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Board of Election Com'rs of City of Indianapolis v. Knight
Supreme Court of Indiana.October 26, 1917187 Ind. 108117 N.E. 565 (Approx. 13 pages)
Board of Election Com'rs of City of Indianapolis v. Knight
Supreme Court of Indiana.October 26, 1917187 Ind. 108117 N.E. 565 (Approx. 13 pages)
187 Ind. 108
Supreme Court of Indiana.
BOARD OF ELECTION COM'RS OF CITY OF INDIANAPOLIS et al.
v.
KNIGHT.
No. 23375.
Oct. 26, 1917.Concurring Opinion Nov. 1, 1917.
Attorneys and Law Firms
*566 Ele Stansbury, of Indianapolis, Abram Simmons, of Bluffton, Stuart, Hammond & Stuart, of La Fayette, Catherine W. McCulloch and Emma Eaton White, both of Chicago, Ill., and U. S. Lesh, of Huntington, for appellants. Charles E. Cox and Geo. H. Batchelor, both of Indianapolis, for appellee. Elias D. Salsbury, of Indianapolis, amicus curiæ.
Opinion
SPENCER. C. J.
The General Assembly of 1917 passed an act which purports to grant to women of the state the right to vote for certain public officers and at certain elections. Acts 1917, p. 73. It also passed an act concerning the registration of voters generally, of which section 12, in effect, undertakes to provide for the registration of women as a condition precedent to their exercise of the right of suffrage. Acts 1917, p. 443. Subsequent to the passage of these enactments, appellee, as a citizen voter and taxpayer in the city of Indianapolis, instituted this suit in his own behalf, and in behalf of other voters and taxpayers similarly situated, to restrain appellants, as members of the board of registration and election commissioners, from performing certain acts required of them by the above legislation in connection with a municipal election to be held in the city of Indianapolis on November 6, 1917. It is his contention, briefly, that under the Constitution of the state the right of suffrage may not be extended to women, and this appeal is taken from a decree of the Marion superior court, which sustains, in substance, the prayer of the complaint.
Preliminary to a consideration of the case on its merits, we are required first to pass on appellants' assertion that the trial court had no jurisdiction to determine the issues sought to be presented for the reason that the alleged unconstitutionality of a law is not alone sufficient to authorize the granting of equitable relief against its operation. 14 R. C. L. 435, sec. 137. Conceding this general proposition, the rule is equally well established that where, as in this case, it is alleged and proved that a compliance with the provisions of the legislation in question would necessitate a considerable expenditure of public funds, the taxpayers may, through the aid of a court of equity, secure an early interpretation of the law, and thus, on proper occasion, forestall an illegal expense. Bennett v. Jackson, 116 N. E. 921; Ellingham v. Dye, 178 Ind. 336, 413, 99 N. E. 1, Ann. Cas. 1915C, 200.
We pass, then, to a consideration of the principal issues presented, and find that, in a broad sense, they may be resolved into an inquiry as to whether the General Assembly has the power, under any circumstances, to extend the right of suffrage to persons not included within the provisions of section 2 of article 2 of the Constitution. The inquiry thus suggested, although of vital importance, is purely one of constitutional interpretation, and, no matter how we may feel or think as to the principle of universal suffrage, the solution of the question before us may not rest on or be influenced by considerations of social policy or political expediency, but must be reached in strict accordance with recognized canons of constitutional construction. In the exact form which it now takes, the issue is largely one of first impression, at least in this state, although as will be noted later, this court has previously had occasion to announce certain principles which are applicable to the present inquiry and which affect its solution in some degree.
The section of the Constitution now under consideration directs that:
“In all elections not otherwise provided for by this Constitution, every male citizen of the United States, of the age of twenty–one years and upward, who shall have resided in the state during the six months, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding such election, and every male of foreign birth, of the age of twenty–one years and upwards, who shall have resided in the United States one year, and shall have resided in this state during the six months, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding such election, and shall have declared his intention to become a citizen of the United States, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote in the township or precinct where he may *567 reside, if he shall have been duly registered according to law.” Const. art. 2, § 2.
As appellants concede, the above provision is mandatory to the extent that it precludes the Legislature from modifying its requirements or from imposing on persons therein designated any additional qualifications which shall be prerequisite to their exercise of the right of suffrage. State v. Shanks, 178 Ind. 330, 333, 99 N. E. 481; Morris v. Powell, 125 Ind. 281, 25 N. E. 221, 9 L. R. A. 326; Quinn v. State, 35 Ind. 485, 9 Am. Rep. 754.
But the contention is made that as neither this nor any other section of the Constitution expressly prohibits the Legislature from extending the franchise to classes of persons other than those above enumerated, the exercise of that power is within the purview of article 4, § 1, which rests the legislative authority of the state in the General Assembly. This contention rests on the well–established principle that, except as to limitations imposed by the state or federal Constitution, or by laws or treaties enacted or adopted pursuant to the provisions of the latter instrument, the legislative powers of the General Assembly are practically absolute. Beauchamp v. State, 6 Blackf. 299, 302. The extent to which this principle is operative finds expression in the rule that if a legislative enactment is properly within the constitutional grant, the courts may not declare it invalid on the ground that it is wrong or unjust, or violates the spirit of our institutions, or impairs rights which it is the object of a free government to protect. Townsend v. State, 147 Ind. 624, 634, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477. At the same time, to adopt a statement made by Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87, at page 135, 3 L. Ed. 162:
“It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power.”
