Connell v. State ex rel. Thompson
| Decision Date | 03 July 1925 |
| Docket Number | No. 24614.,24614. |
| Citation | 148 N.E. 407,196 Ind. 421 |
| Parties | CONNELL v. STATE ex rel. THOMPSON, Pros. Atty. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Tippecanoe County; Homer A. Hensinger, Judge.
On petition for rehearing. Overruled.
For opinion on original hearing, see 144 N. E. 882.
The case of State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N. W. 739, 51 N W. 602, cited by appellee, merely held that a section of the Constitution of Nebraska, which provided that “no person shall be eligible to the office of Governor *** who shall not have *** been for two years next preceding his election a citizen of the United States and of this state” (section 2, art. 5), had the effect of making Boyd ineligible to that office. Moreover, that case was appealed from the Supreme Court of Nebraska to the Supreme Court of the United States, which held that Boyd was a citizen of the United States, and reversed the judgment. Boyd v. Thayer, 143 U. S. 135, 158, 12 S. Ct. 375, 36 L. Ed. 103.
The case of Taylor v. Sullivan, 45 Minn. 309, 47 N. W. 802, 11 L. R. A. 272, 22 Am. St. Rep. 729, also cited, held that an alien who had not declared his intention to become a citizen of the United States until after being elected, but had duly declared such intention before the commencement of the term for which he was elected, was not eligible to the office of county attorney under provisions of the Constitution of Minnesota that “persons of foreign birth, who shall have declared their intention to become citizens, conformably to the laws of the United States upon the subject of naturalization” (being otherwise qualified) should have the right to vote (section 1, art. 7), and that “every person who, by the provisions of this article, shall be entitled to vote at any election shall be eligible to any office *** elective by the people in the district,” etc. (section 7, art. 7). But on the only question really decided, to the effect that a person, qualified when the time arrives to take his office, may be excluded from it because he was not qualified before being elected, that case is opposed to the decisions of the courts of many states, including Indiana. Several courts of last resort have held that a person who became naturalized, after being elected and before entering upon the duties of his office at the time fixed for the commencement of his term, was eligible to take and hold it, where his eligibility depended upon citzenship, although he was not a citizen when elected. State ex rel. v. Van Beck, 87 Iowa, 569, 54 N. W. 525, 19 L. R. A. 622, 43 Am. St. Rep. 397;State ex rel. v. Murray, 28 Wis. 96, 9 Am. Rep. 489;State v. Trumpf, 50 Wis. 103, 5 N. W. 876, 6 N. W. 512.
And where claimants were ineligible to the offices sought at the time of being elected thereto, by reason of having voluntarily borne arms against the United States, or because they were then holding judicial offices, or for other reason, but were capable of procuring the disability to be removed, and had become eligible when the time arrived for taking possession of their offices, qualifying and entering upon the performance of their official duties, the courts of Indiana and of many other states have held them eligible to fill such offices. Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 301; Demaree v. Scates, 50 Kan. 275, 32 P. 1123, 20 L. R. A. 97, 34 Am. St. Rep. 113;Smith v. Moore, 90 Ind. 294;Shuck v. State's ex rel. Cope, 136 Ind. 63, 35 N. E. 993;Hoy v. State, 168 Ind. 506, 517, 81 N. E. 509, 11 Ann. Cas. 944;Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S. W. 137, 29 L. R. A. 703, 53 Am. St. Rep. 422;Bradfield v. Avery, 16 Idaho, 769, 102 P. 687, 23 L. R. A. (N. S.) 1228.
Kent's Commentaries, vol. 2, p. 64, cited by appellee, merely purports to declare the statute law of the state of New York on the subject of aliens being made incapable of voting or holding office, and cites the revised statutes of New York as authority. Ruling Case Law, vol. 1, p. 801, § 8, cited by appellee, declaring the rule contended for by him, based its declaration solely on the case of State ex rel. v. Smith, 14 Wis. 539, and other cases which have quoted the language of that one by way of dictum, while distinguishing it and holding that the rule declared by it was not controlling as to the questions then before the court for decision.
It is a fundamental principle that the common law yields at all times where the Constitution or a valid statute contains provisions inconsistent with its rules. Section 236, Burns' 1914; section 236, R. S. 1881; section 1, p. 351, 1 R. S. 1852; section 1, p. 308, Acts 1818; Stevenson v. Cloud, 5 Blackf. 92. The Constitution of the state of Indiana...
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