Board of Election Commissioners v. Knight

Spencer, C. J. — 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 — 111 — appellants, as members of the boards of registration and election commissioners, from performing certain acts required of them by the above legislation in connection with a municipal election to be held in the city of Indianapolis on November 6, 1917. It is his contention, briefly, that under the Constitution of the state the right of suffrage may not be extended to women, and this appeal is taken from a decree of the Marion Superior Court which sustains in substance the prayer of the complaint. 1. Preliminary to a consideration of the case on its merits, we are required first to pass on appellant’s assertion that the trial court had no jurisdiction to determine the issues sought to be presented, for the reason that the alleged unconstitutionality of a law is not alone sufficient to authorize the granting of equitable relief against its operation. 14 R. C. L. 435, §137. Conceding this general proposition, the rule is equally well established that where, as in this case, it is alleged and proved that á compliance with the provisions of the legislation in question would necessitate a considerable expenditure of public funds, the taxpayer may, through the aid of a court of equity, secure an early interpretation of the law and thus, on proper occasion, forestall an illegal expense. Bennett v. Jackson (1917), 186 Ind. 533, 116 N. E. 921; Ellingham v. Dye (1912), 178 Ind. 336, 413, 99 N. E. 1, 99 N. E. 29, 231 U. S. 205, 58 L. Ed. 206, Ann. Cas. 1915C 200. 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, — 112 — no matter how we may feel or think as to the principle of universal suffrage, the solution of the question before us may not rest on or be influenced by considerations of social policy or political expediency, but must be reached in strict accordance with recognised canons of constitutional construction. In the exact form which it now takes, the issue is largely one of first impression, at least in this state, although, as will be noted later, this court has previously had occasion to announce certain principles which are applicable to the present inquiry and which affect its solution in some degree. The section of che Constitution now under consideration directs that: “In all elections not otherwise provided for by this Constitution, every male citizen of the United States, of the age of twenty-one years and upward, who shall have resided in the state during the six months, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding such election, and every 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, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding such election, and shall have declared bis intention to become a citizen of the United States, conformably to the laws of the United States on the-subject of naturalization, shall be entitled to vote in the township or precinct where he may reside, if he shall have been duly registered according to law.” Constitution, Art. 2, §2. 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, — 113 — 99 N. E. 481; Morris v. Powell (1890), 125 Ind, 281, 25 N. E. 221, 9 L. R. A. 326; Quinn v. State (1871), 35 Ind. 485, 9 Am. Rep. 754. 2. But the contention is made that as neither this nor any other section of the Constitution expressly prohibits the legislature from extending the franchise to classes of persons other than those above enumerated, the exercise of that power is within the purview of Art. 4, §1, which vests the legislative authority of the state in the general assembly. This contention rests on the well-established principle that, except as to limitations imposed by the state or the federal Constitution, or by laws or treaties enacted or adopted pursuant to the provisions of the latter instrument, the legislative powers of the general assembly are practically absolute. Beauchamp v. State (1842), 6 Blackf. 299, 302. The extent to which this principle is operative finds expression in the rule that if a legislative enactment is properly within the constitutional grant, the courts may not declare it invalid on the ground that it is wrong or unjust, or violates the spirit of our institutions, or impairs rights which it is the object of a free government to protect. Townsend v. State (1896), 147 Ind. 624, 634, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. 477. At the same time, to adopt a statement made by Chief Justice Marshall in Fletcher v. Pack (1810), 6 Cranch 87, at page 135, (3 L. Ed. 162): “It may well be doubted, whether the nature of society and of government does not prescribe some limits to the legislative power.” That doubt has received affirmative recognition by the courts under varying circumstances, but we are not especially concerned at this time with the doctrine of implied limitation on legislative authority, in view of our conclusion that the authority of the general assembly to enact the law in — 114 — question is necessarily inhibited by Art. 2, §2, of the Constitution. As was decided in Gougar v. Timberlake (1896), 148 Ind. 38, 40, 46 N. E. 339, 37 L. R. A. 644, 62 Am. St. 487, the right of suffrage is not a natural or an inherent right, but a political privilege, and it is held only by those on whom it is bestowed, either by virtue of express .constitutional grant or through authorized legislative provision. The question is primarily one for the consideration of the people in their capacity as creators of the Constitution, and is never one for the consideration of the legislature except in so far as that instrument clearly sanctions an extension of the elective franchise or permits a regulation of its mode of exercise. Morris v. Powell, supra; Minor v. Happersett (1874), 88 U. S. (21 Wall.) 162, 173, 22 L. Ed. 627; Coggeshall v. City of Des Moines (1908), 138 Iowa 730, 737, 117 N. W. 309, 128 Am. St. 221, 6 R. C. L. 287, §273. 2. 