ON PETITION FOR REHEARING. The case of State, ex rel., v. Boyd (1891), 31 Neb. 682, 48 N.W. 739, 51 N.W. 602, cited by appellee, merely held that a section of the Constitution of Nebraska which provided that "No person shall be eligible to the office of Governor * * * who shall not have * * * been for two years next *Page 429 preceding his election a citizen of the United States and of this state" (Art. 5, § 2), had the effect of making Boyd ineligible to that office. Moreover, that case was appealed from the Supreme Court of Nebraska to the Supreme Court of the United States, which held that Boyd was a citizen of the United States, and reversed the judgment. Boyd v. Thayer (1891), 143 U.S. 135, 158, 12 Sup. Ct. 375, 36 L.Ed. 103.
The case of Taylor v. Sullivan (1891), 45 Minn. 309, 47 N.W. 802, 11 L.R.A. 272, 22 Am. St. 729, also cited, held that an alien who had not declared his intention to become a 9. citizen of the United States until after being elected, but had duly declared such intention before the commencement of the term for which he was elected, was not eligible to the office of county attorney under provisions of the Constitution of Minnesota that: "Persons of foreign birth, who shall have declared their intention to become citizens, conformably to the laws of the United States upon the subject of naturalization" (being otherwise qualified) should have the right to vote (Art. 7, § 1), and that, "Every person who by the provisions of this article, shall be entitled to vote at any election shall be eligible to any office * * * elective by the people in the district," etc. (Art. 7, § 7). But, on the only question really decided, to the effect that a person qualified when the time arrives to take his office may be excluded from it because he was not qualified before being elected, that case is opposed to the decisions of the courts of many states, including Indiana. Several courts of last resort have held that a person who became naturalized after being elected and before entering upon the duties of his office at the time fixed for the commencement of his term was eligible to take and hold it, where his eligibility depended upon citizenship, although he was not a citizen when elected. State, ex rel., v. Van Beek (1893), *Page 430 87 Iowa 569, 54 N.W. 525, 19 L.R.A. 622, 43 Am. St. 397; State,ex rel., v. Murray (1871), 28 Wis. 96, 9 Am. Rep. 489; State v. Trumpf (1880), 50 Wis. 103, 5 N.W. 876, 6 N.W. 512. And where claimants were ineligible to the offices sought at the time of being elected thereto, by reason of having voluntarily borne arms against the United States, or because they were then holding judicial offices, or for other reason, but were capable of procuring the disability to be removed, and had become eligible when the time arrived for taking possession of their offices, qualifying and entering upon the performance of their official duties, the courts of Indiana and of many other states have held them eligible to fill such offices. Privett v. Bickford (1881), 26 Kans. 52, 40 Am. Rep. 301; Demaree v. Scates (1893), 50 Kans. 275, 32 P. 1123, 20 L.R.A. 97, 34 Am. St. 113;Smith v. Moore (1883), 90 Ind. 294; Shuck v. State, exrel. (1893), 136 Ind. 63, 35 N.E. 993; Hoy v. State, ex rel. (1907), 168 Ind. 506, 517, 81 N.E. 509, 11 Ann. Cas. 944;Kirkpatrick v. Brownfield (1895), 97 Ky. 558, 31 S.W. 137, 29 L.R.A. 703, 53 Am. St. 422; Bradfield v. Avery (1909),16 Idaho 769, 102 P. 687, 23 L.R.A. (N.S.) 1228.
2 Kent's Commentaries p. 64, cited by appellee, merely purports to declare the statute law of the State of New York on the subject of aliens being made incapable of voting or holding office, and cites the revised statutes of New York as authority. 1 R.C.L. p. 801, § 8, cited by appellee, declaring the rule contended for by him, based its declaration solely on the case ofState, ex rel., v. Smith (1861), 14 Wis. 539, and other cases which have quoted the language of that one by way of dictum, while distinguishing it and holding that the rule declared by it was not controlling as to the questions then before the court for decision.
It is a fundamental principle that the common law *Page 431 yields at all times where the Constitution or a valid 10. statute contains provisions inconsistent with its rules. § 244 Burns 1926, § 236 Burns 1914, § 236 R.S. 1881; 1 R.S. 1852, § 1, p. 351, § 1, Acts 1818 p. 308; Stevenson v. Cloud (1839), 15 Blackf. (Ind.) 92.
The Constitution of the State of Indiana for a period of seventy years, from 1851 to 1921, expressly provided that men who were not citizens of the United States, having declared an intention to become citizens and resided in the state, the township and the ward or precinct for the prescribed time, should be entitled to vote. Art. 2, § 1, Constitution, § 91 Burns 1926, § 84 Burns 1914, 1 R.S. 1852, § 2, p. 46. And as the original opinion in this case pointed out, the Governor and members of the General Assembly were the only officers whom it required to possess any other or greater qualifications in order to hold office during all that period. And appellant had been a resident voter at the city of Lafayette for twenty-nine years and was already nominated for the office of councilman before the Constitution was changed so as to limit the right of suffrage to citizens.
An unsupported fiat of the Supreme Court of Wisconsin, announced sixty-five years ago, at which time and for sixty years continuously thereafter and until after September 6, 1921, being four months after appellant was nominated for the office of councilman and only two months before he was elected, the Constitution of Indiana permitted aliens who had declared their intention of becoming citizens to vote and hold all offices in the state except the offices of Governor, Lieutenant-Governor, senator and representative, is not a sufficient basis for excluding from the office of city councilman one who had been a duly qualified voter of the city for twenty-nine years at the time of his nomination, and continued to reside therein. *Page 432
It may be remarked that the Supreme Court of Indiana held many years ago that "the office of councilman is an office purely and wholly municipal in its character. He has no duties to perform under the general laws of the State. The State has enacted a law applicable to all cities that may organize under it. The inhabitants of the particular locality, after having taken the necessary steps for an organization, elect the designated number of councilmen, who have the power to enact bylaws, and do such other acts and perform such other duties as pertain to their office in the municipality. These powers and duties of councilmen are beyond and in addition to any acts, powers, and duties performed by officers provided for under the state government. * * * In our opinion the office of councilman in a city, although a lucrative office in the ordinary sense of the word, is not a lucrative office within the ninth section of the second article of the constitution." State, ex rel., v. Kirk (1873),44 Ind. 401, 406, 408, 15 Am. Rep. 239.
If the people of Indiana wish to make citizenship a qualification for holding municipal office, or to exclude all but voters from the right to hold such offices, they may so provide by statute or by constitutional amendment, when it will become the duty of the courts to give effect to the law as so enacted. But we cannot adopt an artificial and strained construction of the recent amendment to the Constitution to exclude from office one who had been for many years and until after his nomination eligible to vote and to hold any but a very few of the principal offices of the state, under the express provisions of the Constitution as well as the statutes, and who is not now expressly made ineligible to serve as councilman either by the Constitution or the statutes.
The petition for a rehearing is overruled. *Page 433