Board of Election Commissioners v. Knight

Dissenting Opinion.

Harvey, J.

— 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*139prive the general assembly of that power, and, therefore, the general assembly in 1917, had power, granted by the people through the Constitution, to pass the act in question. Whether the general assembly should or should not prescribe any such qualifications for voters at town and city elections is for the exclusive determination of the assembly, if authority so to do exists in the assembly. Thus the question for determination is not whether it is right, or good policy, for women to vote at town and city elections,- but is simply whether the legislature has power to provide that women may vote.

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 *140from the qualifications named in the Constitution for state elections.

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 *141herein provided for, electors shall possess the certain, named and described qualifications; and as town elections are otherwise provided for, they are within the exception, and to them the designated qualifications do not apply.

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 *142officers. In my judgment our Constitution does not take away this right, but leaves it in the people, undiminished and undisturbed. There it has resided for ages, and there it is to reside until the people shall, in due course, change their organic law.” Judge Elliott, in the decision above cited, was distinguishing between appointment of city officers by the general assembly and the election thereof by the people; but this distinction serves to emphasize the fact that the people have jealously guarded this right, and that such was their purpose in retaining within easy control the matter of naming the electorate for towns. In this well-expressed principle of government we find the reason why the people, in the Constitution of 1816, reserved to themselves the right to say, from time to time, by and through their representatives in the legislature, who should vote at town and township elections and why they did not fix, in a large measure, unalterably, such qualifications in the Constitution.

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 *143the owner of any freehold property in said town,” to assemble and vote whether they shall be incorporated.

“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 *144and 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.

*145Many others might be quoted. This long-continued and consistent construction of the Constitution to the effect that the people thereby delegated to thé legislature power to name the qualifications of voters at town elections, was mot at any time, or in any manner, questioned by the people, by any branch of the state government, or by any litigation to which my attention has been called, or which I have found, and it thus has the force of positive law. Hovey, Governor, v. State, ex rel. (1889), 119 Ind. 886, 388, 21 N. E. 890.

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 *146v. Blacker (1892), 146 U. S. 1, 27, 18 Sup. Ct. 3, 36 L. Ed. 869.

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, *147acting within the power granted by the Constitution of 1851, at its first session after the adoption of the Constitution of 1851, enacted that “in all municipal elections under town and city charters in this State, no other qualifications shall be hereafter required of any voter than such as is made necessary under the constitution of the State, except that the voter shall reside in the ward or district where he may offer to vote.” 1 R. S. 1852 p. 373. At that time, 1852, the Constitution required for elections not otherwise provided for, i. e., state elections, as herein termed, only that a person should reside in the state six months to be entitled to vote in his township or precinct. , The legislature did not deem this sufficient for protection of the ballot at town and city elections, and again exercised its power to provide for local self-government by requiring at town and city elections the voter should reside in a ward or district of the municipality. This requirement of residence in a ward was provided by* the legislature for town and city elections because, in the absence of such a restriction, any person who had resided in the state six months, and who had just moved into the township, or precinct — precincts frequently covering the whole township — might, so far as the constitutional restrictions were concerned, vote at an election in any town located within the township or precinct, although he did not reside in the town.

