six years.’
“Section 49-404 of Burns, 1933, provides:
“ ‘Whenever any vacancy occurs in any circuit or district office commissioned by the governor, he may fiill such vacancy until filled by a qualified successor.’
“Section 49-405 of Burns, 1933, provides:
“ ‘The board of county commissioners shall fill all (other) vacancies in county or township offices, except such township or other offices the vacancies in which are otherwise provided for; and such appointment shall expire when a successor is elected and qualified, who shall be elected at the next general or township election, as the case may be, proper to elect such officers.’
“In the case of Taylor v. State ex rel. (1906), 168 Ind. 294, the court had before it an Act of 1901 which fixed the time when the terms of certain county officers should begin. The act, both in the title and the body, referred to the ‘county clerk.’ The question was whether this applied to the clerk of the circuit court and it was held that it did not. The court said at page 296 :
“ ‘The office in controversy exists in pursuance of a mandate of the Constitution of the State, and its proper name is “clerk of the circuit court.” Const., Art. 6, §2, Bold v. Woods (1894), 9 Ind. App. 657.’
“ ‘In the course of legislation many duties have devolved upon this officer, wholly independent of his relation to the court, and in many instances he has been inaccurately styled “clerk of the county,” and “county clerk.” Correctly speaking no such officer as “county clerk” is known in the law of this State. The present controversy in no way involves legislation upon collateral subjects in which the clerk of the circuit court may be designated or referred to as “county clerk,” and this opinion is not to be*479 construed as intimating that in any such cases the legislative intent may not be sufficiently manifest and validly expressed. The act under consideration (Acts 1901, supra) purported to fix the time when the terms of certain county officers should begin, and the first question arising upon this appeal is, whether that act effectually changed the beginning of the term of the clerk of the Sullivan Circuit Court from March 28,1904, to January 1,1905. . ..’
“The court held ‘that the date of succession to the office of clerk of the Sullivan Circuit Court was not affected by the statute of 1901.’
“It being clear that the officer in question is clerk to the circuit court and an officer of that court, we refer to the nature of the circuit court. Section 1 of Article 7 of the Indiana Constitution provides:
“ ‘The judicial power of the State shall be vested in a Supreme Court, in Circuit Courts and such other courts as the General Assembly may establish.’
“Section 9 of Article 7 provides as follows:
“ ‘The State shall, from time to time, be divided into judicial circuits; and a Judge for each Circuit shall be elected by the voters thereof. He shall reside within the Circuit, and shall hold his office for the term of six years, if he so long behave well.’
“Webster defines ‘circuit’ as ‘A regular or appointed journeying from place to place as in the pursuit of one’s calling, as of a judge, or a preacher.’ ‘Circuit Court’ is defined as ‘A court which [s] its successively in different places in its circuit.’
“The circuit court in the days of the constitution was a true circuit court. The circuit consisted of a large number of counties, usually about ten. Each circuit court consisted of one presiding judge and two associate judges. Rev. St. 1938, p. 161. The judges then moved from county to county within the circuit. Such judges were not county officers, but were officers of a judicial circuit. In the*480 case of State ex rel. Howard v. Johnston (1884), 101 Ind. 223, at page 229, the court said:
“ ‘Under the Constitution a prosecuting attorney is an officer of a judicial circuit.’
“In State ex rel. v. Tucker (1874), 46 Ind. 355, at page 359, it was said:
“ ‘Judges of the circuit court and prosecuting attorneys are not states, county, or township officers.’
“This was quoted with approval in State v. Patterson (1913), 181 Ind. 660, 663.
“It is thus clear that the judge of the circuit court is not a county officer, but is an officer of a judicial circuit. It is also established that the clerk is an officer of the circuit court. All the clerks within a judicial circuit are officers of that circuit court.
“The duties of the clerk of the circuit court, as above pointed out, are for the circuit court. He is a ministerial officer of the judicial department. He performs no functions of government for the county of a political or civil character as such clerk of the court. Even though the Legislature might impose duties upon such clerk in addition to his duties as an officer of the court, they would be in the nature of ex officio duties and would not change the character of his office. The authorities make a distinction between a clerk and a clerk of a court. The latter is a prothonotary to the court.
“It may be argued that the clerk is a county officer because he is elected ‘in the county.’ I do not believe this fact can override the fact that he is an officer of the circuit court. It was contemplated, and the statutes provided at the time of the adoption of the Constitution of 1851, that the judges should hold court in each county. Terms of court were established by counties in the circuit and there was a clerk in each county where the court sat in moving around the circuit.
