187 Ind. 108 | Ind. | 1917
Lead Opinion
— 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 élections. Acts 1917 p. 73. It also passed an act concerning the registration of voters generally, of which §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. Subsequently 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
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 Art. 2, §2, of the Constitution. The inquiry thus suggested, although of vital importance, is purely one of constitutional interpretation, and,
As appellants concede, the above provisiones 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 (1912), 178 Ind. 330, 333,
Reference is also made to the fact that from 1851 until its amendment in 1881, the Constitution of Indiana contained a provision (Art. 2, §5) that “No negro or mulatto shall have the right of suffrage;” although during that same period Art. 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 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 Art. 2, §5, as an added precaution, indicative of the public
As' denying force to the proposition just stated, we are referred to the decision in Scown v. Czarnecki (1914), 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, supra, held to be constitutional on the theory, as stated at page 312 of the opinion, 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 (1893), 144 Ill. 68, 33 N. E. 191, 19 L. R. A. 110, and People, ex rel. v. English, supra, 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 the
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 de-' dared 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 shall 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 [1896], 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, January 4, 1877). Various proposals were made to amend the
The principle of legislative interpretation, in order to be properly applicable to the issues in this case, must have been based on acts 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 Art. 2, §2, of the Constitution, in itself, defines the electorate which
This conclusion requires a full affirmance of the judgment of the Marion Superior Court and it is so ordered.
Concurrence Opinion
— 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 Art. 2, §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 one 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
In regard to the construction to be placed on Art. 2, §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 (1868), 58 Pa. St. 338, 98 Am. Dec. 272; Ex Parte Vallandigham (1863), 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 Art. 3, §2, 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 a State shall be a 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
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 Art. 2, §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 (1842), 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 this 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 (1913), 181 Ind. 660, 105 N. E. 228; McComas v. Krug (1882), 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 im
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 Art. 6, §1, 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 1836 p. 32, §2, Town of Vincennes.
It seems clear that qualifications thus fixed 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
By Art. 6, §1, of 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
In 1851 the people of the state adopted a new Constitution. Article 2, §2, of this Constitution fixing the qualifications of voters was as follows: “In all elections not otherwise provided for in this Constitution 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 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
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 Art. 11, before quoted, providing for the appointment of-officers of townships and towns, and the part of §8, Art. 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 the following provisions in respect to the selection of officers were embodied therein: Such other county and township of
As before stated, the provisions of Art. 2, §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 thqse prescribed by Art. 2, §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,
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 Art. 2, §2, of the Constitution of 1851. By so doing the legislature placed a construction on the section of the new Constitution herein-before 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 Art. 2, §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 Art. 15, §1, 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 §2 of Art. 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 Art. 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
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
Having no reasonable doubt that the amendment of §2 of Art. 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.
Dissenting Opinion
Dissenting Opinion.
— I agree with my associate judges that the trial court had jurisdiction of this cause. I cannot agree, however, that the general assembly lacked power to pass the act of 1917, granting to women the right of suffrage at town and.city elections.
During the sixty-five' years, between the adoption, in 1816, of the first Indiana Constitution, and 1881, the general assembly, by grant of the people, expressed in the Constitution of 1816 and that of 1851, had and exercised the power to prescribe who should be entitled to vote at municipal elections — at elections in towns during the early years of the state’s existence — there being then no cities, and in towns and cities later. The general assembly still has that power, unless the amendment of the Constitution in 1881 withdrew that power. The foregoing statements, in my opinion, are not contrary to a fair inference to be drawn from the prevailing opinion in this case, and are in accord on this proposition with the concurring opinion.
The amendment of 1881 did not, in my opinion, de
In solving this law question, we find that the people, in the Constitution of 1816, created two classes of elections; and it is sufficient, and directly to the point in this case, to describe these two classes as follows: First, elections at which those may vote who possess qualifications to be prescribed by the legislature, under power granted to the legislature by the people in the Constitution. Second, elections at which those may vote who possess qualifications prescribed in the Constitution itself.
For convenience and brevity and for the purposes only of this case, the first class will hereinafter be called “town” or “town and city” elections; and the second class will be termed state elections; the latter are sometimes also designated as “general elections.” These designations are not to be taken as exactly correct, as each class includes other elections, but these designations serve well the purpose of distinction herein to be made between the two classes.
