Keane v. Remy, s. 25788

• Decision Date: 24 September 1929
• Docket Number: 25789.,Nos. 25788,s. 25788
• Citation: 168 N.E. 10,201 Ind. 286
• Parties: KEANE v. REMY et al. SAME v. HOLMES, Com'r, et al.
• Court: Indiana Supreme Court

201 Ind. 286

168 N.E. 10

KEANE

v.REMY et al.

SAME

v.HOLMES, Com'r, et al.

Nos. 25788, 25789.

Supreme Court of Indiana.

Sept. 24, 1929.

Appeal from Superior Court, Marion County; Wm. O. Dunlavy, Judge.

Consolidated suits by Clifford E. Keane against William H. Remy and others and against Ira Holmes, Commissioner, and others. From judgments for the defendants, plaintiff appeals. Reversed.Samuel Ashby, Clinton H. Givan, and Sumner Clancy, all of Indianapolis, for appellant.

Charles E. Cox, Fred C. Gause, Ralph Kane, and T. Groninger, all of Indianapolis, for appellees.

TRAVIS, J.

These are suits in equity to enjoin the defendants in case No. 25788, acting as the board of election commissioners under the act here in question, “An act to provide alternative forms of government for cities adopting the same,” approved March 10, 1921 (Acts 1921, c. 218, p. 594), from expending moneys of the city of Indianapolis, contracting debts for the printing of ballots, books, pamphlets, etc., as prescribed by the law for the holding of an election under this act on the 5th day of November, 1929, for the purpose of electing city commissioners under the city manager form of government. Appellees in cause No. 25788 demurred to the complaint, which demurrer was sustained by the court, and appellants refused to plead further, and, standing upon their complaint, judgment was rendered for appellees, from which appellant appealed.

In case No. 25789 appellant sought to enjoin appellees from proceeding under the City Manager Law (Acts 1921, c. 218, p. 594) from taking any steps to expend funds of the city or incur debts against the city for the printing of ballots, affidavits, books, pamphlets, and from taking any steps in giving notice of any general municipal election to be held under said act, and that appellee be required to permit appellant to vote on November 5, 1929, for the office of mayor, councilmen, and city clerk of the city, and that they be required to perform their duty as election commissioners under and by virtue of the act concerning municipal corporations, approved March 6, 1905 (Acts 1905, c. 129, p. 219), and all acts amendatory thereto, and that they be permanently enjoined from proceeding under the alleged invalid law entitled “An act to provide for alternative forms of government for cities adopting the same” (Acts 1921, supra). The sole issue decided was whether or not appellant was entitled to have an interlocutory injunction and a mandatory injunction as prayed. Upon the submission of the cause the only evidence presented was the verified complaint of appellant introduced in his behalf. The judgment of the court entered June 12, 1929, was that the temporary injunction prayed be denied and refused. From judgment appellant appeals, which appeal was perfected June 27, 1929, and ordered submitted by this court July 21, 1929.

These cases present the same question, whether or not the act to provide alternative forms of government for cities adopting the same is impossible of performance and unconstitutional. They are therefore consolidated upon appeal by the court. Appellant's crucial proposition in each case, respectively, is that the act (Acts 1921, p. 594, c. 218) is invalid, and violates the Constitution. It is claimed in each case under this proposition that several of the sections among the 69 sections which compose the act are invalid, unconstitutional, and therefore void. For the sake of these appeals it is necessary to consider only section 3 of the act.

Before the special election to determine whether the city government should be changed maybe ordered by the legislative authority of the city, as provided by section 4 of the act, the clerk of the city must have certified to such legislative authority that a sufficient petition as required by section 3 of the act has been filed with him, requiring that the question of adoption of such manager form of government be submitted to the electors of the city. Such election was held in the city June 21, 1927, and it is alleged that the appellees claim and assume that the city adopted the city manager form of government as provided in the act at such election. Such petition, as required by section 3 of the act, to be effective, must be signed by electors of the city equal in number to at least 20 per cent. of those who voted at the last preceding municipal general election, and it is averred that at the city election held in 1925 there were to exceed 95,000 votes cast for the office of mayor. It was necessary, therefore, that a petition requesting such election be filed with the city clerk, signed by electors of the city in a number at least to equal 19,000. The petition, according to section 2 of the act, is addressed to the council (common council) or other legislative body of the city. But before such petition can become a foundation for action in relation thereto by such legislative body to order a special election, as provided by section 4, jurisdiction is given to the clerk of the city to determine the sufficiency of such petition. He shall, within five days after such petition was filed with him, complete an examination to determine whether it is signed by a sufficient number of qualified electors, and, upon his finding and judgment that such petition has been so signed, his certificate as the result of such finding and judgment shall, with the petition itself, be sufficient foundation for the action of the legislative body of the city to order the special election, as provided by section 4 of the act.

