Connell v. State Ex Rel. Thompson , 196 Ind. 421 ( 1924 )

The relator, as prosecuting attorney, filed an information in the nature of quo warranto, asking that appellant be removed and excluded from the office of councilman in the city of Lafayette. Appellant's demurrer thereto having been overruled, he excepted to the ruling and filed a paragraph of special answer, to which appellee filed a demurrer. This demurrer being sustained, appellant again reserved an exception, and refused to amend or answer further, whereupon judgment was rendered that he "be ousted from said office of councilman from the second ward in said city of Lafayette, Indiana, and that said office be declared vacant, * * * and that the plaintiff have judgment for costs against said defendant."

The complaint, as amended before the demurrer was filed, alleged, in substance, that at the city election in November, 1921, appellant and one Sammons were opposing candidates for the office of councilman from the second ward; that appellant received a majority of the votes cast, and was given a certificate of election by the board of election commissioners, and on January 2, 1922, took the oath of office, after which he took his seat in the council and participated in its proceedings, and since has been and is holding the office of councilman, claiming the right to do so. But that he was not at any of said times, nor at the time the complaint was filed, and never had been a citizen of the United States, and therefore was not a legal voter of said ward; that he was born in Ireland, and had never been naturalized. Also that one Scherer was elected to said office in the fall of 1917 and qualified and entered upon the duties of the office on the first Monday in January, 1918, and afterward resigned, when one Hall was appointed to fill out his term; and that Hall became a candidate for and was elected to the office of councilman at large in the city of Lafayette at said election in 1921, and his term as councilman from the second ward expired on January 2, 1922, so that there was no one other than appellant claiming or attempting to fill said office of councilman from the second ward, and no one entitled to fill said office, but that it was vacant and should be so declared. Nothing was alleged in the complaint as to appellant's lack of any qualifications for the office of councilman except that he had not become fully naturalized, and therefore was not a citizen of the United States nor of the State of Indiana, and was not a legal voter of the second ward.

The special answer alleged that after his birth in Ireland appellant emigrated to the United States in 1889, and became a resident of the city of Lafayette in 1892, and the same year filed his declaration of intention to become a citizen of the United States, and ever since, continuously, had been a resident, taxpayer and voter of said city, voting at all times in the city of Lafayette, under the bona fide conviction and belief that he was a bona fide citizen of the State of Indiana and of the United States, and that, for the ten years last past, he had lived continuously in the second ward. That, at all times since 1892, he has exercised all the rights and has assumed all the burdens and responsibilities and has at all times been accorded and has enjoyed the privileges and immunities of a naturalized citizen, and that he contributed a son, born in Lafayette, to the service of the United States in the World War, who spent eighteen months overseas as a soldier in such service; that inadvertently and wholly by oversight, he failed to apply for his second or final naturalization papers until the year 1919, when he first learned that he was not fully naturalized, and, on account of the change of the law, his application was refused; that in 1920, he renewed his first naturalization papers, and in January, 1923, (after this action was commenced), became a naturalized citizen of the United States. That at the times of his nomination, election and qualification, and at all times since, he continuously has been a person over the age of twenty-one years, a bona fide resident, freeholder, taxpayer and voter of the second ward of said city of Lafayette, and possessed of all qualifications prescribed by the statutes of Indiana for holding said office, and that no other person is asserting any right or claim thereto.

The record presents for decision the question whether or not the adoption of an amendment to Art. 2, § 2, of the Indiana State Constitution, by a majority of the votes cast at a special election in September, 1921, so as to restrict the right of voting at "all elections" to citizens of the United States who possess certain qualifications as to age and residence, had the effect of making appellant ineligible to hold the office of city councilman.

"The legislative authority of the State shall be vested in the General Assembly" (Art. 4, § 1, Constitution, § 104 Burns 1926, § 97 Burns 1914), and that body is supreme and sovereign, 1, 2. except so far as its power is limited by some provision of the State Constitution, or by the Federal Constitution or treaties made or acts of Congress passed under its authority. State, ex rel., v.Menaugh (1898), 151 Ind. 260, 266, 51 N.E. 117, 43 L.R.A. 408, 418; Hanly v. Sims (1910), 175 Ind. 345, 356, 93 N.E. 228;Carr v. State (1911), 175 Ind. 241, 246, 93 N.E. 1071, 32 L.R.A. (N.S.) 1190; Lafayette, etc., R. Co. v. Geiger (1870),34 Ind. 185, 196. Therefore, except so far (if at all) as the Constitution may have prescribed the qualifications of public officers, or otherwise limited the legislative authority, the power of the legislature to create municipal offices and to fix the qualifications of those who shall fill them is unrestrained.

