Barkwell v. The State on the relation of Robinson, 4 Ind. 179

Perkins, J. At the September term, 1851, of the Vanderburgh Circuit Court, the following information, in the nature of a writ of quo warranto, was filed in said Court: “ Andrew L. Robinson, prosecuting attorney for the fourth judicial Circuit of the state of Indiana, who, for the state of Indiana, on his own relation, prosecutes in this behalf, comes into Court in his own proper person, and, for the said state of Indiana, on the relation of the said prosecuting attorney, gives the Court here to understand and be informed that Herman G. Barkwell, heretofore, to-wit, on the 1st-day of September, A.

D. 1851, wrongfully and unlawfully did usurp and intrude into the office of prosecuting attorney for the said circuit in the state aforesaid, and from the day and year aforesaid until the present time, unlawfully and wrongfully did then and there hold the said office of prosecuting attorney, he the said Barkwell then and there not being duly elected to the said office, nor entitled to hold or exercise the same; to the great prejudice, damage, and injury of the said Andrew L.

Robinson, who, of right, holds the said office, and who alone is entitled to exercise the same according to law; and to the damage of the state of Indiana. “Wherefore the said prosecuting attorney, who, for the said state of Indiana, on his own relation, prosecutes, prays the consideration of the Court here in the premises, and that due process of law may be awarded Against the said Herman G. Barkwell in this behalf, to compel him to answer to the said state of Indiana by what authority he claims to usurp, hold, and exercise the office aforesaid. A. L. Robinson.” Barkwell pleaded as follows: “ Herman G.

Barkwell, the defendant herein, comes into Court, and, having heard the information read to him, for plea thereto says, that the said state of Indiana ought not further to prosecute her said information herein against him, because he says he was elected prosecuting attorney in and for the fourth judicial circuit of the state of Indiana, at the last general election, held on the first Monday of August, 1851; and that he was duly commissioned by the governor of the state of Indiana as such prosecuting attorney, on the 1st day of September, 1851, for the term of two years from said date, and until his successor should be elected and qualified; and that on the 8th day of September, 1851, he presented his commission in open court, in the Posey Circuit Court, in said circuit, and gave bond as prescribed by law, to the acceptance of the president judge of the said fourth judicial circuit, and took the oath of office as such prosecuting attorney, in conformity with the provisions of law, which oath was then and there by said president judge indorsed on the back of said commission; and that he, said defendant, then and there, under the direction and by the order of said Court, entered on the discharge of his duties as such prosecuting attorney, and continued in the discharge thereof up to the time of filing the information herein by said Andrew L.

Robinson, attorney and relator for the state; all of which the said defendant is ready to verify; wherefore he "prays judgment, and that by the Court here sffid information may be dismissed, and said defendant permitted to proceed in the discharge of his duties as such prosecuting attorney, &c. II. G.

Barkwell.” To this plea the plaintiff replied as follows: “ And the said plaintiff, for replication to the said plea of the said defendant, says that the plaintiff ought not to be barred or precluded from having, prosecuting, or maintaining her said information against the said defendant by reason of anything in the said plea alleged, because the said plaintiff says that the said Andrew L. Robinson was elected prosecuting attorney of and for the fourth judicial circuit of the state of Indiana at the general election held on the first Monday of August, A.

D. 1849, and, in pursuance of said election, the said Robinson was, on the 23d day of August, A. D. 1849, duly commissioned by the governor of the state of Indiana, as such prosecuting attorney, for the term of three years from the day and year last aforesaid, and until his successor should be elected and qualified; and afterwards, to-wit, on the 1st day of September, A. D. 1849, the said Andrew L.

