Harrell v. Sullivan

• Decision Date: 16 March 1942
• Docket Number: 27662.
• Parties: HARRELL et al. v. SULLIVAN, Judge, et al.
• Court: Indiana Supreme Court

40 N.E.2d 115

220 Ind. 108

HARRELL et al. v. SULLIVAN, Judge, et al.

No. 27662.

Supreme Court of Indiana

March 16, 1942

Rehearing Denied May 4, 1942.

See 41 N.E.2d 354. [Copyrighted Material Omitted]

Appeal from Jasper Circuit Court; 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 appellees Dan Pyle, Frank J. Bruggner and Aaron H. Huguenard.

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

SHAKE Chief Justice.

The appellees are the duly elected or appointed, qualified and acting judges and clerks of the circuit courts, and the Democratic and Republican county charimen of Lake, Allen, Madison, St. Joseph, Vigo, Vanderburgh, and Marion counties. The case involves the constitutionality of Chapter 100, Acts of 1941, Burns' 1933 Supp. § 29-306, § 29-309, § 29-320, § 29-321, § 29-327, § 29-331, § 29-332, and § 29-342, Baldwin's 1941 Supp. § 7304, § 7307, § 7318, § 7319, § 7325, § 7329, § 7330, and § 7304-1. The Jasper Circuit Court held the act valid.

The amended complaint alleges that the appellants are residents, taxpayers, and voters of Marion, Lake, and Madison counties; that they are entitled to the right and privilege of voting at all general elections held therein; that they are interested in seeing that all the voters of the state are legally and properly registered; and that the establishment and maintenance of the system of registration provided for in said act will greatly increase the taxes which the appellants will be required to pay. It is contended by the appellees that the complaint discloses that the appellants have no right to maintain this action. The rule that to enforce private rights the plaintiff must show an injury to his person, property, or reputation is not applicable to an action for the preservation of public or political rights. The appellants have sufficiently alleged their capacity to sue. Hamilton, Auditor, v. State, 1852, 3 Ind. 452; Brooks v. State ex rel., 1904, 162 Ind. 568, 70 N.E. 980; Zoercher v. Agler, 1930, 202 Ind. 214, 172 N.E. 186, 907, 70 A.L.R. 1232.

Chapter 100 provides that in each county having a population of 80,000 or more there shall be a board of registration composed of a member from each of the two political parties which cast the highest and next highest number of votes for secretary of state in such county at the last preceding general election, who shall be appointed or removed by the judge of the circuit court upon the written recommendation of the respective county chairmen of such political parties. In counties with a population of less than 80,000 the clerk of the circuit court is made, ex officio, the sole registration officer. Such registration officials are given authority to appoint clerks and deputies on like recommendations of the county chairmen, but these shall likewise be equally divided between the two major political parties. The state and local health officers are required to report the names ages, and last-known addresses of deceased persons to the proper registration officers at the end of each calendar month. Beginning 65 days before and ending 29 days prior to any primary, general, or city election the board of registration in every county with a population of 80,000 or more is required to forward copies of each voter's registration record to the county chairmen of the two major political parties within 48 hours after the same are made. The registration of a voter is made permanent so long as his place of residence remains unchanged and he exercises the right of franchise, but such registration may be canceled for failure to vote, in which event it may be reinstated on application. The act contains many other provisions but the above summary is sufficient for the purposes of this opinion.

It is contended that the act under consideration is unworkable and, therefore, void because it creates boards of registration in certain counties composed of two members of opposite political affiliations with no provisions for settling disputes between them in the event of a disagreement and because the obligations imposed upon health officers with respect to reporting deaths are impossible of performance in point of time. In support of these contentions the appellants rely on Keane v. Remy, 1929, 201 Ind. 286, 168 N.E. 10, which is authority for the statement that a legislative act may be declared invalid if it does not, in some manner, provide sufficient means whereby it may be executed. This is undoubtedly true, but Chapter 100 is not open to that objection. The means of execution are provided, and this court must presume that the public officers referred to in the act can and will discharge the duties imposed upon them according to law. Southern Indiana Gas & Elec. Co. v. City of Boonville, 1939, 215 Ind. 552, 20 N.E.2d 648. There may be differences of opinion as to the wisdom or efficiency of the act, but these pertain to matters of policy for which the legislature alone is responsible.

It is also urged that the provisions of the act requiring health of officers to furnish registration officials with certain information concerning the names, ages, and last-known addresses of deceased persons are without the title. The title embraces the subject of 'the permanent registration of voters' and is broad enough to include any matter properly relating to that subject. We cannot say that the provisions calculated to supply registration officers with vital statistics essential to the discharge of their duties are not germane to the subject indicated by the title.

As has already been pointed out, clerks of circuit courts are made registration officers in counties with a population of less than 80,000, while in counties of a larger population provision is made for registration boards of two members. We judicially know that there are seven counties in the latter category. The appellants, therefore, say that the act transgresses Art. 4, § 23, of the state Constitution, which requires that all laws shall be general and of uniform operation throughout the state where a general law can be made applicable. Under this mandate of the Constitution it has been uniformly held that a classification of the subjects of legislation must have a reasonable basis on which to stand, and must operate equally upon all and embrace all within the class, and the reason for the classification must inhere in the subject-matter and must be natural and substantial. Hirth-Krause Co. v. Cohen, 1912, 177 Ind. 1, 97 N.E. 1, Ann.Cas.1914C, 708. In the statute before us the classification is upon the basis of population. We think there is a natural and substantial basis for this classification which is inherent in the subject-matter with which the statute deals. The number of voters in a given county bears a direct relationship to the population, and the burdens with respect to registration will be consequently heavier in the more populous counties. This justifies more complex machinery for administering the registration law in counties with a large population.

By the terms of the act members of registration boards are required to be selected in equal numbers from the two political parties which cast the highest and the next highest number of votes for secretary of state in the county at the last preceding general election. In other words, no person may be eligible to serve as an officer of a registration board unless he holds membership in one of the two major political parties operating in his county. Those affiliated with minor parties and independent voters are, in effect, declared to be ineligible. This presents the question as to whether these provisions violate § 23 of Art. 1 of our Constitution, which is as follows: 'The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.'

This subject was before this court in City of Evansville et al. v. State ex rel. Blend et al., 1889, 118 Ind. 426, 435, 21 N.E. 267, 270, 4 L.R.A. 93, 97. In that case the court had under consideration the provisions of a statute requiring that officers and employees of police and fire departments in certain cities should be divided 'equally between the two leading political parties of said cities'. Acts of 1889, Ch. 112, § 3, p. 224. Berkshire, J., speaking for the court said:

'The act classifies the citizens of the two cities to which it applies, as to the positions and employments on the police force and in the fire department, by requiring that all officers and employees be selected from the two leading political parties found in these cities.

'It is well-known that members of probably a half-dozen political parties reside in these cities, and that a large number of citizens who belong to no particular party reside therein. All of these persons are disqualified for positions and employment in either of the departments named.

'If it is competent for the Legislature to require, as a test for position or employment under the provisions of the act under consideration, membership in a political party or organization, it is difficult to understand why a religious or any other test may not be made.

'We are of the opinion that in so far as the act * * * prescribes a political test, it contravenes the Constitution. It is not only in violation of the spirit, but of the letter, of section 23, art. 1.'

Within the year this court again had occasion to consider what qualifications the general assembly might impose as a condition of eligibility to hold...