3. If, as appellants insist, the general assembly has the power, under its broad grant of legislative authority, to extend the right of suffrage to women of- the state, it may likewise extend the same right to male citizens under the age of twenty-one years and to persons of foreign birth who have not dedared their intention to become citizens of the United States. The effect of such a construction would be to place Art. 2, §2, purely within the class of restrictive provisions on legislation and practically destroy its character as an affimative grant of privilege. We need not extend our discussion of this branch of the case, however, as the principle is well established that the legislature has no general power to confer the elective franchise on classes other than those to whom it is given by the Constitution, since its description of those who are entitled thereto is regarded as excluding all others. State v. Patterson (1913), 181 Ind. 660, — 115 — 664, 105 N. E. 228; Gougar v. Timberlake, supra, 48; McCafferty v. Guyer (1868), 59 Pa. St. 109; Coffin v. Election Commissioners (1893), 97 Mich. 188, 194, 56 N. W. 567, 21 L. R. A. 662; Coggeshall v. City of Des Moines, supra, 737; 15 Cyc 298; Cooley, Constitutional Limitations (7th ed.) 99, 245. In this connection, our attention is called to the case of In re Leach (1893), 134 Ind. 665, 34 N. E. 641, 21 L. R. A. 701, as authority for the proposition that the maxim “expressio unius est exclusio alterius” is not applicable in the construction of a constitutional provision. The decision in *that case, however, is to be sustained on the ground that the subject-matter of Art. 7, §21, then under consideration, has reference to an inherent right belonging to every individual rather than on the ground, that the principle contained in the maxim is inapplicable as a rule of constitutional interpretation. Gougar v. Timberlake, supra, 48. 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 — 116 — mind on an issue which was then of vital importance, rather than as an intended restriction on the effect of Art. 2, §2, and especially is this conclusion justified by the fact that the negro section, although recognized as unnecessary, was adopted on the principal ground that “it can do no harm.” 2 Convention-Debates 1712, 1737. As opposed to this circumstance, we find that Art. 12, §1, which provides that “The militia shall consist of all able-bodied white male persons,” etc., has been uniformly construed as excluding colored persons from the service, and on at least three occasions (1885, 1889 and 1913), a proposition for the amendment of the Constitution in this particular has been submitted to the general assembly. 4. With proper regard, then, for the constitutional history of the state, as well as- for the nature of the question at issue, we- have determined that the right of franchise is a political privilege of the highest dignity which can emanate only from the people, either in their sovereign statement, of the organic law or through- legislative enactment which they have authorized. Our next inquiry is to ascertain whether the Constitution of Indiana authorizes such an enactment. Appellants assert the affirmative of that proposition and rely chiefly on the provision of Art. 15, §1, that “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.” The word “appointment,” as used in this section, is to be construed as meaning “method of selection” (McPherson v. Blacker [1892], 146 U. S. 1, 27, 13 Sup. Ct. 3, 36 L. Ed. 869), and is thus broad enough to allow the legislature to determine whether such officers shall be appointed, in the strict sense of the term, or elected by popular vote. We cannot agree, however, that, in the latter alternative, the legislature has the further author — 117 — ity to define the electorate which may participate in such election. The right to determine the “manner” in which'public officers’are to be chosen has reference only to. the method or mode of selection and does not include the power to determine the qualifications of the legal voters. Livesley v. Litchfield (1905), 47 Ore. 248, 253, 83 Pac. 142, 114 Am. St. 920; Coffin v. Election Commissioners, supra; People, ex rel. v. English (1892), 139 Ill. 622, 629, 29 N. E. 678, 15 L. R. A. 131; People, ex rel. v. Guden (1902), (Sup.) 75 N. Y. Supp. 347, 349. 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 — 118 — opinion, that the “word ‘manner’ *' * * indicates merely that the legislature may provide by law the usual, ordinary or necessary details required for the holding of the election.” No sound basis is perceived for distinguishing between such a use of the word in the Illinois Constitution and in that of Indiana. It is true that in the one case the Constitution first names the officer and then directs that he shall be elected in such “manner” as may be prescribed by law, while in the other the general assembly is authorized to name the officer itself and then to provide for his election or appointment in such “manner” as may be prescribed by law, but when, under the latter authority, an office has been created and provision made for the election of the incumbent, the only remaining step is to determine the “manner” of his election, and the rule as above expressed in the English case is at once applicable. The bare, fact, standing alone, that one officer is named in the Constitution and the other is not, affords only an arbitrary ground for distinction as to who may participate in their election. The dissenting opinion of Mr. Justice Cooke, in Scown v. Czarnecki, supra, considers the Yost and English cases at length and effectively discloses the unsoundness of the majority opinion of his associates, which, in its analysis, rests on an erroneous •application of the doctrine of stare decisis. 