ON PETITION FOR REHEARING The appellee McAfee has filed a petition for rehearing, and he calls our particular attention to § 8 of Article 2 of 4, 5. the State Constitution, which provides that:
"The General Assembly shall have power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime."
This provision is not self-executing, but it has been construed as authorizing the Legislature to enact a statute prohibiting persons convicted of infamous crimes from holding public office, as well as denying such persons the right of suffrage. Crampton v. O'Mara (1923), 193 Ind. 551, 139 N.E. 360. We perceive no reason why such a statute would not be applicable to members of the General Assembly as well as all other public officers.
If the Legislature has properly added to the constitutional qualifications for membership in the General Assembly, and we think it has, then the question arises as to what tribunal 6. shall determine controversies of fact concerning these qualifications. The appellee McAfee contends that when such controversies arise in connection with a general election, they are for the respective Houses of the General Assembly, but that when they arise out of primaries, they are for the courts. We cannot agree with this conclusion. The Constitution says that each House, when assembled, shall judge the qualifications of its own members, not the constitutional qualifications, and not the qualifications other than those prescribed by statute. When the Constitution speaks of qualifications, as applied to membership in the General Assembly, it must be construed *Page 542 that legislative as well as constitutional provisions were contemplated.
Considering that the statute rendering ineligible persons convicted of infamous crimes and § 7 of Article 4 of the Constitution together constitute the law respecting the 7, 8. qualifications of members of the General Assembly, we are yet confronted with the problem that there must be some tribunal with jurisdiction to determine controversies of fact arising out of the application of the law. We think the jurisdiction lies exclusively with the respective Houses of the Legislature as those bodies are constituted at the time such controversies arise. Such matters are no more to be determined by the courts than by the Governor or some administrative agency. The appellee says that our conclusion might permit a ten year old boy, or a nonresident of the district to become the nominee of a party for a seat in the General Assembly. But who is to determine the matter of age or the period of residence? The question is answered by § 10 of Article 4 of the Constitution of Indiana:
"Each House, when assembled, shall . . . judge the elections, qualifications, and returns of its own members . . ."
The circumstance that the facts were here admitted did not confer upon the court the power to adjudicate an issue that is within the exclusive jurisdiction of the state Senate.
The petition for rehearing is denied.
Tremain, J., dissenting.
NOTE: Reported in 29 N.E.2d 588. *Page 543