That doubt has received affirmative recognition by the courts under varying circumstances, but we are not especially concerned at this time with the doctrine of implied, limitation on legislative authority, in view of our conclusion that the authority of the General Assembly to enact the law in question is necessarily inhibited by article 2, § 2, of the Constitution. As was decided in Gougar v. Timberlake, 148 Ind. 38, 40, 48 N. E. 339, 37 L. R. A. 644, 62 Am. St. Rep. 487, the right of suffrage is not a natural or an inherent right, but a political privilege, and it is held only by those on whom it is bestowed, either by virtue of express constitutional grant or through authorized legislative provision. The question is primarily one for the consideration of the people in their capacity as creators of the Constitution, and is never one for the consideration of the Legislature except in so far as that instrument clearly sanctions an extension of the elective franchise or permits a regulation of its mode of exercise. Morris v. Powell, 125 Ind. 281, 315, 25 N. E. 221, 9 L. R. A. 326; Minor v. Happersett (88 U. S.) 21 Wall. 162, 173, 22 L. Ed. 627; Coggeshall v. City of Des Moines, 138 Iowa, 731, 737, 117 N. W. 309, 128 Am. St. Rep. 221, 6 R. C. L. 287, § 273.
If, as appellants insist, the General Assembly has the power, under its broad grant of legislative authority, to extend the right of suffrage to women of the state, it may likewise extend the same right to male citizens under the age of 21 years and to persons of foreign birth who have not declared their intention to become citizens of the United States. The effect of such a construction would be to place section 2 of article 2 purely within the class of restrictive provisions on legislation and practically destroy its character as an affirmative grant of privilege. We need not extend our discussion of this branch of the case, however, as the principle is well established that the Legislature has no general power to confer the elective franchise on classes other than those to whom it is given by the Constitution, since its description of those who are entitled to vote is regarded as excluding all others. State v. Patterson, 181 Ind. 660, 664, 105 N. E. 228; Gougar v. Timberlake, 148 Ind. 48, 48 N. E. 339, 37 L. R. A. 644, 62 Am. St. Rep. 487; McCafferty v. Guyer, 59 Pa. 109; Coffin v. Election Com'rs, 97 Mich. 188, 194, 56 N. W. 567, 21 L. R. A. 662; Coggeshall v. City of Des Moines, 138 Iowa, 737, 117 N. W. 309, 128 Am. St. Rep. 221; 15 Cyc. 298; Cooley, Const. Lim. (7th Ed.) 99, 245.
In this connection, our attention is called to the case of In re Leach, 134 Ind. 665, 34 N. E. 641, 21 L. R. A. 701, as authority for the proposition that the maxim “Expressio unius est exclusio alterius” is not applicable in the construction of a constitutional provision. The decision in that case, however, is to be sustained on the ground that the subject–matter of article 7, § 21, then under consideration, has reference to an inherent right belonging to every individual rather than on the ground that the principle contained in the maxim is inapplicable as a rule of constitutional interpretation. See Gougar v. Timberlake, 148 Ind. 48, 48 N. E. 339, 37 L. R. A. 644, 62 Am. St. Rep. 487.
Reference is also made to the fact that from 1851 until its amendment in 1881 the Constitution of Indiana contained a provision (article 2, § 5) that, “No negro or mulatto shall have the right of suffrage,” although during that same period article 2, § 2, was applicable only to white male citizens. It is to be remembered, however, that the present Constitution was adopted during a period in the history of this country in which the public mind was greatly concerned with questions of slavery and of the social and political rights of the negro. Those issues had undoubtedly affected the vote on previous occasions when the matter of undertaking a constitutional revision had been before *568 the people and during the convention of 1850 numerous petitions on the question of negro suffrage, and concerning his political and property rights generally, were presented for consideration. We are warranted, therefore, in considering article 2, § 5, as an added precaution, indicative of the public mind on an issue which was then of vital importance, rather than as an intended restriction on the effect of article 2, § 2, and especially is this conclusion justified by the fact that the negro section, although recognized as unnecessary, was adopted on the principal ground that “it can do no harm.” Conven. Debates, vol. 2, pp. 1712, 1737. As opposed to this circumstance, we find that article 12, § 1, which provides that “The militia shall consist of all able–bodied white male persons,” etc., has been uniformly construed as excluding colored persons from the service, and on at least three occasions (1885, 1889, and 1913), a proposition for the amendment of the Constitution in this particular has been submitted to the General Assembly.
With proper regard, then, for the constitutional history of the state, as well as for the nature of the question at issue, we have determined that the right of franchise is a political privilege of the highest dignity which can emanate only from the people, either in their sovereign statement of the organic law or through legislative enactment which they have authorized.
Our next inquiry is to ascertain whether the Constitution of Indiana authorizes such an enactment. Appellants assert the affirmative of that proposition, and rely chiefly on the provision of article 15, § 1, that:
“All officers whose appointments are not otherwise provided for in this Constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law.”
