Gemmer v. State, ex rel. bers of the legislature. The power to fix the time for the commencement of the terms of other officers has been exercised by the legislature, without question, from the organization of the State. (5) The office of county treasurer was created by the Constitution, and the term fixed at two years, and until his successor is elected and qualified. The 'Constitution fixes the length of the term of office, but not when it shall commence. (6) It is possible by a legislative act to create a vacancy in a constitutional office by postponing the time for the commencement of a future term of office. Where this has been done, the people have no constitutional right to fill the vacancy by a popular vote at a general election which intervenes prior to the occurrence of the vacancy, but the vacancy must be filled by appointment, as by statute provided under article 6, §9, of the Constitution. (7) The fact that an office is named in the Constitution does not exempt it from legislative control. Excepting such protection as is guaranteed by the Constitution, it is as much subject to regulation by the legislature as is any office created by the General Assembly. *** (9) There is no natural right of suffrage. Voting is a mere political privilege. Except as this privilege is guarded by the Constitution, it may be limited or extended by statute." It may be admitted that the legislative authority is supreme, and subject to no restrictions except those which the Constitution expressly or impliedly imposes; that the time of the commencement of the term of office of the county treasurer and the other officers named in the act of February 11, 1903, is not fixed by the Constitution; and that, subject to the restrictions of the Constitution, the legislature may prescribe the time when the terms of such officers shall begin. It may also be true that offices created by the Constitution are, to some extent, subject to legislative control, and that the right to vote is a political privilege, and not a natural right. But the question remains, what are the limitations and restrictions imposed by the Constitution. Gemmer v. State, ex rel. upon the legislature in the enactment of statutes regulating the election of persons to fill county offices created by the Constitution, the commencement of their official terms, the continuance of officers in office beyond the periods named in the Constitution, and the nature of the legislation, whether. general or local, by which such regulation and control is sought to be exercised. The preamble of a statute may be examined for the purpose of ascertaining the meaning or proper construction of the act, but a recital of the objects to be accomplished, however desirable and meritorious those objects may be, can not cure inherent defects in the act, nor render it valid if in conflict with the organic law of the state. The purpose of the act of February 11, 1903, as stated in its preamble, is to secure uniformity in the commencement of the terms of the officers mentioned in it. Perhaps this may be desirable. Differences of opinion, however, may exist on this subject. Certainly, such uniformity is not indispensable. It has never existed heretofore, although the Constitution has been in force for many years, and the inconveniences arising from such want of uniformity, if there have been inconveniences, do not appear to have seriously interfered with the administration of the public business. It is an obvious truism that Constitutions state general rules and maxims in accordance with which the powers of sovereignty are habitually exercised, rather than particular and specific directions for the manner and occasion of the exercise of that authority. Cooley, Const. Lim. (3d ed.), 2, 64. A declaration in the Constitution of political privileges, rights, or powers to be exercised by the people of the State places them beyond legislative control or interference as effectually as if the instrument, in terms, declared that the people should not be deprived of them by an act of the General Assembly. The necessary implications arising from general provisions of this character are secondary in im Gemmer v. State, ex rel. portance only to the express letter of the Constitution itself. Section 2, article 6, of the Constitution provides that 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, recorder, treasurer, sheriff, coroner, and surveyor; that the clerk, auditor, and recorder shall continue in office four years, and that no person shall be eligible to any of these offices more than eight years in any period of twelve years. It further provides that the treasurer, sheriff, coroner, and surveyor shall continue in office two years, and that no person shall be eligible to the office of treasurer or sheriff more than four years in any period of six years. Section 14, article 2, of the Constitution fixes the time of all general elections on the first Tuesday after the first Monday of November. General elections must take place every two years for the purpose of selecting members of the General Assembly. Constitutional provisions, in most cases, are mandatory in the strictest sense, and the words used must be understood in their natural and ordinary meaning. Gibbons v. Ogden (1821), 9 Wheat. 1, 188, 5 L. Ed. 302. The right of the voters of the State to fill the offices of clerk of the circuit court, auditor, recorder, treasurer, sheriff, coroner, and surveyor at the general election next before the expiration of the term of the persons filling any of these offices is plainly conferred by §2, article 6, supra. The office being constitutional and elective, the voters of the county are authorized to fill it at the first opportunity given under the Constitution. This right can not be taken away from them by the legislature, either directly, or indirectly, by an act postponing the choice of the officers named until a general election at which they might be elected has passed. When the framers of the Constitution and the people who adopted it said in that instrument that "there shall be Gemmer v. State, ex rel. elected in each county by the voters thereof, at the time of holding general elections," the officers named, they could have meant nothing else than that the succession to these offices should be secured, without vacancies or unnecessary extensions of terms by holding over after the expiration of the constitutional terms, by the election by the voters of each county of successors to such officers, who would be ready to take the offices and discharge their duties immediately upon the expiration of the terms of the previous incumbents. The only natural and reasonable time for such selection would be at the general election next preceding the expiration of the term of the incumbent. If the power of the legislature to postpone the choice of the successors to the incumbents of these offices at such election is conceded, it follows that the time for the election of such successors rests wholly in the discretion of the General Assembly. If this is the law, the control of the offices affected is taken from the people and resides exclusively in the legislature. The act in question is subject to the further objection that it expressly extends the terms of office of county treasurers in many counties beyond the constitutional limit of two years, and in the case before us, as well as in several other instances, continues the treasurer in office more than four years in a period of six years. The proviso in the act declares, among other things, that, "in all cases where persons were elected to any of said offices at the general election in November, 1902, for a term of two years, whose terms of office did not begin until after January 1, 1903, no successors to such officers shall be elected until the general election in the year 1906." Acts 1903, p. 24. It appears from the complaint that Fleming, the present incumbent of the office of county treasurer of Warren county, was elected to that office at the general election held in November, 1902, and that his term of office did not begin until January 1, 1904. That term will expire January 1, VOL. 163-11 Gemmer v. State, ex rel. 1906. If no successor to Fleming is elected until the general election to be held in November, 1906, then by virtue of the act of 1903 he will continue in office from the expiration of his term on January 1, 1906, until January 1, 1907. The purpose and legal effect of the act of February 11, 1903, if valid, was to continue the persons to whom it applied in office after the expiration of the terms fixed by the Constitution, and beyond the time at which said offices might be filled by the voters of the counties at a general election. It is true that the legislature, under certain conditions, may fix the time of the commencement of the terms of county officers, and this court so held in the cases of Scott v. State, ex rel. (1898), 151 Ind. 556, and Weaver v. State, ex rel. (1899), 152 Ind. 479. But the act of February 11, 1903, does much more than fix the date of the commencement of terms of office. It attempts to prevent the election of successors to incumbents, although elections occur at which such successors might be elected by the voters of the several counties. The unnecessary continuance in office of the persons embraced in the act beyond the limit of the terms fixed by the Constitution is a direct and unmistakable violation of that instrument. The argument that the legislature may fix the time of the commencement of the terms of office, where that time is not fixed by the Constitution itself, and that if the term of an incumbent is extended beyond the constitutional limit, the officer holds over by virtue of $3, article 15, of the Constitution, which provides that an officer shall hold his office for the constitutional term, and until his successor is elected and qualified, is fallacious. The latter provision was intended to prevent vacancies in the public offices to which it applies. It can not be understood to confer on the legislature the power to postpone unnecessarily the election of a successor to the office, and thereby create a condition authorizing the incumbent to hold over after the expiration of his term. The mischiefs |