Ettinger v. Studevent, 27644

Citation38 N.E.2d 1000, 219 Ind. 406
Case DateJanuary 29, 1942
CourtSupreme Court of Indiana

John B. Newlin, of Crawfordsville, for Leslie R. Hole and others.

Linder Seet & Rigot, of Indianapolis, for Charles R. Ettinger and others.

Edward H. Knight, of Indianapolis, Walter E. Helmke, of Ft. Wayne Harry G. Neff, of Anderson, and Raymond O. Evans, of Crawfordsville, for Paul E. Dice.

L. Russell Newgent and William B. Miller, both of Indianapolis, for Charles O. Studevent.

Joseph J. Daniels and Floyd J. Mattice, both of Indianapolis, amici curiae.


These two cases, consolidated for the purpose of oral argument involve the validity of what is popularly known as the 1941 'Skip Election Law,' Ch. 86, Acts 1941, § 29-1813 et seq., Burns' 1933 (Supp.), § 11641-1 et seq., Baldwin's 1941. While the two trial judges reached different conclusions, the arguments are interrelated and one opinion will suffice for both cases.

Prior to 1933 all city elections were held every four years in the year following presidential elections. Ch. 173, Acts 1933, deferred the time of elections to the second year after the presidential election when there is a general statewide election to fill township, county, state and congressional offices. The 1933 Act repealed all prior laws conflicting therewith and provided for the time when city primaries and elections shall be held, and the persons who shall perform the duties necessary to prepare for and hold the election. As a part of this election machinery it was prescribed that county officials should have supervision thereof as a part of the general election.

The 1941 legislature by the act here in question specifically repealed the 1933 Act, substituted election machinery supervised by city officials, and provided that city elections in all except cities of the first class (Indianapolis is the only city in that class) should be held in 1943 and each four years thereafter. Obviously if the classification attempted is valid and the repeal of the 1933 Act effective, no law remains fixing the time or providing the mechanics of an election in Indianapolis.

The law originated as House Bill No. 394 and as introduced applied to all cities in the state. A committee to which it was referred amended the first section by inserting language excepting cities of the first class and at the same time added a 'separability' section. (See section 6, infra.) The Senate made another amendment, immaterial to this discussion, in which the House concurred. Otherwise the act was finally passed in its original form including the title, which is as follows:

'An Act concerning the holding of elections and primary elections for the election of the elective officers of the several cities of the state, fixing the time for holding such elections and primaries, and the procedure in reference thereto, and repealing laws in conflict therewith.'

The first section, with the House Committee's amendment italicized, reads:

'The time for holding the election of all the elective officers of all cities in this state, other than cities of the first class and also in all school cities in the state, other than school cities of cities of the first class, in which the boards of school commissioners or boards of school trustees are elected by the vote of the electors of any such city, shall be and the same is hereby changed from the first Tuesday after the first Monday in November, 1942, to the first Tuesday after the first Monday in November, 1943; and thereafter elections for the elective officers of all such cities shall be held on the first Tuesday after the first Monday of November of every fourth year.'

Sections 2, 3 and 4 provide the mechanics of nominations and elections. Section 5 repeals all laws in conflict therewith and, as before stated, specifically repeals Ch. 173 of the Acts of 1933. Section 6 reads as follows:

'If any one or more sections, sentences, clauses or phrases of this act shall be declared unconstitutional, such decision shall in no sense, invalidate any other part of this act.'

Cause No. 27644 (see title, supra) is an appeal from a declaratory judgment of the Marion Circuit Court holding the act unconstitutional in toto. The other appeal is from a decree of the Montgomery Circuit Court enjoining the holding of a city election in Crawfordsville in 1942. In this suit the trial court sustained the whole act by disregarding the italicized words in section 1, thus making the law apply to all cities in the state including Indianapolis.

Amici curiae have suggested as an alternative theory the judicial construction of the repealing clause so that it would be effective only as to cities other than the first class leaving intact the 1933 law so far as Indianapolis is concerned. In oral argument a fourth possibility was suggested whereby full effect is given the repealing clause thus leaving Indianapolis without time or method for holding an election. These would have to be supplied by a later General Assembly. The last two suggestions are based upon the major premise that cities may be classified for the purpose of fixing the time of holding an election and the personnel of election officials. This premise is unsound.