The word “appointment,” as used in this section, is to be construed as meaning “method of selection” (McPherson v. Blacker, 146 U. S. 1, 27, 13 Sup. Ct. 3, 36 L. Ed. 869), and is thus broad enough to allow the Legislature to determine whether such officers shall be appointed, in the strict sense of the term, or elected by popular vote. We cannot agree, however, that, in the latter alternative, the Legislature has the further authority to define the electorate which may participate in such election. The right to determine the “manner” in which public officers are to be chosen has reference only to the method or mode of selection, and does not include the power to determine the qualifications of the legal voters. Livesley v. Litchfield, 47 Or. 248, 253, 83 Pac. 142, 114 Am. St. Rep. 920; Coffin v. Election Com'rs, 97 Mich. 188, 194, 56 N. W. 567, 21 L. R. A. 662; People ex rel. v. English, 139 Ill. 622, 629, 29 N. E. 678, 15 L. R. A. 131; People ex rel. v. Guden (Sup.) 75 N. Y. Supp. 347, 349.
As denying force to the proposition just stated, we are referred to the decision of Scown v. Czarnecki, 264 Ill. 305, 106 N. E. 276, L. R. A. 1915B, 247, Ann. Cas. 1915A, 772, and to certain other cases which relate principally to the election of school officials. The suffrage enactment now under consideration is based substantially on the Illinois Woman's Suffrage Law of 1913, which the Supreme Court of that state, in Scown v. Czarnecki, at page 312 of 264 Ill., at page 279 of 106 N. E., L. R. A. 1915B, 247, Ann. Cas. 1915A, 772, held to be constitutional on the theory that:
“If an office is not of constitutional origin, it is competent for the Legislature to declare the manner of filling it, how, when, and by whom the incumbent shall be elected or appointed, and to change, from time to time, the mode of election or appointment.”
This decision is based expressly on the cases of Plummer v. Yost, 144 Ill. 68, 33 N. E. 191, 19 L. R. A. 110, and People ex rel. v. English, 139 Ill. 622, 29 N. E. 678, 15 L. R. A. 131, of which the latter case holds, in part, that as the county superintendent of schools is mentioned in the Illinois Constitution, the Legislature has no authority to extend to persons not possessed of the constitutional qualifications the right to vote for that officer, even though the Constitution further provides that his “time and manner of election *** shall be prescribed by law.” The court says, at page 630 of 139 Ill., at page 679 of 29 N. E., 15 L. R. A. 131, that:
The “word ‘manner’ *** indicates merely that the Legislature may provide by law the usual, ordinary, or necessary details required for the holding of the election.”
No sound basis is perceived for distinguishing between such a use of the word in the Illinois Constitution and in that of Indiana. It is true that in the one case the Constitution first names the officer and then directs that he shall be elected in such “manner” as may be prescribed by law, while in the other, the General Assembly is authorized to name the officer itself and then to provide for his election or appointment in such “manner” as may be prescribed by law, but when, under the latter authority, an office has been created and provision made for the election of the incumbent, the only remaining step is to determine the “manner” of his election, and the rule as above expressed in the English Case is at once applicable. The bare fact, standing alone, that one officer is named in the Constitution and the other is not affords only an arbitrary ground for distinction as to who may participate in their election. The dissenting opinion of Mr. Justice Cooke, in Scown v. Czarnecki, supra, considers the Yost and English Cases at length, and effectively discloses the unsoundness of the majority opinion of his associates, which in its analysis, rests on an erroneous application of the doctrine of stare decisis.
Concerning the school cases, it is enough to note that, except as to the selection of the state superintendent of public instruction, *569 the entire matter of developing the public school system and of providing for its administration rests with the General Assembly under article 8, § 1, of our Constitution, and is in no sense governed by any provision made for the selection of public officers generally. That distinction has long been recognized by the courts of this and other states, although not always based on the same ground. Kelso v. Cook, 184 Ind. 173, 184, 110 N. E. 987; State ex rel. v. Haworth, 122 Ind. 462, 466, 23 N. E. 946, 7 L. R. A. 240; Belles v. Burr, 76 Mich. 1, 11, 43 N. W. 24; Plummer v. Yost, 144 Ill. 75, 33 N. E. 191, 19 L. R. A. 110; Wheeler v. Brady, 15 Kan. 26; State v. Cones, 15 Neb. 444, 447, 19 N. W. 682.
To return to the question at issue, it is clear that any effort on the part of the General Assembly to establish a public electorate which would differ from that defined in article 2, § 2, of the Constitution must necessarily be in conflict with the manifest purpose of that section to designate the voters entitled to participate in all elections “not otherwise provided for by this Constitution.” Certain elections in which the members of one or both houses of the General Assembly constitute the electorate are “otherwise provided for” in the Constitution, and this fact is exressly recognized in section 13 of article 2, which requires that:
“All elections by the people shall be by ballot; and all elections by the General Assembly, or by either branch thereof, shall be viva voce.”
An electorate defined by legislative enactment is not “otherwise provided for by this Constitution,” but by the General Assembly, and the passage of such an enactment can be of no force, in view of the express constitutional declaration that, except as otherwise provided in that instrument, every male citizen who possesses certain qualifications shall be entitled to vote in all elections. As was decided in People ex rel. v. Canaday, 73 N. C. 198, 221, 21 Am. Rep. 465, whenever a Constitution designates a certain class of persons as electors or confers on them the right of suffrage, it means that, in the absence of other restrictive provisions contained therein, they shall be entitled “to vote generally whenever the polls are opened and elections held for anything connected with the general government, or the state or local governments.” When properly construed, then, article 15, § 1, vests in the General Assembly the right to determine in what manner offices of its own creation shall be filled, but whenever, in the exercise of that power, provision is made for the selection of the incumbents by popular vote, the qualifications prescribed in article 2, § 2, control in fixing the electorate.