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 *148or town, elections. This requirement was not in the Constitution. Although many sections of the town and city election law of 1867, last above mentioned, were repealed in 1869, the above requirement of twenty days’ residence was by the legislature continued in force. This act relating to residence in a ward at municipal elections did not answer another complaint, however, which was prevalent at the time as to state elections, which complaint grew out of the fact that voters 'at state elections were not restricted by any smaller territorial area than the' township or precinct, and this furnished opportunity for floating voters to repeat at state elections. This was the situation ten years later when Governor Hendricks in his message to the assembly of 1877 recommended that voting precincts be made so numerous and so small that all who offered to vote might be known, and that a reasonable period of residence in the precinct be prescribed, and in this message a residence of sixty days in the precinct was suggested. At that time precincts applicable to state elections were large, frequently as large as townships, and no period of residence therein was required. At that time precincts applicable to town and city elections were as small as wards, or smaller, and a period of residence therein was required. It is a fair inference, from this and other facts to be noted herein, that the Governor referred to state elections rather than town and city elections. Because of this recommendation of the Governor, the general assembly proposed, in 1877, an amendment to the Constitution, to be submitted to the people, adding to the qualifications of voters therein prescribed that voters should reside in the township sixty days and in the ward, or precinct, thirty days, and thus be entitled to vote in the precinct. This resolution was also passed by the session of 1879, was ratified by the peopl and became effective as an amendment in 1881. *149Prior to this amendment the word “ward” had not appeared in the Constitution. It is argued that as a “ward” is necessarily a town and city subdivision, the use of this word, or the mention of the- subdivision, in the Constitution, when considered with the desire to so amend the Constitution as to avoid abuses of the ballot, imports an intention on the part of the people te bring town and city elections into the class of elections “not otherwise provided for” in the Constitution; or, to state the matter in another form, imports an intention to thus destroy and annul the provision otherwise made in the Constitution for town and city elections, and thus take from the general assembly a power it had possessed and exercised for sixty-five years to provide for local self-government. An amendment of the town and city election laws would have cured any defect' therein, but none of the kind existed. An amendment -of the Constitution was necessary to cure a defect as to elections “not otherwise provided for,” — state elections. I do not find in the message of the Governor any suggestion that the right of local self-government, preserved for so many years in the Constitution, should be thus limited. The legislature had protected the ballot at town and city elections by prescribing small areas and a period of residence. The Governor and the legislature, in proposing the amendment, must have had in mind elections not so protected. As state elections covered and included the territory within all cities and towns of the state, it was evidently found convenient, in amending the Constitution, for the protection of state elections, to designate wards and precincts in towns and cities as limitations of voting areas to be added in the Constitution for voters at state elections, — for voters at elections “not otherwise provided for.” The discussions, in the legislature at the session of 1877, of this proposed amendment to the Constitution were not preserved, or printed in any *150report. The discussions of the same resolution at the session of 1879 are preserved, to some extent, in the brevier report of that session, and a reading of this report discloses no discussion whatever of a proposition to provide how and by whom town and city officers, should be elected. Had such a radical change been intended, had the people realized that by the amendment of 1881, by the use therein of the word “ward,” they were removing from themselves one step farther, a right they had preserved to their direct representatives in the assembly, discussion and strong opposition would have developed. Had the people determined that it were better that the qualifications of electors at town and city elections be fixed, and not readily changed, they would not have left the matter to a mere inference from the word “ward,” but would have used language fully and clearly expressing the idea that the amendment should apply to town and city elections, and would have expressly withdrawn town and city elections from the class otherwise provided for.

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 *151naming such electors. The ambiguity and need for construction of the Constitution, in this case suggested, continued until 1881. The amendment then made has, judging by the good-faith differences of opinion in this case, not removed, but has intensified the ambiguity. The general assembly has continued since 1881 to assert who shall vote at town and city elections, and a statute to that effect was in force at the time of the adoption of the act in question. Thus we have a long-continued, practical exposition of the meaning of the Constitution and of its amendment. This exposition has been so uniform, and is so persistent, that it removes all ambiguity, and establishes, or demonstrates, the existence of a principle, and that principle, local self-government, underlies the whole of this cause. Consistent with that principle, the general assembly has deemed it best that women shall vote at local elections. “If we find a principle established by long-continued practice, we must yield to it, unless we are satisfied that it is repugnant to the plain words of the Constitution.” Hovey, Governor, v. State, ex rel., supra; French v. State, ex rel. (1895), 141 Ind. 618, 41 N. E. 2, 29 L. R. A. 113.

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 *152when there is no doubt of the unconstitutionality of the law. If there is any doubt in the mind of the court as to the constitutionality of a law, it must be resolved in favor of its validity.” City of Indianapolis v. Navin (1898), 151 Ind. 139, 145, 47 N.E. 525, 51 N. E. 80, 41 L. R. A. 337, and citations therein.

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-' *153tution, committed to voters whose qualifications were fixed in the Constitution; and if it were conceded that the general assembly had power to permit others to vote> at such elections, the assembly had not made any such provision. This opinion is also in entire accord with the general principles and rules of government announced in Ellingham v. Dye (1912), 178 Ind. 336, 99 N. E. 1, 99 N. E. 29, 231 U. S. 205, 58 L. Ed. 206, Ann. Cas. 1915C 200; and in Bennett v. Jackson (1917), 186 Ind. 533, 116 N. E. 921.

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.