5. Concerning the school cases, it is enough to note that, except as to the selection of a state superintendent of public instruction, the entire matter of developing the public school system and of providing for its administration rests with the general assembly under Art. 8, §1, of our Constitution, and is in no sense governed by any provision made for the selection of public officers generally. That 'distinction has long been recognized by the courts of this and other states, although not always based on the same ground. Kelso — 119 — v. Cook (1915), 184 Ind. 173, 184, 110 N. E. 987; State, ex rel. v. Haworth (1890), 122 Ind. 462, 466, 23 N. E. 946, 7 L. R. A. 240; Belles v. Burr (1889), 76 Mich. 1, 11, 43 N. W. 24; Plummer v. Yost, supra, 75; Wheeler v. Brady (1875), 15 Kan. 26; State v. Cones (1884), 15 Neb. 444, 447, 19 N. W. 682. 6. To return to the question at .issue, it is clear that any effort on the part of the general assembly to' establish a public electorate which would differ from that defined in Art. 2, §2, of the Constitution must necessarily be in conflict with the manifest purpose of that section to designate the voters entitled to participate in all elections “not otherwise provided for by this Constitution.” Certain elections in which the members of one or both houses of the general assembly constitute the electorate are “otherwise provided for” in the Constitution and this fact is expressly recognized in Art. 2, §13, which requires that “All elections by the people shall be by ballot; and all elections by the General Assembly, or by either branch thereof, shall be viva voce.” An electorate defined by legislative enactment is not “otherwise provided for by this Constitution,” but by the general assembly, and the passage of such an enactment can be of no force in view of the express constitutional declaration, that, except as otherwise provided in that instrument', every .male citizen who possesses certain qualifications shall be entitled to vote in all elections. As was decided in People, ex rel. v. Canaday (1875), 73 N. C. 198, 221, 21 Am. Rep. 465, whenever a Constitution designates a certain class of persons as electors or confers on them the right of suffrage, it means that, in the absence of other restrictive provisions contained therein, they shall be entitled “to vote generally whenever the polls are opened and elections held for anything connected with the general government, or the state or local governments.” When prop — 120 — erly construed, then, Art. 15, §1, vests in the general assembly the right to determine in what manner offices of its own creation shall be filled, but whenever, in the exercise of that power, provision is made for the selection of the incumbents by popular vote, the qualifications prescribed in Art. 2, §2, control in fixing the electorate. 7. It is earnestly insisted, however, that for a long period of time immediately preceding and subsequent to the adoption of our present Constitution, the general assembly regularly assumed' to designate the qualifications for legal voters in municipal elections, and that this interpretation by the legislature of its own power is now of controlling importance. We may concede that a uniform and long-continued exposition of a constitutional provision, though not conclusive, is generally entitled to great weight, and should not be departed from unless it is manifestly erroneous or has received disapproval in a subsequent expression of the sovereign will. 6 R. C. L. 63, §60. With this principle in mind, we proceed to a consideration of the constitutional and legislative history of the state as it concerns the question of suffrage in municipal elections. Under the Constitution of 1816, the right of suffrage, “in all elections not otherwise provided for” in that instrument, was granted to every white, male citizen of the United States, of the age of twenty-one years and upwards, who had resided in the state one year immediately preceding such election, and he was entitled to vote in the county of his residence. Constitution 1816, Art. 6, §1. Certain elections were “otherwise provided for” in that Constitution, as in the present, ■ and this was particularly true of the military elections in which the suffrage qualifications differed materially from those fixed in the general grant. Constitution 1816, Art. 7, §§3, 4, 5. This fact has a bearing on the questions now in issue as indicating that the clause “otherwise pro — 121 — vided for by this Constitution,” which was readopted without change in 1851, has reference only to the constitutional definition of a special electorate which should participate in certain elections. The Constitution of 1816 also provided that “town and township officers shall be appointed in such manner as shall be directed by law” (People, ex rel. v. English, supra), and authorized the general assembly to determine in what “manner” offices of its own creation should be filled. Constitution 1816, Art. 4, §8, and Art. 11, §15. No provision was made, however, for .the creation of towns and cities generally and it soon became the practice, whenever it was desired to establish a municipal corporation, to petition the legislature for the passage of a special law which should contain the chartergrant. These laws regularly assumed to fix the qualifications for municipal suffrage and were not uniform in that particular, as local necessities usually served as the guide in determining such qualifications. During the formative period of that policy, at least, communication between the various towns and cities of the state was difficult and limited, and there existed, in some degree, a condition of social and political isolation which tended to prevent a recognition of the fact that the municipal unit is a governmental agency of the state as well as an organization for the control of local affairs. In view of this condition, it may be argued with reason that, in the first instance, the practice of providing local qualifications for municipal suffrage developed out of the existing relation between the town or city and the state, rather than from a belief on the part of the general assembly that it had full authority to provide the electorate for the choice of all officers not mentioned in the Constitution. It must be conceded, however, that the practice continued until the adoption of the present Constitution in 1851, and the assertion is now made that in framing — 122 — that instrument-without making different provision for determining the municipal electorate, the people of the state impliedly accepted the interpretation by the legislature of its own authority in that particular, but in view of later developments this circumstance becomes of no importance. 