It is earnestly insisted, however, that for a long period of time immediately preceding and subsequent to the adoption of our present Constitution, the General Assembly regularly assumed to designate the qualifications for legal voters in municipal elections, and that this interpretation by the Legislature of its own power is now of controlling importance. We may concede that a uniform and long–continued exposition of a constitutional provision, though not conclusive, is generally entitled to great weight, and should not be departed from unless it is manifestly erroneous or has received disapproval in a subsequent expression of the sovereign will. 6 R. C. L. 63, § 60. With this principle in mind, we proceed to a consideration of the constitutional and legislative history of the state as it concerns the question of suffrage in municipal elections. Under the Constitution of 1816, the right of suffrage, “in all elections not otherwise provided for” in that instrument, was granted to every white male citizen of the United States, of the age of 21 years and upwards, who had resided in the state one year immediately preceding such election, and he was entitled to vote in the county of his residence. Const. 1816, art. 6, § 1. Certain elections were “otherwise provided for” in that Constitution, as in the present, and this was particularly true of the military elections in which the suffrage qualifications differed materially from those fixed in the general grant. Const. 1816, art. 7, §§ 3–5. This fact has a bearing on the questions now in issue as indicating that the clause “otherwise provided for by this Constitution,” which was readopted without change in 1851, has reference only to the constitutional definition of a special electorate which should participate in certain elections. The Constitution of 1816 also provided that “town and township officers shall be appointed in such manner as shall be directed by law” (see People ex rel. v. English, 139 Ill. 622, 629, 29 N. E. 678, 15 L. R. A. 131), and authorized the General Assembly to determine in what “manner” offices of its own creation should be filled. Const. 1816, art. 4, § 8, and article 11, § 15. No provision was made, however, for the creation of towns and cities generally, and it soon became the practice, whenever it was desired to establish a municipal corporation, to petition the Legislature for the passage of a special law which should contain the charter grant. These laws regularly assumed to fix the qualifications for municipal suffrage, and were not uniform in that particular, as local necessities usually served as the guide in determining such qualifications.
During the formative period of that policy, at least, communication between the various towns and cities of the state was difficult and limited, and there existed, in some degree, a condition of social and political isolation which tended to prevent a recognition of the fact that the municipal unit is a governmental agency of the state, as well as an organization for the control of local affairs. In view of this condition, it may be argued with reason that, in the first instance, the practice of providing local qualifications for municipal suffrage developed out of the existing *570 relation between the town or city and the state, rather than from a belief on the part of the General Assembly that it had full authority to provide the electorate for the choice of all officers not mentioned in the Constitution. It must be conceded, however, that the practice continued until the adoption of the present Constitution in 1851, and the assertion is now made that in framing that instrument without making different provision for determining the municipal electorate, the people of the state impliedly accepted the interpretation by the Legislature of its own authority in that particular, but in view of later developments this circumstance becomes of no importance.
Article 2, § 2, of the present Constitution, as originally adopted, conferred the general right of suffrage on “every white male citizen of the United States, of the age of twenty–one years and upwards, who shall have resided in the state during the six months” immediately preceding an election, and on white males of foreign birth, possessed of the same qualifications, who had resided in the United States for one year and had declared their intention to become citizens under the naturalization laws. In 1852 the General Assembly passed an act which provided, in part, that:
“In all municipal elections in this state, no other or different qualifications shall be required of voters, than that which shall entitle them to vote at any township, county or state election, except that their residence shall be in the ward of the city or town where such election should be holden.” Acts 1852, p. 124.
It is apparent, from the portion of the law which we have italicized, that the General Assembly still assumed to fix the qualifications for municipal suffrage, but the clause in question becomes important later in establishing a sovereign disapproval of that practice. This court knows, as a matter of public history (Smith v. Pedigo, 145 Ind. 361, 418, 33 N. E. 777, 44 N. E. 363, 19 L. R. A. 433, 32 L. R. A. 838), that one of the principal reasons for the amendment of the Constitution in 1881 is to be found in the extent to which fraudulent and illegal voting had, for some years, marked the holding of political elections in city and state alike (Governor's Message of January 4, 1877). Various proposals were made to amend the residential qualifications as set forth in the Constitution, and in 1877 a resolution was introduced in the Senate, which provided for residence in the township or precinct for 60 days immediately preceding an election. Prior to its passage, however, that resolution was amended, in part, by adding an alternative provision for residence in the ward, thus adopting the very requirement which was exacted of voters in municipal elections by the General Assembly of 1852. The ward exists only as a political subdivision of the city or town (sections 8641, 8984, Burns 1914; Standard Dictionary), and there can be no doubt that when the people of this state, in 1881, amended article 2, § 2, of their Constitution in accordance with the resolution of 1877, they intended that its requirements should apply in determining the qualifications of voters at all state, county, township, and municipal elections of a political nature. Even though it be admitted that prior to the amendment of 1881, municipal elections were of a class “otherwise provided for by this Constitution,” the effect of that amendment was to bring such elections within the class “not otherwise provided for” by that instrument, and to make the constitutional qualifications applicable in determining the electorate. The evil which the amendment sought to check was as pronounced in city elections as in those for the choice of state officers, and it is inconceivable that the people should have sought to remedy the condition in one instance and not in the other, or that they should have adopted the legislative provision of 1852, concerning municipal elections, unless it was their intention to make the constitutional requirements applicable in elections of that class.