Section 22 of Article 4 of the Constitution of Indiana forbids the passage of local or special laws on seventeen specified subjects. Section 23 adds: 'In all the cases enumerated in the preceding Section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.' While it has been held that in spite of this strict mandate cities may be classified for some purposes and different laws may be applied to the several classes, the need of separate treatment to adapt the government to the differing requirements of the various classes has been inherent election in Indianapolis in a so-called 'off-year' laws do not require such adaptation. The same reasons suggested for not holding an election in Indianapolis in a so-called 'offyear' apply equally to all other cities of the state. If the expense of a separate city election is not justified in Indianapolis, there is no justification for such expense in Columbus, Anderson or Ft. Wayne. Probably it costs no more per capita for an election in a city of 386,972 population than in one of 10,000. Aside from the question of expense, the only other suggested reason for classification is that as to other kinds of legislation cities have been divided into classes on the basis of population. These bases, so far as elections are concerned, are purely arbitrary and capricious. This is made clear by the excellently reasoned opinion in Wanser v. Hoos, 1897, 60 N.J.L. 482, 38 A. 449, 64 Am.St.Rep. 600, which has been cited with approval in Bullock v. Robison, 1911, 176 Ind. 198, 203, 204, 93 N.E. 998, 1000, and Town of Longview v. City of Crawfordsville, 1905, 164 Ind. 117, 122, 73 N.E. 78, 80, 68 L.R.A. 622, 3 Ann.Cas. 496. See, also, Heckler v. Conter, 1934, 206 Ind. 376, 187 N.E. 878; People v. Board of Election Commissioners, 1906, 221 Ill. 9, 77 N.E. 321, 5 Ann.Cas. 562; State ex rel. Richards v. Hammer, 1880, 42 N.J.L. 435, 440; State v. Buckley, 1899, 60 Ohio St. 273, 54 N.E. 272.

Inasmuch as the attempted classification can not stand, we are driven to the position taken by one of the two judges whose decisions we are reviewing. Both positions are based upon the invalidity of the attempted classification. Either the act must be construed to apply to all cities of the State or it is void in toto. We approach the consideration of these alternatives fully realizing that all reasonable intendments are to be taken in favor of the validity of the legislative act. But we appreciate as well that in order to make that act valid we must not ourselves legislate. If we can ascertain the legislative intent we must give it effect but only to the extent permitted by established principles of statutory construction within constitutional limitations.

Counsel for appellee Dice base their argument on the separability of the clause excluding cities of the first class. By striking it out, the act is left in substantially the form of the original House Bill No. 394. This obviously would have made a valid, sensible, complete, election statute operating uniformly as to time, methods and conditions in all cities of the state in years when such elections would be 'free from the variant influences of national, state, county and township issues.' Such doubtless was the object of the persons who framed and introduced the bill. But we are concerned not with their intent, which was superceded by the amendment, but with the intent of the General Assembly by which the bill was enacted into law, for 'the problem of separability is primarily a problem of determining the legislative intent.' Williams v. Standard Oil Co. of Louisiana, 1929, 278 U.S. 235, 238, 49 S.Ct. 115, 73 L.Ed. 287, 60 A.L.R. 596; Carter v. Carter Coal Co., 1936, 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; Cashin v. State Highway Comm., 1933, 137 Kan. 744, 22 P.2d 939. For that purpose courts have looked to the history of the act, Farmersville v. Texas-Louisiana Power Co., Tex.Civ.App.1932, 55 S.W.2d 195, reversed, Tex.Com.App.1935, 67 S.W.2d 235, McFarland v. City of Cheyenne, 1935, 48 Wyo. 86, 42 P.2d 413; the objectives sought by the legislature, Smith v. Thompson, 1934, 219 Iowa 888, 258 N.W. 190; the context of the act, Smith v. Thompson, supra; the title, Carter v. Carter Coal Co., supra, McFarland v. Cheyenne, supra; the preamble, Carter v. Carter Coal Co., supra; and the existence of an emergency, Farmersville v. Texas-Louisiana Power Co., supra. And we here look...

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  • Ettinger v. Studevent, s. 27644
    • United States
    • Indiana Supreme Court of Indiana
    • January 29, 1942
    ...219 Ind. 40638 N.E.2d 1000ETTINGER et al.v.STUDEVENT.HOLE et al.v.DICE.Nos. 27644, 27661.Supreme Court of Indiana.Jan. 29, Appeal from Marion Circuit Court; Earl R. Cox, Judge. Appeal from Montgomery Circuit Court, Edgar A. Rice, Judge. Action in Marion Circuit Court between Charles O. Stud......

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