Harrell v. Sullivan

• Decision Date: 04 May 1942
• Docket Number: 27662.
• Citation: 41 N.E.2d 354,220 Ind. 108
• Parties: HARRELL et al. v. SULLIVAN, Judge of Lake Circuit Court, et al.
• Court: Indiana Supreme Court

41 N.E.2d 354

220 Ind. 108

HARRELL et al. v. SULLIVAN, Judge of Lake Circuit Court, et al.

No. 27662.

Supreme Court of Indiana

May 4, 1942

For former opinion, see 40 N.E.2d 115.

Appeal from Circuit Court, Jasper County; Moses Leopold Judge.

George E. Hershman and Samuel F. Sirois, both of Crown Point, and Victor K. Roberts, of Lowell, for appellants.

Frank L. Greenwald, of Gary, Emmet M. La Rue, of Rensselaer, and Aaron H.

Huguenard of South Bend, for appellee Dan Pyle and others.

Arthur H. Fruechtenicht and John H. Logan, Jr., both of Ft. Wayne for appellee Fruechtenicht.

SHAKE Chief Justice.

The only proposition sought to be presented by the appellees' petition for rehearing and their supporting brief that has not already had thorough consideration is this: It is now asserted that the original opinion inferentially strikes down other statutes pertaining to the political complexion of local, county, and state election boards that have been unchallenged for more than sixty years. Arguing from this premise it is contended that there has been such acquiescence in legislation of the character embraced in Chapter 100, Acts of 1941, that its constitutionality ought to be accepted.

The other acts referred to by the appellees are those relating to the appointment of members of the state board of election commissioners (Acts 1889, Ch. 87, § 16, p. 157, § 29-1001, Burns' 1933, § 7108, Baldwin's 1934); county boards of election commissioners (Acts 1889, Ch. 87,§ 17, p. 157, § 29-1002, Burns' 1933, § 7109, Baldwin's 1934); precinct election boards (Acts 1929, Ch. 150, § 4, p. 471, § 29-807, Burns' 1933,§ 7096, Baldwin's 1934); assistant poll clerks to precinct election boards (Acts 1920, Spec. Sess., Ch. 11, § 4, p. 41, § 29-904, Burns' 1933, § 7149, Baldwin's 1934); county boards of primary election commissioners (Acts 1915, Ch. 105, § 4, p. 359; Acts 1917, Ch. 117, § 2, p. 354, § 29-504, Burns' 1933, § 7190, Baldwin's 1934); counters for county boards of convassers in primary elections (Acts 1939, Ch. 113, § 6, p. 559, § 29-567, Burns' 1933, Dec. 1941 Supp., § 7245-6, Baldwin's 1934, May 1939 Supp.); and precinct boards for primary elections (Acts 1915, Ch. 105, § 5, p. 359, § 29-505, Burns' 1933, § 7191, Baldwin's 1934). Each of the above acts provides that the members of the respective boards referred to therein shall be appointed by or upon the binding recommendation of certain officers of the political parties which cast the highest and next highest vote at a preceding election.

Laws regulating the nomination of candidates for public office at primaries rest upon an entirely different foundation from those pertaining to general elections. Statutes providing the machinery for holding elections proper have been enacted to give vitality to the express mandates of the Constitution of Indiana, which directs that certain public officers shall be elected by the people, fixes the qualifications of voters and requires that all elections shall be free and equal. On the other hand, laws providing for primary elections are in the exercise of the police power of the state. Cunningham v. Cokely, 1916, 79 W.Va. 60, 90 S.E. 546, L.R.A.1917B, 718. 'The words 'primary election' are well understood to mean the act of choosing candidates by respective political part...