If we concede, then, that in passing the various local charter laws prior to the adoption of our present Constitution and in enacting the general statute of 1852, the Legislature assumed that the suffrage qualifications then contained in article 2, § 2, and in the similar provision of the Constitution of 1816, were not intended to apply in municipal elections, it is equally evident that in adopting the amendment of 1881 the people plainly announced that this assumption had been erroneous and should not continue, and from that time, until in the present instance, the General Assembly has made no effort to prescribe or change the qualifications for municipal suffrage. It is true that section 230 of the Towns and Cities Act of 1905 provides that:
“In all municipal elections, no other qualifications shall be required of any voter than such as are made necessary in general elections under the Constitution and laws of the state” (section 8884, Burns 1914)
—but that provision is no more indicative of a legislative belief that other requirements might be exacted than is the fact that in 1881 the General Assembly passed a general election law prescribing for all voters certain qualifications which are identical with those set forth in the Constitution. Section 6876, Burns 1914. Furthermore, the “laws of the state” which are referred to in the act of 1905 consist: (1) Of a restatement, in substance, of the constitutional provisions on the question of suffrage; and (2) of a statute concerning disfranchisement which was passed pursuant to express constitutional direction. Sections 6876–6879, Burns 1914.
The principle of legislative interpretation, in order to be properly applicable to the issues in this case, must have been based on acts *571 passed since 1881 which would indicate a belief on the part of the General Assembly that the suffrage provisions of the Constitution, as amended in that year, were not intended to apply in city elections. The basis for such a contention is lacking, and our determination of the present inquiry must rest, therefore, on the conclusions heretofore reached: (1) That article 2, § 2, of the Constitution, in itself, defines the electorate which shall participate in every state, county, township, and local election of political officers; and (2) that the General Assembly has no authority to extend the right of franchise to persons not included within that definition.
Applying these general principles to the facts in issue, we must sustain the decision of the trial court in holding that the Partial Suffrage Act of 1917 is invalid in so far as it purports to grant to women of the city of Indianapolis the right to participate in the election of a mayor, a city judge, a city clerk, and the members of the common council. The remaining inquiry is to determine their right to participate in the election of members of the board of school commissioners. The Suffrage Act undertakes, in part, to confer on women the right to vote “for all school officers elected by the people,” but that grant appears only as an incident in what is plainly an exercise of an assumed power to extend the right of political franchise. No suggestion is made, either in the title of the act or in its provisions as a whole, which would indicate that the General Assembly was there undertaking to exercise its authority over the administration of the public school system, and, under such circumstances, the case is governed by the rule that where valid and invalid provisions of an enactment are so connected one with the other that it is apparent that the Legislature would not have passed the act, except as a whole, the entire statute must fall. State ex rel. v. Fox, 158 Ind. 126, 130, 63 N. E. 19, 56 L. R. A. 893; State ex rel. v. Blend, 121 Ind. 514, 521, 23 N. E. 511, 16 Am. St. Rep. 411; Griffin v. State ex rel., 119 Ind. 520, 22 N. E. 7; 6 R. C. L. 123, § 122.
This conclusion requires a full affirmance of the judgment of the Marion superior court; and it is so ordered.
MYERS, J., concurs. LAIRY, J., concurs in the conclusion reached. HARVEY, J., dissents. See 117 N. E. 650.
LAIRY, J. (concurring).
This appeal calls in question the validity of an act of the General Assembly of this state approved February 28, 1917, which purports to extend to women possessing certain qualifications as to age, citizenship, and residence the right to vote at certain elections and for certain officers therein specified, including the right to vote at elections to be held in cities and towns for the election of municipal officers. The validity of the act is challenged, in so far as it purports to grant to women the right to vote for municipal officers of cities and towns, on the ground that it is in conflict with section 2 of article 2 of our state Constitution.
The decision of the question thus presented involves both a construction and an application of this section of the Constitution. Appellee asserts that the qualifications of voters as fixed therein should be held to be both inclusive and exclusive, including all persons possessing the qualifications named and excluding all others. It is asserted that it restricts the Legislature from imposing additional qualifications so as to deny the right of franchise to any possessing the qualifications named in the section, and that it also restricts the Legislature from extending the right of franchise so as to include persons not possessing all of the qualifications specified therein. Appellee also asserts that the qualifications of voters as fixed by this section apply to all elections by the people, including the elections of municipal officers in cities and towns.
