*126Concurring Opinion.
Lairy, J.— 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 *127court which, have so construed it. Morris v. Powell (1890), 125 Ind. 281, 25 N. E. 221, 9 L. R. A. 326; Brewer v. McCleland (1895), 144 Ind. 423, 32 N. E. 299, 17 L. R. A. 845; Quinn v. State (1871), 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 b,e 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 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 *128possessing 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 those 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 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*129plication from a proper construction of the instrument or of any of its provisions. Article 2, §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 Art. 2, §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 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.
*130Section 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 twenty-one years or upward, and that the only condition. prerequisite to entitle such a person to vote in the county of his residence was that he must have resided in the state for one 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 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 *131could have been provided by the legislature, every white male citizen of the United States of the age of twenty-one 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 one year immediately preceding such election. It thus appearing that the provisions of Art. 6, §1, 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 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 *132a construction could be based, we find Art. 11, §15, reading as follows: “All town and township officers shall be appointed in such manner as is provided by law,” and at the end of §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. 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 *133Constitution. 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 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*134fleers as may be necessary shall be elected or appointed in such manner as may be prescribed by law. Art. 6, §3. All officers, whose appointment is not otherwise provided for in this Constitution, shall be chosen in such manner as now is or hereafter may be prescribed by law. Art. 15, §1.
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, *135in 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 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 *136voters 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 Art. 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 thirty 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 existéd 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, 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 preceding an *137election 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 *138requirement 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 §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.