Connell v. State ex rel. Thompson
| Decision Date | 17 October 1924 |
| Docket Number | 24,614 |
| Citation | 144 N.E. 882,196 Ind. 421 |
| Parties | Connell v. State of Indiana, ex rel. Thompson |
| Court | Indiana Supreme Court |
Rehearing Denied July 3, 1925, Reported at: 196 Ind. 421 at 428.
1. CONSTITUTIONAL LAW.---Legislative authority vested exclusively in legislature, and it is supreme except as limited by state or federal constitution.---The legislative authority of the state is vested exclusively in the general assembly and that body is supreme and sovereign in that respect except so far as its power is limited by some provision of the state or federal constitution or treaties made or acts of congress passed under its authority. p. 426.
2. MUNICIPAL CORPORATIONS.---Legislature has unlimited authority to create municipal offices and prescribe qualifications of officials.---Except so far 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 unlimited. p. 426.
3 OFFICERS.---Federal constitution does not prescribe qualifications of state or municipal officers.---The Constitution of the United States prescribes no qualifications for any state or municipal officers, but only for representatives in congress, senators and the President p. 426.
4 OFFICERS.---Constitutional qualifications of state and county officers stated.---The state Constitution requires that state senators and representatives and the Governor shall be citizens of the United States, but county officers are only required to be electors of their respective counties and inhabitants thereof for one year. p. 426.
5. OFFICERS.---No constitutional qualifications for municipal officers.---The state Constitution does not prescribe any qualifications for city and town officers, but only that they shall reside in their respective city or town and keep their offices therein. p. 426.
6. MUNICIPAL CORPORATIONS.---Legislature has unlimited power in fixing qualifications for the office of city councilman.---Since the Constitution has not prescribed any qualifications for city councilmen, it necessarily follows that the power of the legislature in that respect is unlimited. p. 428.
7. MUNICIPAL CORPORATIONS.---City councilman not required to be citizen of United States. A city councilman is only required to have the qualifications prescribed by 10266 Burns 1926, 8644 Burns' Supp. 1921, Acts 1921 p. 404, and the fact that he is not a citizen of the United States does not disqualify him from holding the office. p. 428.
8. CONSTITUTIONAL LAW.---Constitutional question not considered when not necessary to decision of case under consideration.---The Supreme Court will not consider a constitutional question when the decision thereof is not necessary to the decision of the case under consideration. p. 428.
9. OFFICERS.---Ineligibility at time of election to office does not preclude holding the office if disqualification is removed before commencement of term.---Ineligibility at the time of election to a public office does not preclude holding the office if the disqualification has been removed before the commencement of the term and the claimant is then eligible to fill the office. p. 429.
10. COMMON LAW.---Common law yields to constitutional or statutory provision inconsistent with it.---The common law yields at all times where the Constitution or a valid statute contains provisions inconsistent with its rules. p. 431.
From Tippecanoe Circuit Court; Homer W. Hennegar, Judge.
Information by the State of Indiana, on relation of Mark L. Thompson, prosecuting attorney, against William P. Connell. From a judgment for plaintiff, the defendant appeals.
Reversed.
Clyde H. Jones and Stuart, Simms & Stuart, for appellant.
George P. Haywood, E. Burleigh Davidson and Mark L. Thompson, for appellee.
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...
To continue reading
Request your trial