State Ex Rel. Black v. Burch , 226 Ind. 445 ( 1948 )

I concur in the result reached in the majority opinion, but believe that something should be added.

Under the majority holding this court does not attempt to disturb prior holdings based on the doctrine of stare decisis. If the appellants performed services for the State of Indiana under a contract of employment, which contract was not in violation of Section 1 of Article 3, as that instrument was construed in the case of Branham v. Lange, Auditor, etc. (1861), 16 Ind. 497, then the construction placed on that section of the Constitution of Indiana by the majority opinion in this case, could not be held to impair such contractual rights. Swank et al. v.Tyndall et al. (1948), ante 204, 78 N.E.2d 535.

In the above case this court held that "a decision overruling a prior decision as to the construction of a statute is retroactive to the time of the enactment of the statute." It is also held that the same rule applies to the construction of constitutions. It likewise was held in the Swank case, supra, that a change in the construction of a statute or of the constitution could not impair vested rights which rest on contract.

In the instant case, it could not be held that rights protected by the above rule, could be enforced by means of mandate.

NOTE. — Concurring Opinion reported in 80 N.E.2d 303.