On the other hand, appellant admits that the section in question should be construed as guaranteeing the right of suffrage to those possessing the qualifications designated therein and inhibiting the Legislature from excluding any such persons from the exercise of that right, and they find no fault with the decisions of this court which have so construed it. Morris v. Powell, 125 Ind. 281, 25 N. E. 221, 9 L. R. A. 326; Brewer v. McCleland, 144 Ind. 423, 32 N. E. 299, 17 L. R. A. 845; Quinn v. State, 35 Ind. 485, 9 Am. Rep. 754. They assert, however, that the section does not by its terms expressly exclude all persons not possessing the prescribed qualifications, and that it should not be construed as inhibiting the Legislature from extending the privilege to others who lack some of the qualifications prescribed in the Constitution. They further assert that, the qualifications of electors as stated therein do not apply to voters at municipal elections in cities and towns.
In regard to the construction to be placed on section 2, art. 2, of the Constitution, I concur in the opinion of SPENCER, C. J., in so far as it sustains the position of appellee as hereinbefore stated in this opinion. “In construing a constitution resort may be had to the well–recognized rule of construction contained in the maxim. ‘expressio unius est exclusio ulterius.”’ 6 R. C. L. 49; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272; Ex parte Vallandigham, 1 Wall. 243, 17 L. Ed. 589.
In the case last cited the Supreme Court of the United States placed a construction on that part of section 2, art. 3, of the federal Constitution which confers original jurisdiction on that court, and which reads as follows:
“In all cases affecting ambassadors, other public ministers, and consuls, and those in which *572 a state shall be party, the Supreme Court shall have original jurisdiction.”
It was held that the affirmative words, declaring in what cases the Supreme Court should have jurisdiction, must be construed negatively as to all other cases. Applying the same principle of construction here, it must be held that the provision of the section under consideration, to the effect that citizens of the United States possessing the qualifications designated in the section shall be entitled to vote at all elections not otherwise provided for, must be construed negatively as to all persons not possessing these qualifications. So construed, this section inhibits the Legislature from granting to women, or to any other class of citizens not possessing the qualifications stated therein, the right to vote at any election to which the section applies.
Appellants take the position that, as the Constitution does not in express words inhibit the Legislature from extending the right of suffrage to persons not possessing the qualifications prescribed by section 2 of article 2, the Legislature may extend the privilege in the exercise of the general legislative power granted to it by the Constitution. They cite Beauchamp v. State, 6 Blackf. 299. Speaking of the general grant of legislative power by the Constitution, the court said:
“This is not a grant of special, limited, and enumerated powers, implying a negative of all others, as is the case with the Constitution of the United States. The legislative authority of the state is the right to exercise supreme and sovereign power, subject to no restrictions except those imposed by our own Constitution, by the federal Constitution, and by the laws and treaties made under it.”
The writer is in full accord with the doctrine as announced in the foregoing quotation.
State Constitutions are to be regarded as a restraint of legislative power rather than a grant, and a statute must be upheld unless it conflicts with some constitutional provision which restrains or restricts the Legislature from enacting it. State v. Patterson, 181 Ind. 660, 105 N. E. 228; McComas v. Krug, 81 Ind. 327, 42 Am. Rep. 135.
It is not necessary, however, that such restriction should be stated in the Constitution in express words. It is sufficient if the restriction arises by necessary implication from a proper construction of the instrument or of any of its provisions. Section 2 of article 2 of the Constitution, when construed as heretofore indicated, has the effect of restraining the Legislature from extending to women the right to vote at municipal elections in cities and towns, unless appellants are correct in saying that the qualifications of voters prescribed in this section do not apply to voters at municipal elections, for the reason that such qualifications are applicable under the wording of the section only to elections not otherwise provided for in the Constitution, whereas it is claimed that municipal elections do not belong to this class, but do belong to a class otherwise provided for in the Constitution, at which class of elections no special qualifications for voters are provided. As to such elections it is claimed that the Legislature has the power to prescribe qualifications for voters regardless of those qualifications contained in section 2 of article 2 of the Constitution.
In support of the proposition just stated the attention of the court is called to the fact that, during the period of time that the state government was conducted under the Constitution of 1816, the Legislature assumed to designate the qualifications of legal voters in towns, and that the qualifications thus prescribed differed from the qualifications of voters as designated by section 1, art. 6, of our first Constitution. Within that period numerous towns were incorporated by special acts of the Legislature, which acts fixed the qualifications of voters in such towns differing in most instances from the qualifications of voters as fixed in the then existing Constitution. Acts 1820, p. 42, Town of Charlestown; Acts 1828, p. 30, § 2, Town of Corydon; Local Laws 1835–36, p. 33, § 4, Town of Vincennes. Section 1, art. 6, of the Constitution of 1816 was as follows:
“In all elections, not otherwise provided for by this Constitution, every white male citizen of the United States, of the age of twenty–one years and upwards, who has resided in the state one year immediately preceding such election, shall be entitled to vote in the county where he resides; except such as shall be enlisted in the army of the United States or their allies.”
It will be observed that the only qualifications required of a person in order to fit him to exercise the right of franchise were that he should be a male person, that he should be white, that he should be a citizen of the United States, and that he should be of the age of 21 years or upward, and that the only condition prerequisite to entitle such a person to vote in the county of residence was that he must have resided in the state for 1 year immediately preceding the election. No condition was imposed by the section in respect to residence for any definite time within any territory of less extent than the state, and the territory within which the right to vote might be exercised was not limited to any extent less than the county in which the person offering to vote resided. In this connection a distinction is recognized by the writer between qualifications which refer to qualities inherent in the individuality of the voter regarded as fitting him to the exercise of such right and conditions prerequisite to the exercise of the right to vote in a particular place or locality; but, as no such distinction has been observed by courts generally in this respect, and as residence has been universally regarded as a qualification, it will be so treated in the discussion which follows.
