Gougar v. Timberlake

• Decision Date: 24 February 1897
• Docket Number: 17,760
• Citation: 46 N.E. 339,148 Ind. 38
• Parties: Gougar v. Timberlake et al
• Court: Indiana Supreme Court

46 N.E. 339

148 Ind. 38

Gougar v. Timberlake et al

No. 17,760

Supreme Court of Indiana

February 24, 1897

Rehearing Denied May 21, 1897.

From the Tippecanoe Superior Court.

Affirmed.

H. B Sayler, S. M. Sayler, J. M. Sayler, Helen M. Gougar and John D. Gougar, for appellant.

A. A Rice and W. S. Potter, for appellees.

OPINION

Hackney, J.

The question in this case is, have women, under existing laws in this State, the privilege of suffrage, or is sex a qualification upon the right to vote for public officers?

The constitution of this State, article 2, section 2, provides that, "In all elections not otherwise provided for by this Constitution, every male citizen of the United States, of the age of twenty-one years and upward," etc., "shall be entitled to vote," etc. The statute as to the qualification of electors, section 6192, Burns' R. S. 1894, is substantially in the language of the constitution cited. It will be observed that the language employed grants to males the right to vote, and that it does not expressly negative the privilege to female citizens.

In this respect our constitution is like that of every state in the Union, and proceeds upon the assumption that the privilege of voting is not an inherent or natural right, existing in the absence of constitutional and legislative grant and to be limited or restricted only by constitutional or legislative provision. If this assumption is correct, and there is no right of suffrage except as it is given by the constitution and written laws, we have reached the solution of the question at issue. Back of the constitution, and resting with those having the power to make and unmake constitutions, is the fountain and source of all power. From that source we receive such political rights as we possess, and our concurrence in the constitution is our consent to such an abridgment of our natural rights as that sacred instrument may contain. If suffrage is a natural right, it is not abridged as to any citizen on account of sex, but if it is a political privilege it is held only by those to whom it is granted. That it is a political privilege and not a natural right has been affirmed, not only in this assumption of the framers of every constitution in the land, but it has been declared by all authority and precedent without exception.

Judge Cooley, in his Principles of Constitutional Law, p. 248, declares that "participation in the suffrage is not of right, but it is granted by the state on a consideration of what is most for the interest of the state. Nevertheless, the grant makes it a legal right until it is recalled, and it is protected by the law as property is." Again he says, p. 259, "During the last quarter of a century, while the agitation for an enlargement of civil rights has been violent, sentiment has had a great and extraordinary influence on public affairs in America. It has much affected the discussion of political privileges, and considerable numbers have insisted that suffrage was a natural right, corresponding to the right to life and liberty, and equally unlimited. Unless such a doctrine is susceptible of being given practical effect, it must be utterly without substance; and so the courts have pronounced it." One of the reasons for this conclusion, said by the distinguished jurist to be insurmountable, is, that "suffrage cannot be the natural right of the individual, because it does not exist for the benefit of the individual, but for the benefit of the state itself. Suffrage is participation in the government: in a representative country it is taking part in the choice of officers, or in the decision of public questions. * * * The purpose is therefore public and general, not private and individual. * * * Suffrage must come to the individual, not as a right, but as a regulation which the state establishes as a means of perpetuating its own existence, and of insuring the people the blessings it was intended to secure." Id. p. 260. See to the same effect, Cooley's Const. Lim. (6th ed.), p. 752; Story on the Constitution (5th ed.), ch. 9, sections 577-584; Black's Constitutional Law, p. 466; 2 Burgess Political Science, p. 110; Minor v. Happersett, 21 Wall. (U.S.) 162, 22 L.Ed. 627; Anderson v. Baker, 23 Md. 531; 2 Lieber's Miscellaneous Writings, pp. 204, 205; Bloomer v. Todd, 3 Wash. Terr. 599, 19 P. 135; Morris v. Powell, 125 Ind. 281, 25 N.E. 221; 2 Bryce's Am. Com., p. 437.