The Constitution of the United States prescribes no qualifications for any state or municipal officers, but only for representatives in congress, for senators and for the 3. President. Art. 1, §§ 2, 3, and Art. 2, § 1, U.S. Constitution; §§ 2, 3, 11 Burns 1926, §§ 2, 3, 11 Burns 1914.

And the Constitution of the State of Indiana requires that state senators and representatives and the Governor shall be citizens of the United States. Art. 4, § 7, and Art. 5, 4, 5. § 7, Constitution, §§ 110, 140 Burns 1926, §§ 103, 133 Burns 1914. But, as to county officers, it only requires that they shall be electors of their respective counties and inhabitants thereof for one year. Art. 6, § 4, Constitution, § 161 Burns 1926, § 154 Burns 1914. And no qualifications are prescribed for town (city) and township officers at and prior to the time of their election, but only that they shall reside in their respective towns (cities) and townships, and keep their offices therein. Art. 6, § 6, Constitution, § 163 Burns 1926, § 156 Burns 1914.

Admitting that no provision of the Constitution expressly prescribes the qualifications to be possessed by a member of a city council, or expressly limits the power of the general assembly to fix the qualifications for holding that office, appellees cite and rely upon a fiat of the Supreme Court of Wisconsin in an early case (State, ex rel., v.Smith [1861], 14 Wis. 539) that "as to all * * * governments it is an acknowledged principle, which lies at the very foundation, and the enforcement of which needs neither the aid of statutory nor constitutional enactments or restrictions, that the government is instituted by the citizens for their liberty and protection, and that it is to be administered and its powers and functions exercised only by them and through their agency." From which that court drew the conclusion that being an elector was a necessary qualification for holding the office of sheriff, although the Constitution did not expressly so provide, and did provide that residents who had declared an intention to become citizens of the United States might vote, before becoming citizens. But in each of two later cases, the Supreme Court of Wisconsin has distinguished and limited the effect of the above case, and we know of no instance where it has been followed, or where the courts have assumed to declare a necessary qualification for holding an office not fixed by the constitution or by statute. State, ex rel., v. Murray (1871), 28 Wis. 96, 9 Am. Rep. 489; State v. Trumpf (1880), 50 Wis. 103, 5 N.W. 876.

This court has repeatedly held that where a person possessed all the qualifications prescribed by the Constitution, he could not be excluded from an office because of not being a citizen of the United States or because he had not become a citizen as much as a year before he was elected or appointed to the office.McCarthy v. Froelke (1878), 63 Ind. 507; State, ex rel., v.Kilroy (1882), 86 Ind. 118.

The Constitution not having created the office of city councilman nor prescribed any qualifications which a person shall possess in order to hold that office, it 6, 7. necessarily follows that the power of the legislature as to those subjects was unrestrained. The only qualification imposed by statute is the following: "No person shall be eligible to any city office unless he shall have been a resident of such city for at least one year immediately preceding his election, nor shall any person be eligible to the office of councilman to represent any ward unless for the last six months of his residence in such city he shall have been a resident of such ward." § 10266 Burns 1926, § 8644 Burns' Supp. 1921, § 1, Acts 1921 p. 404.

Since the complaint did not deny and the demurrer to the answer expressly admitted that appellant possessed these qualifications, the judgment excluding him from office was erroneous.

Some objections to the amendment of the Constitution referred to (Art. 2, § 2, Constitution) as having been adopted only by a majority vote at an election when a comparatively small 8. number of ballots were cast, have been suggested by counsel. But this court will not consider a constitutional question the decision of which is not necessary to the decision of the pending case. And the conclusion we have reached makes it unnecessary to pass on those objections.

The judgment is reversed, with directions to sustain appellant's demurrer to the complaint.