To the first class belong town and city elections. By the Constitution, town and city elections are thus divorced from the qualifications prescribed in the Constitution for voters at state elections; and divorced from all- rules and decisions which have a bearing on the question whether the general assembly can add to or take
The people having’ specifically provided in the Constitution how certain officers shall be selected, including in this class officers of towns and townships, the people further say in the Constitution that at all. elections “not” thus “otherwise provided for,” the voters shall be males, twenty-one years of age, who have resided within certain geographical areas for a designated time.
The language of the Constitution of 1816 on this subject was, Art. 11, §15: “All town and township officers shall be appointed in such manner as shall be directed by law.” Art. 6, §1: “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 this state one year immediately preceding such election, shall be entitled to vote in the county where he resides.” It is thus made clear by the Constitution itself that the selection of town officers is “otherwise provided” for in the Constitution, because the Constitution says that they “shall be .appointed in such manner as directed by law,” which, of.course, means, as shall be directed by the legislature; and inasmuch as the selection of town officers is thus “otherwise provided for,” elections of town officers are not in the class of elections not otherwise provided for. An expression of this thought in another form may aid: The Constitution provides that at all elections voters shall have the certain, named and described qualifications above mentioned. The Constitution also, however, expressly excepts from the elections above named — that is, from “all” elections — certain elections “otherwise provided for,” at which voters need not have the certain, named qualifications applying to “all” other elections, and thus the Constitution is to be construed as if it read, — except as otherwise
Obvious reasons existed then, and exist now, for each and every provision in the Constitution as to the agency for the selection of officers, and a very obvious and special reason existed for the retention by the people of the right to provide by legislation for self-government of towns. A reason for not fixing in the Constitution the qualifications of voters at town and city elections is that an effort to amend the Constitution consumes much time, and is fraught with many difficulties; whereas the people can, through the legislature, more easily and readily express their desires, and more frequently change that which is found inapt or undesirable; and by delegating to the legislature authority to say who shall vote at town elections, the people recognized and asserted, to that extent, a principle of local self-government, which has existed and been fostered by the people since long prior to the organization of the state. They retained near at hand this means of changing the electorate, as experience and development might dictate.
Speaking generally of the subject of local self-government, Judge Elliott, whose opinions have always commanded the highest respect and consideration, says in State, ex rel. v. Denny, Mayor (1889), 118 Ind. 382, 401, 21 N. E. 252, 4 L. R. A. 79: “It needed no constitutional declaration to invest the people with this power, ■but it does require a constitutional provision to take it from them in whole or in part. This inherent power in- - eludes the right of the people to choose their rulers. An ■essential part of this inherent power, as it has been asserted and exercised for many years, is the right of the electors of a locality to choose their own immediate
A construction consistent with the idea that no qualifications for voters at town elections were fixed in the Constitution, and that the fixing thereof was committed to the general assembly, was at once placed, by the legislature, upon the Constitution of 1816. The legislature, acting on the theory that it was authorized so'to do by Art. 11, §15, of the Constitution, to wit: “All town and township officers shall be appointed in such manner as may be directed by law,” passed in 1817 a general law, as follows: “Sec. 1. Be it enacted by the General Assembly of the State of Indiana, That hereafter whenever the inhabitants of any town in this state wish .to become incorporated, for the better regulation of their internal police, it shall be lawful for the qualified voters of such town, who shall have resided six months therein, and pursued any trade or occupation during such time, being also residents, or who shall be
“Sec. 3. Whenever the qualified voters of any town shall havff decided in the manner aforesaid, that they wish to become an incorporated body, they may, on the next succeeding Monday, and annually thereafter, on the same day, choose by ballot, five freeholders as trustees.” Acts 1818 p. 373.
This law adds several qualifications not required by the Constitution, and throws a light which has not been extinguished to this day, though sometimes dimmed, revealing the thought then in the minds of the people, that the constitutional qualifications did not define who should vote at town elections “for the better regulation of their internal police.” The term “internal police,” as here used, is defined as “The whole system of internal government of a city or town.” New Standard Dictionary.