It seems clear that qualifications thus fixed *573 by the Constitution could not, with reason, be held to apply to the voters of towns organized within any county of the state. If no other qualifications for voters in towns could have been provided by the Legislature, every white male citizen of the United States of the age of 21 years and upward, residing within the county, could have qualified as a voter at every election of every town within the county, if he had resided in the state for 1 year immediately preceding such election. It thus appearing that the provisions of section 1, art. 6, with reference to the qualifications of voters could not, with consistency, be held to apply to town elections, the Legislature prescribed a residence within the limits of the town for some fixed period as a prerequisite of the right to vote at such an election, and also fixed such other qualifications as it deemed proper and expedient. The conclusion necessarily follows that the section of the 1816 Constitution under consideration was not intended as a limitation of the power of the Legislature to fix the qualifications of voters at town elections held for municipal purposes. It could not, with reason, be held to have such an effect, and it was never given such an effect by any construction placed upon it either by the Legislature or the courts.
By article 6, § 1, the Constitution of 1816, two classes of elections were recognized: First, elections not otherwise provided for in the Constitution; and, second, elections which were otherwise provided for in the Constitution. The qualifications of voters at all elections falling within the first class were fixed by this section of the Constitution, but the qualifications of voters at elections falling within the second class were not so specified, and were therefore left to the Legislature. In assuming to fix the qualifications of voters in town elections the Legislature placed a construction on the Constitution to the effect that such elections were otherwise provided for by the Constitution, and therefore fell within the second class mentioned. In searching the Constitution for some provision upon which such a construction could be based, we find section 15, art. 11, reading as follows:
“All towns and township officers shall be appointed in such manner as shall be directed by law”
—and at the end of section 8, art. 4, the former part of which provides that certain officers shall be appointed by the Governor, we find this provision:
“And all offices which may be created by the General Assembly shall be filled in such manner as may be directed by law.”
If the election of officers for towns were otherwise provided for in the Constitution of 1816, the authority for such a claim must be found in one or the other or in both of the provisions quoted, and it must be assumed that the Legislature, in providing for the election of such officers and in fixing the qualifications of voters at such elections, acted under the authority therein contained, with the acquiescence of the people, during the entire period in which the state government was administered under the Constitution of 1816.
In 1851 the people of the state adopted a new Constitution. Section 2, art. 2, of this Constitution, fixing the qualifications of voters, was as follows:
“In all elections not otherwise provided for by this Constitution, every white male citizen of the United States, of the age of twenty–one years and upward, who shall have resided in the state during the six months immediately preceding such election; and every white male of foreign birth of the age of twenty–one years and upwards, who shall have resided in the United States one year, and shall have resided in this state during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States, conformably to the laws *** on the subject of naturalization, shall be entitled to vote in the township or precinct where he may reside.”
The qualifications of voters as fixed by the Constitution of 1816 were changed by this section of the new Constitution. By the old Constitution only white male citizens of the United States were permitted to exercise the franchise, but by this section the right of franchise was extended so as to include white males of foreign birth who had declared their intention to become citizens of the United States in conformity with the laws on the subject of naturalization and who possessed the other qualifications fixed by this section. The requirement as to residence within the state was shortened from one year, as provided by the first Constitution, to six months, as provided by this section, but no definite period of residence within any municipal subdivision of the state was required as a prerequisite to the right to vote. Under the Constitution of 1816, a qualified voter might exercise his right of franchise anywhere within the county of his residence, but by this section his right to vote was limited to the township or precinct in which he resided.
This section, like the section of the Constitution of 1816 on the same subject, recognized two classes of elections: First, elections not otherwise provided for in the Constitution, the voters at which were required to possess the qualifications specified therein; and, second, elections otherwise provided for in the Constitution. The voters at elections of the second class were not required to possess the qualifications fixed by this section, for the reason that those qualifications were expressly limited to voters at “all elections not otherwise provided for in this Constitution.” Section 15 of article 11, before quoted, providing for the appointment of officers of townships and towns, and the part of section 8, article 4, also quoted with reference to the manner in which offices created by the Legislature should be filled, were omitted from the new Constitution, and *574 the following provisions in respect to the selection of officers were embodied therein:
“Such other county and township officers as may be necessary shall be elected or appointed in such manner as may be prescribed by law.” Article 6, § 3.
“All officers whose appointments are not otherwise provided for in this Constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law.” Article 15, § 1.
As before stated, the provisions of section 2, art. 2, supra, permitted an elector possessing the qualifications therein designated to vote anywhere within the township or precinct in which he resided. If elections held in towns for municipal purposes belonged to the first class of elections recognized by this section as hereinbefore designated, then such an elector living any place in a township or precinct which contained an incorporated town would be qualified to vote at all elections held within such town for municipal purposes, even though he did not live in such town, but lived in a remote part of the township.
After the adoption of the Constitution of 1851, the Legislature, by an act approved March 10, 1852, provided that:
“In all municipal elections in this state, no other or different qualifications shall be required of voters, than that which shall entitle them to vote at any township, county or state election, except that their residence shall be in the ward of the city or town where such election shall be holden.” Acts 1852, p. 124.
