Connell v. State ex rel. Thompson

• Decision Date: 17 October 1924
• Docket Number: No. 24614.,24614.
• Citation: 196 Ind. 421,144 N.E. 882
• Parties: CONNELL v. STATE ex rel. THOMPSON, Pros. Atty.
• Court: Indiana Supreme Court

196 Ind. 421

144 N.E. 882

CONNELL

v.STATE ex rel. THOMPSON, Pros. Atty.

No. 24614.^*

Supreme Court of Indiana.

Oct. 17, 1924.

Appeal from Circuit Court, Tippecanoe County; Homer W. Hennegar, Judge.

Quo warranto by the State of Indiana, on relation of Mark L. Thompson, Prosecuting Attorney for the Twenty-Third Judicial Circuit, against William P. Connell. Judgment for relator, and defendant appeals. Reversed with directions.

Stuart, Simms & Stuart and Clyde H. Jones, all of La Fayette, for appellant.

Geo. P. Haywood, E. B. Davidson, and Mark L. Thompson, all of La Fayette, for appellee.

EWBANK, J.

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 La Fayette. 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 La Fayette, Ind., 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 the 2d of January, 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 La Fayette at said election in 1921, and his term as councilman from the second ward expired on the 2d of January, 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 La Fayette 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 La Fayette, 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 La Fayette, to the service of the United States in the World War, who spent 18 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 21 years, a bona fide resident, freeholder, taxpayer, and voter of the second ward of said city of La Fayette, 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 section 2, art. 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.

[1][2] “The legislative authority of the state shall be vested in the General Assembly” (Const. § 1, art. 4 [section 97, Burns' 1914]), and that body is supreme and sovereign, 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, 151 Ind. 260, 266, 51 N. E. 117, 357, 43 L. R. A. 408, 418;Hanly v. Sims, 175 Ind. 345, 356, 93 N. E. 228, ...