McComas v. Krug. Federal constitution, or with any law or treaty made under that constitution. Does the statute infringe upon, or is it repugnant to, any of the provisions of the constitution of this State? In Fletcher v. Peck, 6 Cranch, 87, in considering the constitutionality of a statute of Georgia, under the constitution of that State, it was said by MARSHALL, C. J., on page 128: "The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." So, in Maize v. The State, 4 Ind. 342, in considering a similar question, STUART, J., speaking for the court, said: "Such questions are always regarded by the courts as of serious importance. The judiciary look to the acts of the Legislature with great respect, and reconcile and sustain them, if possible. The General Assembly is the immediate exponent of the popular will,-expressly delegated to clothe that will with the forms of law. The presumption that such a body has sanctioned enactments in violation of the constitution, is not to be lightly indulged. That the act is imperfect or impolitic, is not enough. These defects subsequent legislation can remove by amendment or repeal. To bring its validity within the control of the courts, it must be clearly subversive of the constitution." It has been the uniform rule in this court, when the constitutionality of a statute has been under consideration, to so construe and interpret its provisions, if possible, as to sustain and not defeat the law in question. For it is clearly the duty McComas v. Krug. of the court, when the constitutionality of a statute is merely doubtful, to sustain the law, if it can be done by any fair construction. Stocking v. The State, 7 Ind. 326; Brown v. Buzan, 24 Ind. 194; Shoemaker v. Smith, 37 Ind. 122; Clare v. The State, 68 Ind. 17; Fry v. The State, 63 Ind. 552, on page 559. With this statement of the rule which governs the court in the determination of such a question as the one now before us, we proceed now to the consideration of the constitutionality of the statute above quoted. In section 7 of the sixth article of the constitution of 1851, it is provided as follows: "All State officers shall, for crime, incapacity, or negligence, be liable to be removed from office, either by impeachment by the house of representatives, to be tried by the senate, or by a joint resolution of the General Assembly; two-thirds of the members elected to each branch voting, in either case, therefor." The next succeeding section of the same article of the same constitution, reads as follows: "Sec. 8. All State, county, township, and town officers may be impeached, or removed from office, in such manner as may be prescribed by law." It would seem that these two sections of the constitution were intended, and ought, to be construed together. They both treat of the same general subject, namely, impeachment or removal from office. Construed together, sections 7 and 8 would provide, as to State officers, that for crime, incapacity, or negligence, they should be removed from office, either by impeachment by the house and trial by the senate, or by a joint resolution of the General Assembly, or in such manner as might be prescribed by law; and, as to county, township and town officers, the same sections of the constitution, construed together, would provide that for crime, incapacity, or negligence, they should be impeached, or removed from office in such manner as might be prescribed by law. Thus construing together these two sections, 7 and 8 of the sixth article of the constitution of 1851, we have no difficulty in declaring that the statute above quoted is a constitutional and McComas v. Krug. valid law. It does not infringe upon, nor is it in conflict with any of the provisions of the constitution. Not only so, but we think that the Legislature were authorized, under the provisions of said sections 7 and 8, of article 6, of the constitution, construed together, to prescribe and declare by law that for such incapacity as necessarily results from voluntary intoxication within the business hours of his office, or from the habit of becoming intoxicated by the use of intoxicating liquors, a county officer, such as a sheriff, shall forfeit his office and be removed therefrom. This is what, by fair construction, the Legislature have declared in and by the statute now under consideration. True, the word "incapacity is not to be found in the statute; but it is equally true, that it proceeds, and can only be sustained, upon the theory that voluntary intoxication during business hours, or the habit of becoming intoxicated by the use of intoxicating liquors, will incapaci tate the county officer and render him unfit for the proper discharge of his official duties. It is claimed by the appellant's counsel that the word "eligible," as used in the State constitution, "relates to capacity of holding, as well as capacity of being elected to, an office;" and so this court decided