is 693
It noted that such executive paroles normally carry the
two
paragraphs which provide that the parolee shall remain
under the jurisdiction of the proper offcials and that the
parole wil be revoked for any violation. Those provisions carry no greater import than the parolee may be required to report to and his conduct wil be checked by the proper off-
cials, but they do .not purport to delegate a power to the board
of trustees of the prison to revoke a parole even if such a
delegation could be made. I am of the opinion that the proper
construction of the provision on revocation is that upon
report from the board of trustees of the prison (or upon information from other sources) that a parolee has violated
his parole, or for any other reason for revocation, the gover-
nor shall be the one to revoke a parole granted by him.
Therefore, your questions should
all be answered in the
negative.
DEPARTMENT INSPECTION AND SUPERVISION OF
~UBLIC OFFICES: The offce f city.
clerk is not an
offce within the purview of Section 16 of Article 7 of the
Indiana Constitution.
December 14,1943.
, Hon. otto K. Jensen, State
Examiner
Department of Inspection and Supervision
of Public Offces,
State House,
Indianapolis, Indiana.
Dear M;r. Jnsen:
This wil acknowledge receipt of your recent letter which
reads as follows:
"I have rec:ived a request from an Attorney for a Civil Town as to the eligibilty of one elected to the
offce o'f Town Clerk-Treasurer at the regular election held November 2, 1943. _ "Can a person, who is serving as a Justice of the
Peace and whose term of offce as a Justice of-the
Peace extends beyond the time of taking
over the offce
of Clerk-Treasurer of a Civil Town to which offce he was elected during the time for which he was to serve-
694
as a Justice of the Peace, be eligible to take over and hold the offce of Clerk-Treasurer of the Civil Town?
"If your answer is in the negative to the above question, would the present encumbent hold offce unti his
successor was elected and
qualified ?
"I am attaching a resume of the events and a brief
of the questions; and would like to have your offcial opinion of the same."
Section 16 of Article 7 of the Indiana Constitution reads
as follows:
"No person elected to any judicial offce, shall, during the term for which he shall have been elected, be under the State.
eligible to any offce of trust or profit,
other than a judicial offce."
The first question presented by your letter is whether or not
the offce of Justice of the Peace is a judicial offce within
the meaning and purview of the above provision of the Indiana Constitution. It isIny opinion that the answer to this question is found in the language of the Supreme Court of
Indiana in the case of Vogel v. State ex reI Land, 107 Ind.
374. In this case the Supreme Court says:
"That the offce of justice of the peace is a judicial offce under our Constitution and statutes, is well set~
tIed."
Your letter states that the term for which the person referred
to in your letter was elected as a Justice of the Peace wil
extend beyond the time for taking over the offce of Clerk-
Treasurer of the Civil Town, to which offce he was elected
November 2, 1943.
In view of the fact that the person involved has been elected
to a judicial offce as above stated, the remaining question to be answered is whether or not the offce of TownClerk-Treasurer to which he was elected while fillng a judicial offce, is an offce of trust or profit under the state within the meaning
and purview of Section 16, Article 7, Indiana Constitution,
above quoted. In the case of Mohan v. Jackson, 52 Ind. 599,
the facts were as follows: One Jackson was elected to the
offce of Justice of the Peace on November 11, 1870; he qual~
695
ified as such Justice of the Peace and entered upon the discharge of the duties of his offce. May On 5, 1874, he was
elected to the offce of City Clerk of the City of Anderson,
Indiana, and he qualified and assumed to discharge the duties of that offce. The question presented to the Supreme Court .was whether or not Jackson was eligible to hold the offce of City Clerk. In deciding the question the Supreme Court considered the provisions of Section 16 of Article 7 of the Indiana
Constitution and then decided the question in the following
language:
"We are of the opinion that the offce of city clerk
is not an offce 'under the State,' within the meaning
of this section. The State v. Kirk, 44 Ind. 401."
A thorough search fails to disclose that the above case has ever been overruled, modified or criticized by the Supreme this date. In
Court of Indiana in any subsequent decision to
the case of The State v. Kirk, 44 Ind. 401, cited in support
of the court's conclusion, it was expressly held on page 406
of 44 Ind. that "The offce of councilman is an offce purely
and wholly municipal in its character. He has no duties to
perform under the general
laws of the State." The Kirk case
cites the case of Howard v. Shoemaker, 35 Ind. 111, in support
of its ruling that the offce of councilman was purely and
wholly municipal in its character and not an offce within the
State under Section 16 of Article 7 of the Indiana Constitu-
tion. Again, in the case of Chambers v. State, 127 Ind. 365,
the Supreme Cur,t said:
"It must, therefore, be regarded as the settled law
of this State that if an offce is purely municipal, the
offcer not being charged with any duties under the
laws of the State, he is not an offcer within the meanif the offcer be charged ing of the Constitution, but with any duties under the laws of the State, and for
which he is entitled to compensation, the offce is a
lucrative. offce within the meaning of the Constitution. This, although it may be a narrow construction of the
Constitution, must be regarded as settled."
In view of the
fact that under the law as declared by the
Supreme Court in the case of Mohan v. Jackson, supra, the
696
offce of. city-clerk is not an offce under the State within the meaning and purview of Section 16 of Article 7 of the Indiana Constitution, it is my opinion that the person who was elected
to the offce of town clerk~treasurer a...