Bd. of Election Com'rs of Indianapolis v. Knight

• Decision Date: 01 November 1917
• Docket Number: No. 23375.,23375.
• Citation: 187 Ind. 108,117 N.E. 565
• Parties: BOARD OF ELECTION COM'RS OF CITY OF INDIANAPOLIS et al. v. KNIGHT.
• Court: Indiana Supreme Court

187 Ind. 108

117 N.E. 565

BOARD OF ELECTION COM'RS OF CITY OF INDIANAPOLIS et al.

v.KNIGHT.

No. 23375.

Supreme Court of Indiana.

Oct. 26, 1917.

Concurring Opinion Nov. 1, 1917.

Appeal from Superior Court, Marion County; John J. Rochford, Judge.

Suit by William W. Knight against the Board of Election Commissioners of the City of Indianapolis and others. From a decree for complainant, defendants appeal. Affirmed.

For dissenting opinion, see 117 N.E. 650.Ele Stansbury, of Indianapolis, Abram Simmons, of Bluffton, Stuart, Hammond & Stuart, of La Fayette, Catherine W. McCulloch and Emma Eaton White, both of Chicago, Ill., and U. S. Lesh, of Huntington, for appellants. Charles E. Cox and Geo. H. Batchelor, both of Indianapolis, for appellee. Elias D. Salsbury, of Indianapolis, amicus curiæ.

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 elections. Acts 1917, p. 73. It also passed an act concerning the registration of voters generally, of which section 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. Subsequent 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 appellants, as members of the board 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 appellants' 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, sec. 137. Conceding this general proposition, the rule is equally well established that where, as in this case, it is alleged and proved that a compliance with the provisions of the legislation in question would necessitate a considerable expenditure of public funds, the taxpayers 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, 116 N. E. 921;Ellingham v. Dye, 178 Ind. 336, 413, 99 N. E. 1, 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 section 2 of article 2 of the Constitution. The inquiry thus suggested, although of vital importance, is purely one of constitutional interpretation, and, 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 recognized 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 the 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 his 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.” Const. art. 2, § 2.

As appellants concede, the above provision is 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, 178 Ind. 330, 333, 99 N. E. 481;Morris v. Powell, 125 Ind. 281, 25 N. E. 221, 9 L. R. A. 326;Quinn v. State, 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 article 4, § 1, which rests 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 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, 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, 147 Ind. 624, 634, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477. At the same time, to adopt a statement made by Chief Justice Marshall in Fletcher v. Peck, 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 question is necessarily inhibited by article 2, § 2, of the Constitution. As was decided in Gougar v. Timberlake, 148 Ind. 38, 40, 48 N. E. 339, 37 L. R. A. 644, 62 Am. St. Rep. 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, 125 Ind. 281, 315, 25 N. E. 221, 9 L. R. A. 326;Minor v. Happersett (88 U. S.) 21 Wall. 162, 173, 22 L. Ed. 627;Coggeshall v. City of Des Moines, 138 Iowa, 731, 737, 117 N. W. 309, 128 Am. St. Rep. 221, 6 R. C. L. 287, § 273.

[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 21 years and to persons of foreign birth who have not declared their intention to become citizens of the United States. The effect of such a construction would be to place section 2 of article 2 purely within the class of restrictive provisions on legislation and practically destroy its character as an affirmative 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 to vote is regarded as excluding all others. State v. Patterson, 181 Ind. 660, 664, 105 N. E. 228;Gougar v. Timberlake, 148 Ind. 48, 48 N. E. 339, 37 L. R. A. 644, 62 Am. St. Rep. 487;McCafferty v. Guyer, 59 Pa. 109;Coffin v. Election Com'rs, 97 Mich. 188, 194, 56 N. W. 567, 21 L. R. A. 662;Coggeshall v. City of Des Moines, 138 Iowa, 737, 117 N. W. 309, 128 Am. St. Rep. 221; 15 Cyc. 298; Cooley, Const. Lim. (7th Ed.) 99, 245.

In this connection, our attention is called to the case of In re Leach, 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 article 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. See ...