Black, supra, says: "It has sometimes been contended that the right to take part in the administration of government or in the choice of those who are to make and execute the laws, by means of the ballot, is a natural right, standing in the same category with the rights of life, liberty, and property. * * * But it remains not less true that the right of suffrage is not a natural right, but a political right; not a personal right, but a civil right. It does not owe its existence to the mere fact of the personality of the individual, but to the constitution of civil government. Nor is it even a necessary attribute of citizenship. These principles are established by the following considerations. First, the exercise of an absolutely universal suffrage would imperil the very continuance of the government. Second, the right of suffrage does not exist for the benefit of the individual, but for the benefit of the state itself. Third, there have been restrictions upon the suffrage in all democratic or republican governments known to history, even the most free."

After presenting some of the reasons for and against a more universal suffrage, Mr. Justice Story, section 581, supra, says: "Without laying any stress upon this theoretical reasoning, which is brought before the reader, not so much because it solves all doubts and objections, as because it presents a view of the serious difficulties attendant upon the assumption of an original and unalienable right of suffrage, as originating in natural law, and independent of civil law, it may be proper to state that every civilized society has uniformly fixed, modified, and regulated the right of suffrage for itself, according to its own free will and pleasure." Again he says, in concluding section 582, "So that we have the most abundant proofs that among a free and enlightened people, convened for the purpose of establishing their own forms of government and the rights of their own voters, the question as to the due regulation of the qualifications has been deemed a matter of mere state policy, and varied to meet the wants, to suit the prejudices, and to foster the interest of the majority. An absolute, indefeasible right to elect or be elected seems never to have been asserted on one side or denied on the other; but the subject has been freely canvassed as one of mere civil polity, to be arranged upon such a basis as the majority may deem expedient with reference to the moral, physical, and intellectual condition of the particular state."

Dr. Lieber says, supra, "The adoption of universal suffrage has led many persons to the belief and broad assertion that the right of voting is a natural right, and if it is a natural right, it ought, as a matter of course, to be extended to women; while, on the other hand, many persons seem to profess that no qualification whatever * * * should be demanded as a requisite for the right of voting. All these are erroneous conceptions. * * * But how can so special a right as that of voting for a representative be a natural right, when the representative government itself is something that does not spring directly from the nature of man, however natural it may be in another sense of the word--that is to say, consistent with the progress of civilization? It is the latest and highest of all civilized governments; but where was the natural right of suffrage under the patriarchal government--in the Mosaic commonwealth, founded on a hereditary and priestly nobility; where in the Asiatic despotism--types of government necessary in their season--when nothing and nobody was voted for? * * * The representative system is the only means of protecting individual liberty, and preventing democratic despotism. The right of suffrage, therefore, is a noble right, or ought to be so; but it is not a natural right. It is a political right, to which Providence has led man in the progressive course of history."

In Morris v. Powell, 125 Ind. 281, 315, 25 N.E. 221, this court said: "It is because this right of suffrage is a political right, abiding in the fountain of power, that the legislature cannot lay so much as a finger upon it, except when expressly authorized by the organic law, and for this reason it is that the legislature cannot make a classification of its own, no matter whether there is or is not equality. It is because the right of suffrage is a political right, as has been decided by the Supreme Court of the United States, and by other courts, that the provisions of the Constitution respecting the bestowal of special privileges and immunities have no application to legislation upon the subject."

Our constitution sought to establish a representative government a government wherein only limited numbers express the will of all the people; and it was declared that those to represent the whole number should be males, possessing the qualifications enumerated. The government thus established is but the agent or trustee of the State, the people; and it has derived its authority through the constitution. In forming this government the people declared that their authority should be exercised by and at the command of males of a designated class. That the exercise of such authority may be entrusted to enlarged classes with fewer restrictions, there is and can be no doubt; but to do so is with those who gave the...