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 — 123 — residential qualifications as set forth in the Constitution and in 1877 a resolution was introduced in the senate which provided for residence in the township or precinct for sixty days immediately preceding an election. Prior to its passage, however, that resolution was amended, in part, by adding an alternative provision for residence in the ward, thus adopting the very requirement which was exacted of voters in municipal elections by the general assembly of 1852. The ward exists only as a political subdivision of the city or town (§§8641, 8984 Burns 1914, Acts 1905 p. 219, Standard Dictionary) and there can be do doubt that when the people of this state, in 1881, amended Art. 2, §2, of their'Constitution in accordance with the resolution of 1877, they intended that its requirements should apply in determining the qualifications of voters at all state, county, township and municipal elections of a political nature. . Even though it be admitted that prior to the amendment of 1881, municipal elections were of a class “otherwise provided for by this Constitution,” the effect of that amendment was to bring such elections within the class “not otherwise provided for” by that instrument and to make the constitutional qualifications applicable in determining the electorate. The evil which the amendment sought to check was as pronounced in city elections as in those for the choice of state officers and it is inconceivable that the people should have sought to remedy the condition in one instance and not in the other, or that they should have adopted the legislative provision of 1852 concerning municipal elections, unless it was their intention to make the constitutional requirements applicable in elections of that class. 7. If we concede, then, that in passing the various local charter laws prior to the adoption of our present Constitution and in enacting the general statute of 1852, the legislature assumed that the suffrage — 124 — qualifications then contained in Art. 2, §2, and in the similar provision of the Constitution of 1816, were not intended to apply in municipal elections, it is equally evident that in adopting the amendment of 1881 the people plainly announced that this assumption had been erroneous and should not continue, and from that time, until in the present instance, the general assembly has made no effort to prescribe or change the qualifications for municipal suffrage. It is true that §230 of the Cities and Towns Act of 1905 provides that “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 p. 219, §8884 Burns 1914), but that provision is no more indicative of a legislative belief that other requirements might be exacted than is the fact that in 1881 the general assembly passed a general-election law prescribing for all voters certain qualifications which are identical with those set forth in the Constitution. §6876 Burns 1914, Acts 1881 (s.s.) 482. Furthermore, the “laws of the State” which are referred to in the act of 1905, supra, consist (1) of a restatement, in substance, of the constitutional provisions on the question of suffrage and (2) of a statute concerning disfranchisement which was passed pursuant to express constitutional direction. §§6876-6879 Burns 1914. 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 — 125 — shall participate in every state, county, township and local election of political officers, and (2) that the general assembly has no authority to extend the right of. franchise to persons not included within that definition. 8. 9. Applying these general principles to the facts in issue, we must sustain the decision of the trial court in' holding that the Partial Suffrage Act of 1917 is. invalid in so far as it purports to grant to women of the city of Indianapolis the right to participate in the election of a mayor, a city judge, a city clerk, and the members of the common council. The remaining inquiry is to determine their right to participate in the election of members of the board of school commissioners.. The Suffrage Act undertakes, in part, to confer on women the right to vote “for all school officers elected by the people,” but that grant appears only as an incident in what is plainly an exercise of an assumed power to extend the right of political franchise. No suggestion is made, either in the title of the act or in its provisions as a whole, which would indicate that the general assembly was there undertaking to exercise its authority over the administration of the public school system, and, under such circumstances, the case is governed by the rule that where valid and invalid provisions of an enactment are so connected one with the other that it is apparent that the legislature would not have passed the act, except as a whole, the entire statute must fall. State, ex rel. v. Fox (1901), 158 Ind. 126, 130, 63 N. E. 19, 56 L. R. A. 893; State, ex rel. v. Blend (1890), 121 Ind. 514, 521, 23 N. E. 511, 16 Am. St. 411; Griffin v. State, ex rel. (1889), 119 Ind. 520, 22 N. E. 7; 6 R. C. L. 123, §122. This conclusion requires a full affirmance of the judgment of the Marion Superior Court and it is so ordered. Myers, J., concurs; Lairy, J., concurs in the conclusion reached; Harvey, J., dissents.