Harrell v. Sullivan

ON PETITION FOR REHEARING The only proposition sought to be presented by the appellees' petition for rehearing and their supporting brief that has not already had thorough consideration is this: It is now asserted that the original opinion inferentially strikes down other statutes pertaining to the political complexion of local, county, and state election boards that have been unchallenged for more than sixty years. Arguing from this premise it is contended that there has been such acquiescence in legislation of the character embraced in chapter 100, Acts of 1941, that its constitutionality ought to be accepted.

The other acts referred to by the appellees are those relating to the appointment of members of the State Board of Election Commissioners, (Acts 1889, ch. 87, § 16, p. 157, § 29-1001, Burns' 1933, § 7108, Baldwin's 1934); county boards of election commissioners, (Acts 1889, ch. 87, § 17, p. 157, § 29-1002, Burns' 1933, § 7109, Baldwin's 1934); precinct election boards, (Acts 1929, ch. 150, § 4, p. 471, § 29-807, Burns' 1933, § 7096, Baldwin's 1934); assistant poll clerks to precinct election boards, (Acts 1920, [Spec. Sess.], ch. 11, § 4, p. 41, § 29-904 Burns' 1933, § 7149, Baldwin's 1934); county boards of primary election commissioners, (Acts 1915, ch. 105, § 4, p. 359; 1917, ch. 117, § 2, p. 354, § 29-504 Burns' 1933, § 7190 Baldwin's 1934); counters for county boards of canvassers in primary elections, (Acts 1939, ch. 113, § 6, p. 559, § 29-567, Burns' 1933 [Supp.], § 7245-6, Baldwin's Supp. 1939); and precinct boards for primary elections (Acts 1915, ch. 105, § 5, p. 359, § 29-505, Burns' 1933, § 7191, Baldwin's 1934). Each of the above acts provides that the members of the respective boards referred to therein shall be appointed by or upon the binding recommendation of certain officers of the political parties which cast the highest and next highest vote at a preceding election.

Laws regulating the nomination of candidates for public office at primaries rest upon an entirely different foundation from those pertaining to general elections. Statutes 22-24. providing the machinery for holding elections proper have been enacted to give vitality to the express mandates of the Constitution of Indiana, which directs that certain public officers shall be elected by the people, fixes the qualifications of voters, and requires that all elections shall be free and equal. On the other hand, laws providing for primary elections are in the exercise of the police power of the State.Cunningham v. Cokely (1916), 79 W. Va. 60, 90 S.E. 546, L.R.A. 1917B, 718. "The words ``Primary Election' are well understood to mean the act of choosing candidates by respective political parties to fill the various offices . . ." State v. Paris (1913), 179 Ind. 446, 452, 101 N.E. 497, 499. It is the theory of our primary election laws that each participating political party holds a primary at the same time and place, with nothing in common but a single set of officers. Kelso v. Cook (1916), 184 Ind. 173, 192, 110 N.E. 987, 993, Ann. Cas. 1918E, 68, 75. No reason is seen, therefore, why the General Assembly may not provide for the active participation of the responsible officers of political parties in the conduct of their own primary elections.

It is true, as the appellees suggest, that long and unquestioned acquiescence may become under some circumstances a potent factor in determining the construction or 25, 26. validity of a statute. The State v. Gerhardt (1896), 145 Ind. 439, 44 N.E. 469, 33 L.R.A. 313.City of Terre Haute v. Evansville and Terre Haute R.R. Co. (1897), 149 Ind. 174, 46 N.E. 77, 37 L.R.A. 189. We do not find it necessary to explore that field, however, because the passage of similar acts by other legislatures is insufficient to determine the validity of a statute clearly within the words of a constitutional prohibition. 11 Am. Jur., Constitutional Law § 79, p. 699. The fact that there may have been such acquiescence in the provisions of the statutes relating to the manner of selecting members of election boards as to lead to the conclusion that there may no longer be an inquiry concerning their validity would not avoid the unconstitutionality of the Registration Act of 1941, which deals with a distinct branch of the general subject of elections.

Rehearing denied.

NOTE. — Reported in 41 N.E.2d 354, 140 A.L.R. 455.