Crampton v. O'Mara

• Decision Date: 18 May 1923
• Docket Number: No. 24089.,24089.
• Citation: 139 N.E. 360,193 Ind. 551
• Court: Indiana Supreme Court
• Parties: CRAMPTON v. O'MARA.

193 Ind. 551

139 N.E. 360

CRAMPTON

v.O'MARA.

No. 24089.^*

Supreme Court of Indiana.

May 18, 1923.

Appeal from Circuit Court, Vigo County; John P. Jefferies, Judge.

Action by Harry C. Crampton against Joseph O'Mara. Judgment sustaining a demurrer to complaint, and plaintiff appeals. Reversed, with instructions to overrule demurrer.Stimson, Stimson & Davis and J. T. Walker, all of Terre Haute, for appellant.

Henry W. Moore and Otis Cook, both of Terre Haute, for appellee.

TOWNSEND, J.

[1] At the November, 1921, election, appellee was chosen councilman from the Sixth ward of the city of Terre Haute, Ind., for a term of four years, beginning in January, 1922. Appellant, a voter, brought this suit to contest appellee's election. A demurrer was sustained to the complaint. This ruling is assigned as error.

On April 6, 1915, in the United States District Court for the District of Indiana, appellee was convicted of conspiring with others to deprive citizens of the United States of the right and privilege of voting at the general election for United States Senator and Representative to Congress, from the Fifth district of Indiana. He was sentenced to serve one year and one day in the United States Penitentiary at Leavenworth, Kan. There was no appeal, no reversal, and no pardon.

This conviction is the basis of the contest in the present case. By the complaint, not only chapter 83, Acts 1921, p. 179, is invoked, but also clause 3, § 7008, Burns' 1914, is relied upon. Chapter 83, supra, provides that one convicted of any violation of the laws of the United States for which the sentence imposed exceeds six months shall be disqualified. Clause 3, § 7008, Burns' 1914, makes it a ground of contest that the contestee “Shall have been convicted of an infamous crime, such conviction not having been reversed nor such person pardoned at the time of such election.” The validity of these statutes under the state and federal Constitutions is questioned. It is contended that they are ex post facto and, in their nature, bills of attainder.

If the language used in Cummings v. Missouri (1866) 4 Wall. 277, 18 L. Ed. 356, and in Ex parte Garland (1866) 4 Wall. 333, 18 L. Ed. 366, were applied in a broad sense, both acts in question would be void; but the Supreme Court of the United States has not so applied it. Hawker v. New York (1898), 170 U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002. Hawker had been convicted of the crime of abortion and, about 23 years later, the state of New York passed a law making it a misdemeanor for any one to practice medicine who had been convicted of a felony. He was convicted under this statute. On writ of error, the Supreme Court of the United States said:

“Defendant relies largely on Cummings v. The State of Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333. In the first of these cases a test oath, containing some thirty distinct affirmations respecting past conduct, extending even to words, desires, and sympathies, was prescribed by the state of Missouri upon all pursuing certain professions or avocations; and in the second a similar oath, though not so far reaching in its terms, was required by Act of Congress of those who sought to appear as attorneys and counselors in the courts of the United States. It was held that, as many of the matters provided for in these oaths had no relation to the fitness or qualification of the two parties, the one to follow the profession of a minister of the gospel and the other to act as an attorney and counselor, the oaths should be considered not legitimate tests of qualification, but in the nature of penalties for past offenses. These cases were called to our attention in Dent v. West Virginia, supra, in which the validity of a statute of West Virginia imposing new qualifications upon one already engaged in the practice of medicine was presented for consideration. After pointing out the distinguishing features of those cases, this court summed up the matter in these words (p. 128):

‘There is nothing in these decisions which supports the positions for which the plaintiff in error contends. They only determine that one who is in the enjoyment of a right to preach and teach the Christian religion as a priest of a regular church, and one who has been admitted to practice the profession of the law, cannot be deprived of the right to continue in the exercise of their respective professions by the exaction from them of an oath as to their past conduct, respecting matters which have no connection with such professions. Between this doctrine and that for which the plaintiff in error contends there is no analogy or resemblance. The Constitution of Missouri and the act of Congress in question in those cases were designed to deprive parties of their right to continue in their professions for past acts or past expressions of desires and sympathies, many of which had no bearing upon their fitness to continue in their professions. The law of West Virginia was intended to secure such skill and learning in the profession of medicine that the community might trust with confidence those receiving a license under authority of the state.”’

Then analogous cases (Ex parte Wall [1882] 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552, and Gray v. Connecticut [1895] 159 U. S. 74, 15 Sup. Ct. 985, 40 L. Ed. 80) were cited and considered applicable to and decisive of Hawker's Case.

We shall therefore be content with the interpretation put upon the Cummings and Garland Cases by the Supreme Court of the United States, and hold that neither of the statutes under consideration in the present case violates any of the provisions of the federal Constitution.

[2] The so-called right to hold office is not a natural or inherent right. It is a privilege which arises from the organization of our civil society. If there is nothing in our fundamental law guaranteeing the privilege, then the people, through their official agency, the Legislature, may take it away.

[3] Let us now consider our own constitutional limitation as applied to the two statutes in question. Article 2 of our Constitution, on the subject of suffrage and elections, has 14 sections, all of which are self-executing, except section 8...