“A scrutiny of the records will reveal an inconsistency in the procedure in making such appointment. In some instances, appointments have*481 been made by the Governor, and in others by the Board of County Commissioners, but it is our opinion that the only conclusion to be reached, would be that where such appointment was made by the County Commissioners and properly certified to and commissioned by the Governor, that it is the exercise of the alternative by the Governor in the permissive language of Section 49-404, which provides that the Governor ‘may’ make such an appointment, rather than ‘shall’. Consequently, a correct determination would be that in these instances, the Governor has not waived his statutory prerogative but merely concurred in a selection submitted to him.
“For these reasons and under these authorities, I am of the opinion that the clerk of the circuit court is not a county officer, but is an officer of the circuit court and a circuit officer. The clerk of the circuit court, being a circuit officer, and an officer commissioned by the Governor, (Section 49-201 Burns), any vacancy in that office should be filled by appointment by the Governor under the provisions of Section 49-404 of Burns, 1938, rather than by the board of county commissioners under the provisions of Section 49-405 of Burns, 1933.”
The right and duty of the Governor to make such appointments as here in question have become the uniformly accepted practice in this State.1
It is to be noted that the legislature at the next session, in an amendatory Act with reference to its erroneous use of the term “county clerk,” stated:
“WHEREAS, There is no such office or officer known under the Constitution or laws of the State of Indiana as County Clerk;”
and thereupon made a specific provision for the term of office of a clerk of a circuit court separate and distinct from the legislation pertaining to other county offices. Acts of 1908, ch. 19, p. 32.
We therefore have a distinct recognition by the legislature that the office of clerk of the circuit court is not a county office.
The legislature on the contrary has provided:
“Whenever any vacancy occurs in any circuit or district office commissioned by the governor, he may fill such vacancy until filled by a qualified successor.” (Our italics) Burns’ Annotated Statutes §49-404, 1951 Replacement.
With the foregoing precedents before us we have no alternative but to hold that the clerk of the circuit court is not a county officer but rather a circuit officer, and that the appointive power to fill vacancies therein resides in the Governor of this State. To hold otherwise would reverse longstanding precedent in this State, observed by the legislative and executive divisions of the government, as well as the judicial.
The respondent calls our attention to the Journal of the Indiana Constitutional Convention of 1850, in which a discussion is recorded as to the method of filling a vacancy in the office of clerk of the circuit court. With reference to that rather extensive discussion in the respondent’s brief, we need only point out that a proposal to have such a vacancy filled by the board of county commissioners was abandoned by the Convention. Nothing, so far as we can find, resulted from the discussion and therefore it is of no value on the point here involved.
The record shows in this case that the relator McClure was appointed and assumed the duties of the office of Clerk of the Marion Circuit Court on a de facto
Judge Fansler, speaking for this court in State ex rel. McGovern et al. v. Gilkison, Judge (1935), 208 Ind. 416, 423, 196 N. E. 231, makes the following statement:
“While authorities may be found which hold that equity has jurisdiction to issue restraining orders and injunctions to maintain the status quo, none have come to our attention which sustain the right to change the status of the parties pending a determination of the controversy concerning the right to the office or the possession of the indicia of office upon the merits.”
There is neither a de facto nor a de jure basis for the issuance of the restraining order or injunction against the relator, Edwin McClure, who acts under the commission and appointment of the Governor of the State of Indiana as Clerk of the Marion Circuit Court.
The alternative writ heretofore issued is made absolute and permanent. In view of the public emergency, the Clerk of this Court is directed to certify this opinion forthwith to the respondent court below.
. Appointments made during the last ten years by the Governor to fill vacancies in office of clerk of circuit court.
APPOINTEE COUNTY DATE
Samuel Hinshaw (S) Randolph 1/17/49
Dorothy Allison (S) Fayette 2/10/50
Robert Harvey (S) Henry 12/31/50
Burnes Resenbeck (S) Pike 2/14/51
Owen Dillon (S) Owen 2/16/51
Dohrman Brotherton (S) Jay 1/7/52
Harry Washmuth (C) Switzerland 12/4/53
Paul Jones (C) Tipton 6/14/54
Clifford Johnston (C) Decatur 12/22/54
John Shank (C) Pulaski 3/2/55
John Stellma (C) LaPorte 12/31/56
Albert Hones (H) Posey 1/30/57
Grace Jobe (H) Jefferson 7/15/57
Herbert Donald (H) Vermillion 10/10/57
Pauline Heistend (H) Vermillion 2/19/59
Denotes appointment made pursuant to Opinion of Attorney General 11/29/51.
(S) Appointment by Governor Henry F. Schricker
(C) Appointment by Governor George N. Craig
(H) Appointment by Governor Harold Handley
. The same is true of judges of the circuit court, as well as prosecuting attorneys. The State ex rel. Pitman v. Tucker (1874), 46 Ind. 355, 359; State v. Patterson (1914), 181 Ind. 660, 105 N. E. 228.