in Carson v. McPhetridge, 15 Ind. 327. But it will not do to say, we think, that because a man is eligible to a county office, as well for the purpose of holding the same as for the purpose of being elected thereto, and because the constitutional term of his office is two years, he may not disqualify himself within his term of two years by crime, incapacity, or negligence, for the proper discharge of the duties of his office. If he may so disqualify himself, and surely this can not be doubted, it would be strange, indeed, if the Legislature might not declare by law, that for such crime, such incapacity, or such negligence, such county officer might be impeached or removed from his office. It would be stranger still, as it seems to us, if such a law for such a purpose should be declared unconstitutional and void, either because it added to the constitutional quali Morrison et al. v. The Bank of Commerce. fications of a county officer, or because it might have the effect of abridging his term of office, as fixed by the constitution. For the reasons given, we are of the opinion, that the statute quoted is a constitutional and valid law; and that, therefore, the appellee's demurrers to each of the paragraphs of the complaint, for the alleged insufficiency of the facts therein, ought to have been overruled. The other grounds of demurrer have not been discussed, and might be regarded as waived; but we may say, that it does not seem to us, that either of these grounds of demurrer was well assigned. Under the provisions of the statute, the action was properly brought by the appellant in his own name, and the State of Indiana was neither a necessary nor a proper party to the suit. The judgment is reversed, at the appellee's costs, and the cause is remanded, with instructions to overrule the demurrers to each of the paragraphs of complaint, and for further proceedings not inconsistent with this opinion. No. 9216. MORRISON ET AL. v. THE BANK OF COMMERCE. TAXES.-Complaint to Enjoin Execution of Deed for Land Sold.-A complaint to enjoin a city treasurer from executing a deed for real estate sold for taxes, which avers that the owner of the property, at the time of the sale, had sufficient personal property in the county out of which the tax could have been collected, is good on demurrer. SAME.-Sale.of Real Estate, When Owner has Personal Property.-A sale of real estate for taxes, while the owner has sufficient personal property out of which the taxes could have been satisfied, is void. SAME.-Agreement to Bid Jointly at Tax Sale.-Public Policy.-An agreement made between two or more persons to bid jointly upon property at a tax sale, if not made to prevent bidding, for the purpose of protecting their own interests, is not fraudulent in law, and will not vitiate such sale. Morrison et al. v. The Bank of Commerce. SAME.-Judgment Lien-Holders May Purchase.--When one holds a judgment lien upon real property offered for sale for taxes, he has the right to pay the taxes, but this right does not impose upon him the duty to pay them, nor does it prevent him from acquiring title to such property by purchase at such tax sale. From the Marion Superior Court. S. Claypool, H. C. Newcomb, W. A. Ketcham and J. T. Lecklider, for appellants. J. M. Judah and A. S. Caldwell, for appellee. BEST, C.-The appellee brought this action against William H. Morrison and several other persons, partners under the firm name of the "Indiana Banking Company," William M. Wiles, treasurer, and Benjamin C. Wright, clerk of the city of Indianapolis, and Daniel W. Grubbs, to quiet the title to some real estate, to set aside a sale of the same for taxes and to restrain the officers of said city from executing a deed to the purchasers in pursuance of such sale. The complaint averred in substance that the appellee is a corporation, and that it owns lots 1 and 2 in square 46 in the city of Indianapolis, Marion county, Indiana; that on the 17th day of February, 1877, one Nicholas R. Ruckle, from whom the appellee derived its title, owned said lots, and on said day the treasurer of the city of Indianapolis sold said lots to Daniel W. Grubbs and Thomas Cottrell for $3,374.95, which was the amount of taxes due thereon, and issued to them a certificate of sale; that afterwards said Cottrell assigned his interest in said certificate, which was one-half, to one Francis M. Churchman, who afterwards assigned it to the appellee; that, at the time and before such sale, said Nicholas R. Ruckle was a resident and citizen of Indianapolis, Marion county, Indiana, and had sufficient personal property out of which said taxes could have been collected; that at said sale said Daniel W. Grubbs and Thomas Cottrell each proposed to and intended to be competing bidders on such property, but for the purpose of preventing competition at such sale, and to enable each to purchase for one-half of said tax more of said property than they |