In addition to the above general act for the incorporation of towns, the legislature also, during the entire existence of the Constitution of 1816, authorized the incorporation of many towns by special act, or charter, and in each special charter, the legislature described and defined who should vote at elections of the town. The qualifications of voters thus described differ greatly from those named and fixed in the Constitution for other elections, and differ greatly as between the towns themselves ; for instance:
(1820) Charlestown — “Every person resident in the corporation aforesaid, having a legal or equitable title to real property therein, shall be entitled to vote for trustees.” Acts 1820 p. 42.
(1823) Lawrenceburgh — “the freemen of the town * * *.” Acts 1823 p. 20. ,
(1828) Corydon — “Every person resident in the corporation, of the age of twenty-one years and upwards, and every person who is a qualified voter*144 and resident of the county, having a. legal or equitable title to property therein shall be entitled to vote.” Acts 1828 p. 30.
(1832) New Albany — “Each white male inhabitant of said town, sane, and not a pauper, being a citizen of the United States, and twenty-one years of age and upwards, who shall have the qualifications of a voter for state officers, and shall have resided within the bounds of the corporation of said town, six months next preceding such election, shall be entitled to vote.” Acts 1832 p. 136.
(1886) Vincennes — “Each white male citizen of said Borough of" twenty-one years and upwards, being either freeholders or householders in said borough.”. Local Laws 1836 p. 32.
(1836) New Albany — “Every qualified elector of this state, not a pauper, who shall have resided in the town for six months, next preceding election shall be entitled to vote.” Local Laws 1836 p. 76.
(1838) New Boston — Three months’ residence. Local Laws 1838 p. 53:
(1838) La Porte — “All free white male citizens of this State, of the age of twenty-one years and upwards, residing within the limits of this town, assessed for and having paid a town tax.” Local Laws 1838 p. 59.
(1838) Greensboro — Qualifications to vote for member of legislature. “Provided, however, that this shall not be construed as to prevent any citizen freeholder from voting at any election after he shall have paid a public corporation tax,” Local Laws 1838 p. 85.
(1846) Evansville — -“Every free white male citizen of the age of twenty-one years, who has resided in the State one year, and in said city six months, and in the ward in which he offers his vote one month next preceding such election, shall be entitled to vote.” Local Laws 1847 pp. 4, 5.
(1847) ' Indianapolis — “No person shall be qualified to vote for mayor and councilman who has not resided for the last six months preceding the election in the city, and if not a householder, who has not resided for the' last twenty days preceding the election, in the ward in which he may offer his vote, and who shall not be a citizen of the State of Indiana.” §3, Local Laws 1847 p. 57.
I am not unmindful of the fact that it is argued herein that in placing in the Constitution the provision: “All town and township officers shall be appointed in such manner as shall be directed by law,” the people used the word “appointed” in its narrow sense, excluding elections, and it is argued that even though the word “appointed” be broad enough to include elections, the people used the word “manner” as referring to the mode, or system of conducting elections, rather than to the agency making the selection. Decisions rendered in other states have been cited in this action in support of such argument. Such decisions, and the argument, are, in my opinion, of no weight, as against the construction of such words made from 1816 to 1851 by the people of Indiana, and by the general assembly of Indiana, to 'the effect that the word “appointed” is broad enough to include “election,” and that the word “manner” refers to agency of choice, and that the general assembly had the power to say whether such town officers should be appointed and, if so, by whom, or that they should be elected and, if elected, by whom. The people of the state were justified, and this court is justified in construing the word “appoint” to be broad enough to cover election, since it was used in this connection by the Supreme Court of the United States in McPherson
We find a further construction to the same effect in the Constitution of 1851. By the new Constitution the long-continued construction of the old was confirmed and settled as correct by the express declaration of the people, as follows:
Art. 15, §1: “All officers whose appointment is not otherwise provided for in this Constitution shall be chosen in such manner as now is, or as hereafter may be prescribed by law,” and by the further declaration:
(Constitution, Schedule §4) “All acts of incorporation for municipal purposes shall continue in force under this Constitution until such time as the General Assembly shall, in its discretion, modify or repeal the same.” In this connection, it should be remembered that each of said acts of town incorporation then named the qualification of voters in such corporation. The continued propriety of local self-government was thus again recognized and asserted in 1851, and more positively asserted than in 1816. The Constitution of 1816 merely granted authority to the assembly to- provide by law for elections in “towns'and townships;” that of'1851, in the above quoted language, approved and continued in force the specific acts done by virtue of such authority, and continued the authority. The people in the Constitution of 1851 also preserved the distinction between the two classes of election herein noted; and did so in the-same words used in the Constitution of 1816, to wit: “In all elections not otherwise provided for by this Constitution,'every white male citizen * * *” and this distinction is in the Constitution today.