[1] The complaint challenges the action of the clerk of the city in certifying to the legislative body of the city that the petition had been signed by a sufficient number of qualified electors, for the reason that the work necessary for such clerk of the city to perform in determining whether such 19,000 electors were qualified or not is an impossible requirement. The qualification of an elector in this state, as required by the Constitution (article 2, § 2) is that he must be (1) a citizen of the United States, (2) of the age of 21 years and upwards, (3) who shall have resided in the state during the 6 months, (4) and in the township 60 days, (5) and in the ward or precinct 30 days, immediately preceding an election. Unless a citizen possesses these requirements, he is not entitled to vote, and thereby is not an elector, within the meaning of section 3 of the act, which provides who are qualified to sign such petition. By the wording of section 3 in relation to this point, it is the mandatory obligation of the clerk of the city to determine whether each one of the persons who signed such petition is a qualified elector. Such qualification includes the five things mentioned in the Constitution as above set forth. At no place in the act is the judicial machinery set up which determines a mode of procedure necessary for the clerk of the city to follow to reach a determination as required by the act upon which he is to base his certificate. Granting that the clerk, in the absence of a method of procedure in the act, may prescribe a method of procedure himself, such procedure must be reasonable and sufficient to attain the end sought by the act, which is that each petitioner must be a qualified elector, and that a sufficient number of such petitioners to number 20 per cent. or more of those who voted at the last preceding general municipal election must have signed such petition, in order to invest the clerk with power to certify the petition to the legislative body of the city.

[2] If it be granted that the clerk was able mentally and physically to continue this examination of the petition, as required by the act, for 5 days without sleep or nourishment, he would have 120 hours, or 7,200 minutes, in which to perform this duty. Under such a schedule of work, for every minute of the 7,200 minutes, he must examine and determine whether or not 2 63/100 petitioners are qualified as such under the requirements provided by the Constitution. If he worked but 12 hours a day in such examination of such petition, it would be necessary for him to pass upon the petitioners at the rate of more than 5 a minute. It is a matter of common knowledge, of which the court may take notice, that the work required of the clerk of the city in examining the petition in the case at bar, as he is by the law required to do, is a mental and physical impossibility.

[3] The act of determining whether a petitioner is a qualified elector or not, and deciding upon such determination whether or not he should be counted as one of the 20 per cent. necessary to prevail, is judicial. There must be a finding concerning the qualifications of the petitioner under the Constitution, upon which is based the conclusion or judgment whether his name should be counted or not be counted. These acts are in no sense ministerial. Ministerial functions do not empower a public officer to adjudge upon the matter before him. But by virtue of section 3 of the act he was clothed with the judicial character when acting by the authority enacted by that section, which authority the Legislature was empowered to confer. Baltimore & Ohio R. Co. v. Town of Whiting (1903) 161 Ind. 228, 233-238, 68 N. E. 266. The clerk of the city acts judicially when performing the duty enjoined upon him by section 3 of the act. In this, so far as he acts judicially in making his finding and judgment, upon which rests his certificate to the legislative body, he acts alone. Such acts, being judicial in their nature, cannot be delegated to a deputy or to commissioners. The powers of a judicial officer may not be surrendered or delegated to another, unless authorized by law. Waldo v. Wallace (1859) 12 Ind. 569, 572.

[4][5][6] It is a judicial function of the courts to pass upon a statute enacted by a Legislature to determine whether the act is a competent expression of the legislative will, and further, if the act provides no...