The effect of this act was to produce uniformity in the qualifications of voters in all cities and towns. The qualifications adopted for the voters of such towns were the same as those prescribed by section 2, art. 2 of the Constitution except the requirement of residence in the ward of the town in which he offered to vote. The exception was intended to exclude from participation in municipal elections all qualified voters residing outside of the corporate limits of the city or town, but within the township or precinct in which it was located, who, in the absence of such an exception would have been entitled to vote at any election in the township or precinct.
It thus appears that in fixing the qualifications of voters in cities and towns the Legislature imposed a residence qualification not required to qualify a voter under the provisions of article 2, § 2, of the Constitution of 1851. By so doing the Legislature placed a construction on the section of the new Constitution hereinbefore set out, to the effect that city and town elections fell within the class of elections otherwise provided for in the Constitution, as before indicated in this opinion, and that the qualifications for voters as fixed in section 2 of article 2, did not apply to voters at such elections. Upon this theory the Legislature provided for the election of officers of such municipalities under the provisions of section 1, art. 15, of that Constitution by providing an electorate for such officers and fixing the qualifications of the voters. The constitutionality of this statute was never brought before the highest court of this state for determination, thus indicating an acquiescence on the part of the people generally in the construction thus placed on the Constitution by the Legislature.
No further change was made in our Constitution on the subject of the qualifications of voters until the adoption in 1881 of amended section 2 of article 2, which was first proposed by the Legislature of 1877. From the time of the adoption of the Constitution of 1851 to the time this amendment was proposed, the people of the state had manifested a desire, as expressed through their Legislatures, of conforming the qualification of voters in city and town elections as nearly as practical to the qualifications prescribed for voters in article 2, § 2, of that instrument. As a result, the qualifications of voters at municipal elections in cities and towns were identical with the qualifications prescribed by that section, except that voters at such municipal elections were required to live in the ward in which they offered to vote. It required only a slight change of the qualifications of voters as fixed by article 2, § 2, of the Constitution of 1851 to make them identical with the qualifications of voters at city and town elections. It required only that the section in question be amended by adding the requirement that the voter should reside in the ward in which he offered to vote. The addition of this requirement to the qualifications of voters as then fixed by the Constitution would make them conform in all respects to the wishes of the people in regard to the qualifications of voters at municipal elections in cities and towns as expressed by their representatives in the General Assembly by legislative enactments on the subject. In order to accomplish this result, the Legislature which proposed the amendment under consideration embodied therein a requirement that the voter should reside in the ward or precinct for 30 days immediately preceding the election. The ward exists only as a political subdivision of a city or town, and the word could have been employed in this amendment for no other purpose than to make the qualifications of voters, as specified therein, applicable in all respects to municipal elections, and to bring those elections within the class to which such qualifications apply. There can be no doubt that other reasons existed for the amendment of this section, one of which was the prevention of illegal and fraudulent voting, but this would have been as effectually restrained without requiring a residence in a ward. Governor's Message of January 4, 1877. The resolution proposing the amendment as introduced in the Senate required only a residence in the township or precinct. If it had been adopted and approved in this form, it would have had the effect of requiring voters to reside in a territory of small limits for a fixed period immediately *575 preceding an election, and in this way it would have aided in the detection and prevention of illegal and fraudulent voting in accordance with the recommendations of the Governor as contained in his message, but it would not have disqualified a voter residing outside the corporate limits of a city or town from voting at a municipal election of a city or town located wholly or partially within the precinct of his residence. This result could be accomplished only by a requirement that the voter should live in a ward of the town, and to accomplish this end the resolution was amended so as to require a residence in the ward. By the adoption of this amendment, the people expressed their will, to the effect that the qualifications of voters as fixed therein should apply to elections held in cities and towns for municipal purposes, thus crystallizing and perpetuating their will in this respect in the supreme law of the state, and thereby placing it beyond the reach of the Legislature until such time as the sovereign people may see fit to express a different will by adopting a new Constitution or by amending the one now in force.
In reaching this conclusion, consideration has been given to the constitutional and legislative history of the state on the subject. In the light of such history leading up to the proposal and adoption of the amendment under consideration, and in view of the conditions existing at the time and the circumstances attendant upon the proposal and adoption of that amendment, I am convinced beyond a reasonable doubt that one of its purposes was to make the qualifications of voters as fixed therein apply to municipal elections. To my mind, an express declaration therein, to the effect that the qualifications of voters as fixed in the amendment should apply to voters at municipal elections in cities and towns, could not have been more certainly indicative of the will of the people in this regard than was the additional requirement of residence in the ward inserted with the unequivocal purpose and intention of making the qualifications so prescribed apply to voters at such municipal elections.
Having no reasonable doubt that the amendment of section 2 of article 2 of the Constitution has the effect heretofore indicated, I am prepared to hold that, in so far as the act of the Legislature here under consideration attempts to confer on women the right to vote for municipal officers in cities and towns, the same is in conflict with that section of the Constitution as amended in 1881. I therefore concur in the conclusion reached in the opinion by SPENCER, C. J., for the reasons herein stated.
All Citations
187 Ind. 108, 117 N.E. 565| End of Document | © 2024 Thomson Reuters. No claim to original U.S. Government Works. |