It had, however, been found by the people that the great variety of qualifications of voters prescribed by law for each town caused confusion, and that uniformity was more desirable; therefore, the legislature,
The general 'assembly, at several later sessions before 1881, repeatedly asserted its power to designate electors for city and town elections. At some sessions the assembly deemed the qualifications required by the Constitution at state elections to be sufficient, and at other sessions deemed additional qualifications proper and necessary, as, for instance, in 1867 (Acts 1867 p. 113) the general assembly required a residence of twenty days in the city or ward to entitle one to vote at city
The legislature at several sessions, after the amendment of 1881, asserted its right to prescribe who should vote at town and city elections. The act of 1905 recognizes qualifications prescribed by the general assembly in addition to those prescribed'in the Constitution. It reads: “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.” (Acts 1905, §230, p. 383, §8884 Burns 1914.) If the amendment of 1881 covered the matter into the Constitution, why should the legislature further treat of the subject? Evidently the assembly, in its sessions of 1877 and 1879, did not intend that the amendment it then proposed should destroy its power to later say who should vote at town and city elections ; at least it has denied such intent by its later acts
The prevailing opinion, and the concurring opinion, draw from the use of the word “ward,” and other facts stated, one inference. I draw from the word “ward” and substantially the same facts an entirely different inference; and I submit that the latter is at least as well founded and reasonable as the former. The rule, under such circumstances, is that the inference which will sustain the law shall be indulged. Further, if doubt existed in my mind as to which inference should be drawn, that doubt should be resolved in favor of the validity of the law, if this can be reasonably done. “The power to declare a statute unconstitutional is one of the highest intrusted to a judicial tribunal, and is only to be exercised with the greatest care, and only
It is argued by those opposed to the law that the qualifications fixed in the Constitution not only include all who shall vote at any and all elections but exclude all others as voters. This argument is of little force when we find in the same section an exception stating in effect that the. qualifications do not apply to elections “otherwise provided for,” and find elsewhere in the Constitution that the election here involved is otherwise provided for.
It is argued by those favoring the law that the Constitution only guarantees that males, twenty-one years of age, who have resided in the designated territory for a named period, may vote. In other words, that this guaranteed right shall not by legislation be taken from them; but that the provision is not meant to be exclusive of all others as voters; and, hence, the general assembly may provide that others may vote. This argument would be pertinent had the general assembly attempted to change the qualifications of voters for Governor or secretary of state, or any office created by the Constitution, as the Constitution does not say that these officers are in the class otherwise provided for, but does provide expressly who shall vote for these officers. The debate then would be: What power has the legislature over qualifications fixed by the Constitution? For the reasons stated, my opinion is not in the slightest conflict with the decision in Gougar v. Timberlake (1896), 148 Ind. 38, 46 N. E. 339, 37 L. R. A. 644, 62 Am. St. 487, as in that case Mrs. Gougar demanded a right to vote for officers the choice of whom was, by the Consti-'
I agree with my associates that the assembly has power to provide that women may vote at school elections. In fact, the assembly has in several acts so provided. I do not agree, however, that the provision to that effect in the act of 1917 is so interwoven with the city election provision that it must fail with the latter. In my opinion the act of 1917 is severable as to each class of officers named-therein, as if the provision for each class had been made by a separate act. If, therefore, the act is invalid as to any one class, such invalidity does not destroy the act as to other classes.
In my opinion, the judgment appealed from should have been reversed.
Note. — Reported in 117 N. E. 565, 650.- Validity of a statute giving women the right to vote, Ann. Cas. 1915A 802.