INDIANAPOLIS BREWING COMPANY V. CLAYPOOL. Supreme Court of Indiana. December, 1897. MCCABE, C. J. The legislature of 1895 passed an act approved March 1, 1895, entitled "An act to establish a department of public parks in cities having more than one hundred thousand population, according to the last preceding United States census, and a board of park commissioners, defining the powers and duties of such board and matters connected therewith, and declaring an emergency." Sections 7240-7261 Horner's R. S. 1897, (Acts 1895, p. 63). The appellant brought suit against the appellees, who are the acting members of said board, and certain other officers appointed by the circuit court at the instance of said board, under the provisions of said act, to enjoin them from further acting by virtue of any authority conferred on them by said act. The circuit court sustained a demurrer to the complaint for want of sufficient facts; and, the plaintiff refusing to plead further or amend its complaint, the court rendered judgment that the plaintiff take nothing by its suit. That ruling is called in question by the assignment of errors as the only error complained of by the appellant. The ground on which the complaint seeks an injunction is that the act is unconstitutional. But a much more serious question is presented by appellant's contention that the act violates the last clause of section two of article fifteen of our state constitution (section 224, Burns' R. S. 1894; 224, R. S. 1881), providing that "the General Assembly shall not create any office the tenure of which shall be longer than four years.' The facts are disclosed in the complaint that in the spring of 1895, soon after the passage of the act in question the mayor of Indianapolis appointed five park commissioners to serve one, two, three, four, and five years, respectively, from January 1, 1895. That made the term of the one-year commissioner expire on January 1, 1896, and his successor then appointed and now in office, under the provisions of section two of the act, under a term of five years, running till January 1, 1901. The term of the two-year commissioner appointed in 1895 expired January 1, 1897, when he was reappointed as his own successor, and is now in office, the term of which, under section two of the act, and his reappointment, is five years, expiring January 1, 1902. And the term of the fiveyear commissioner appointed in 1895, and now in office expires, January 1, 1900, making according to the allegations of the complaint, three of the defendants in office under a five-year term or tenure, by virtue of section two of the act. Appellees' contention that four of the members appointed in 1895 hold four-year terms, and therefore are and always had been a legal board under section six, making a majority a quorum authorized to do binding acts, is contrary to the facts alleged in the complaint, even if that fact, would constitute such majority a legal board. It is next contended that section two is valid because the constitutional inhibition only operates to limit the terms of the several park commissioners to four years, respectively. It is tacitly conceded that, if the restriction cannot be obviated in this way, section two must fall, as a palpable violation of the constitution. This ground of upholding that part of the section other than the tenure clause is based on the familiar principle in constitutional law that a statute may be good in part, and in part void, because unconstitutional. That part fixing the term at five years, it is in effect insisted, may be declared void, and the balance of the section stand. To support this contention, counsel quote from Clem. v. State, [33 Ind. 526,] as follows: "The question is as to the application of this restriction. Does it in the case in hand render the creation of the office a void act? .. But we are of opinion that the restriction cannot be held to apply where, as in this case, no tenure is stated. The preceding part of the section provides, that 'when the duration of any office is not provided for by this constitution it may be declared by law; and, if not so declared, such office shall be held during the pleasure of the authority making the appointment.' This language seems to be conclusive in support of the position that an office may be created by law though its duration be not fixed, as in this case. If fixed at a longer term than four years by the act creating it, there would then be a question whether the creation of the office was not void, or whether valid, but its tenure limited to four years by force of the constitution."' This is as much, if not more, against appellees' contention than for it. It not only suggests the query whether the question raised by their contention should be decided for or against them but it furnishes a basis for reasoning out the question against appellees. It is to be observed that it is not the tenure of more than four years that is prohibited, but it is the creation of an office, the tenure of which shall be longer than four years. The forbidden act is the creation of the office of the particular description given as much as the inhibition of more than four years' tenure. It would seem, therefore, that it is the creation of the office that is void, as much, if not more, than the act of affixing a tenure of more than four years. If the language were: "No office created by the legislature shall have a longer tenure than four years," we should have a very different question to decide. Our attention has been called to a decision of the supreme court of Kansas upon a constitutional provision precisely like our own, wherein it is claimed a different conclusion was reached by that court. Lewis v. Lewelling, 53 Kan. 201, 36 Pac. 351. The report of the case is so meagre that it is not easy to understand the reason, if there was any reason, for the conclusion indicated. The only reason assigned for the conclusion reached is the decision of the supreme court of California cited. The whole of what the supreme court of Kansas said upon that branch of the case is as follows: "The provision in section four permitting officers to be commissioned for a term of five years is violative of section two, article fifteen, forbidding the legislature to create any office the tenure of which is longer than four years. Military officers are within the provisions of the constitution. Where the statute fixes a term of office at such a length of time that it is unconstitutional the tenure thereof is not declared, and therefore the office is held during the pleasure of the appointing power. People v. Perry, 79 Cal. 105, 21 Pac. 423." No reason is assigned by the Kansas supreme court why the constitutional inhibition forbidding the Kansas legislature to create any office of a certain tenure did not render the forbidden act void. The forbidden act there as here was the creation of the office in plain language of unmistakable meaning. As the Kansas supreme court gave no reason why such language should not be given its full force and meaning, except to cite the California case, we must assume that the reasoning in that case is the only reason on which the Kansas court reached its conclusion. But, when we examine the case, we find that it furnished no reason whatever for the Kansas decision, on account of the radical difference in the constitutional provisions of California and Kansas. The provision as it stood in both the old and new constitution of California received the consideration of the California supreme court in that case. That in the old reads as thus: "Nor shall the duration of any office not fixed by the constitution ever exceed four years;" and in the new constitution it was: "But in no case shall such term exceed four years." This language in no way forbids the creation of the office with a tenure exceeding four years, but simply limits the tenure of all offices created by the legislature to four years. This language fully justifies the conclusions reached by the California supreme court. But it furnished no reason whatever for the decision of the Kansas supreme court, under a constitution, as ours, forbidding the creation of the office with a tenure exceeding four years. If the act was forbidden then, it was, in so far as it created the office, in violation of the constitution. It therefore appears that the Kansas decision is in plain violation of the constitution of that state, and rests on no reason whatever. Such a decision we ought not and cannot follow. It would seem to follow that so much of sections one and two of said act as creates the office of park commissioner with a tenure of five years is in violation of the constitution, and void. All the balance of the act is inoperative, for the sole reason that there are no instrumentalities left with which to carry them into operation and effect. It results that the defendants are doing acts affecting the plaintiff's rights that they have no authority of law to do, because there is no such office the duties of which they claim to be exercising. Hence, the complaint stated a good cause of action, and the circuit court erred in sustaining a demurrer thereto. The judgment is reversed, with instructions to overrule the demurrer, and for further proceedings not inconsistent with this opinion. MONKS, J., dissenting. KOCH V. MAYOR, ETC. Court of Appeals of New York. March, 1897, VANN, J. On the 10th of May, 1895, the legislature of the state enacted that: "From and after midnight of the thirtieth day of June, 1895, the office of police justice in the city and county of New York is abolished, and all power, authority, duties and jurisdiction then vested in the police justices in the said city and county of New York, and in the courts held by them, including the Court of Special Sessions, and in the board of police justices, and in the clerks, deputy clerks and police clerks' assistants, and in all other officers and employees of said justices or courts, or of the board of police justices, shall cease and determine." L. 1895, ch. 601, § 1. The main question presented for decision by this appeal is, whether that section is in violation of the constitution of the state. The provision that he relies upon to nullify the legislation in question is section 22 of article VI., which is as follows: "Justices of the peace, and other local judicial officers, provided for in sections seventeen and eighteen, in office when this article takes effect, shall hold their offices until the expiration of their respective terms." I think that section twenty-two was intended to operate as a saving clause, and that it has no other effect. This left the legislature with untrammeled power to repeal the act creating the offices in question and to re-organize the local courts of criminal jurisdiction in the city of New York upon the new basis that it adopted. While we are all of one mind as to the power of the legislature to pass the act under review, we differ as to the meaning of section twenty-two of article six. The views of some members of the court upon the question have already been expressed. Others are of the opinion that the intention of the constitution was to retain the police justices in office for their respective terms until, by the lapse of time, death or otherwise, outside of legislation, their terms should expire; that, if there had been no abolition of the court, this legislation could not be sustained; that it would not have been competent for the legislature to declare that the offices of these justices should terminate and be vacant and to provide for the election of others in their places during the periods for which they were appointed; that, however, there was no intention to take away from the legislature the right of abrogating the court, and that the abrogation of the court carried with it as a necessary and inseparable incident the termination of the official life of the several incumbents of the office; that as the new court differs in its organization and jurisdiction from the old we have no power to say that the abolition of the court was a scheme to turn these men out of office, or to speculate on the reasons which induced the legisla |