Robinson presented his commission to the president judge of the said fourth judicial circuit, and at the same time presented to the said judge an official bond, executed by the said Robinson arid his sureties, and conditioned according to the requirements of the statutes in such case made and provided; and the said judge thereupon, on the day and year last aforesaid, accepted and approved of said bond and security, and administered to said Robinson the oath of office as such prosecuting attorney, as required by the constitution of the state and the statutes in such case made and provided, which oath was then and there by said president judge, indorsed on the back of said commission, and thereby the said Robinson then and there became and was the duly elected, commissioned and qualified prosecuting attorney of and for the said fourth judicial circuit for the said term of three years, which time has not yet expired or elapsed; and the said plaintiff further avers that the said Robinson has never, at any time, resigned or vacated his said office, nor has he, in any way, been removed therefrom; all of which the said plaintiff is ready to verify, &c.; wherefore he prays judgment, &c.

A. L. Robinson.” To this replication the defendant filed a general demurrer, in which the plaintiff joined. The Court overruled the demurrer, held Robinson the rightful prosecuting attorney, and gave judgment of ouster against Bar Jewell, the defendant. In considering this question, it will be necessary to glance at the history of legislation for a few years past, in reference to prosecuting attorneys. By the law of 1831, prosecuting attorneys for the several judicial circuits of the state, were elected by the legislature for three years, and received their salaries from the state treasury.

By the law of 1843, they were elected by the voters of the several judicial circuits for two years, and received their salaries from the state treasury. By the law of 1847, a prosecuting attorney was to be elected in each county in the state, by the voters thereof, and to hold his office for three years, receiving his compensation by way of docket-fees, without any salary from the state.

In 1849, a local law was passed., enacting that the voters of the fourth and eighth judicial circuits should elect prosecuting attorneys for said circuits, with the exception of the county of Cass, in the fourth circuit, who should hold their offices for three years, receiving no compensation from the state treasury. The election was to take place on the first Monday in August, 1849. Under this law, A. L. Robinson was elected, on the first Monday in August, 1849, prosecuting attorney for three years, for the fourth judicial circuit aforesaid, and was qualified.

His term of office extended, therefore, under said election, to August, 1852.

But, in 1851, on the 14th of February, a law was enacted, repealing the law of 1847 throughout the state, wherever it was in operation, including the county of Cass, in the eighth circuit, which county had not been embraced by the local law of 1849, and reviving and declaring in full force that part of the act of 1843 making prosecuting attorneys elective by the voters of the several judicial circuits every two years, and that part of the act of 1831 prescribing the duties of said prosecuting attorneys, and making their salaries payable out of the state treasury; and further declaring that the first election under said act of 1851 should be on the first Monday in August following, being the annual election day for the year 1851.

The acts thus revived were general and operative in every county of the state; and the first question presenting itself is, whether they have the effect to repeal the local act of 1849 in the fourth and eighth judicial circuits. Their provisions are utterly irreconcilable with the provisions of said act of 1849, and, we think, necessarily repeal it. Such being the case, as Mr.

Robinson was holding his office of prosecuting attorney under and by virtue alone of said repealed act, he necessarily went out of that office with the expiration of said act, unless there was some saving clause in reference to existing incumbents of office. As it would be but just to said incumbents that they should be permitted to serve out the terms for which they were elected, it will be light for the Court, if by a reasonable construction of the laws that result can be effected, to preserve their terms to them. We think this can be done. II. G. Barkwell, for the plaintiff. C. Baker, for the state.

The act of 1843, R. S. 1843, p. 1048, contains this proviso, viz., that it shall not “be so construed as to prevent the present prosecuting attorneys from holding their said office during the term for which they have been elected.” Now, this proviso was repealed by the act of 1847, or it was not. If it was repealed by that act, it was revived by the act of 1851, under which Barkwell was elected, for that act revives “so much” of the act of 1843 as was repealed by the act of 1847.

If it was not repealed by the act of 1847, it has continued a standing law of the state since 1843, as no other act has repealed it, and would, hence, from a part of all new laws relative to the tenure of office of prosecuting attorneys. Per Curiam. The decree is affirmed with costs.