Murphy v. Schilling

• Decision Date: 22 May 1979
• Docket Number: 579S135,Nos. 2-577A186,s. 2-577A186
• Citation: 271 Ind. 44,389 N.E.2d 314
• Parties: Mary L. MURPHY, Appellant (Plaintiff below), v. Keith SCHILLING, Trustee of Fairfield Township, Tippecanoe County, Indiana, Ronald Elly, James F. Murtaugh and Albert E. Martin, Individually and as members of the Advisory Board of Fairfield Township, Tippecanoe County, Indiana, and Theodore L. Sendak, Attorney General of the State of Indiana, Appellees (Defendants below).
• Court: Indiana Supreme Court

Page 314

389 N.E.2d 314

271 Ind. 44

Mary L. MURPHY, Appellant (Plaintiff below), v. Keith SCHILLING, Trustee of Fairfield Township, Tippecanoe County, Indiana, Ronald Elly, James F. Murtaugh and Albert E. Martin, Individually and as members of the Advisory Board of Fairfield Township, Tippecanoe County, Indiana, and Theodore L. Sendak, Attorney General of the State of Indiana, Appellees (Defendants below).

Nos. 2-577A186, 579S135.

Supreme Court of Indiana.

May 22, 1979.

Edward Chosnek, Lafayette, for appellant.

Theo. L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, J. Frederick Hoffman, Lafayette, for appellees.

GIVAN, Chief Justice.

This cause is on petition to transfer under the emergency provisions of AP. 4(A)(10). The facts, according to a stipulation by the parties, are that plaintiff-appellant Mary L. Murphy is a bona fide resident of Fairfield Township of Tippecanoe County. On November 5, 1974, Murphy was duly elected as a member of the Advisory Board of Fairfield Township, which election was certified the following day by the Clerk of the Tippecanoe Circuit Court. However, when Mrs. Murphy attempted to assume the duties of the office she was refused on the ground that she was not qualified to take office under IC § 17-4-28-1 (Burns 1974). The statute requires members of the Advisory Board to be resident freeholders of the township. Murphy owns no real estate in Fairfield Township. Hence, at the first annual meeting of the Advisory Board, they appointed Albert E. Martin to fill the vacant position.

In September, 1975, Murphy sued the Township Trustee, the members of the Advisory Board and the Attorney General of Indiana for her commission on the ground that the freehold requirement constitutes an arbitrary denial of due process of law and equal protection under the Fourteenth Amendment to the United States Constitution and Article I, §§ 12 and 23 of the Constitution of Indiana. Following the stipulation of facts, the trial court rendered judgment for the defendants.

The appeal was filed in the Court of Appeals and was fully briefed by September, 1977. However, on September 21, 1977, appellant Murphy filed a petition to transfer, alleging that only 15 months remained in the 48-month term for which she originally was elected. She therefore urged this Court to grant transfer immediately and render a final disposition of the issues raised. Unfortunately, due to an error in the handling of the case by this Court, the case bundle was misplaced. The oversight was brought to our attention when earlier this year the appellees filed a motion to dismiss the appeal as moot, since the term of office for which Murphy was elected had expired. The appellant has in no way contributed to the delay in the decision of her case by this Court. She has filed a brief in opposition to the motion to dismiss and has specifically requested us to decide the issues arising in the case. Since the questions raised by this appeal are likely to recur, and since the delay was the fault of this Court and not that of appellant, we will decide the issues on their merits. The motion to dismiss is hereby overruled.

The traditional view that legislation will be sustained against an equal protection challenge if it is shown to have any rational or reasonable relation to a legitimate State purpose has in recent years been refined by decisions of the United States Supreme Court. Where the statute involves legislative classifications based upon "suspect criteria" or affecting "fundamental rights", the enactment will now be upheld only if it is shown to be necessary to implement a compelling State interest. Schilb v. Kuebel (1971) 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502; Shapiro v. Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. Appellant argues that because the Township Advisory Board statute involves the "fundamental right" to hold public office and employs a "suspect classification" based on wealth, we should apply this exacting level of judicial review in adjudging its constitutionality.

It is somewhat unclear whether a factual situation, as in the case at bar, is to be treated under the due process clause or the equal protection clause of the Fourteenth Amendment. See Zablocki v. Redhail (1978) 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (Stewart, J. concurring); San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (Stewart, J. concurring). Nevertheless, since appellant alleges the statute violates both constitutional provisions, we will consider the contentions together.

It has been a longstanding principle of constitutional law that where a state grants the franchise for the purpose of selecting persons to serve in public office, it may not also deny the franchise to certain persons in an arbitrary or capricious manner. Any classifications limiting the franchise "must be tailored so that the exclusion . . . is necessary to achieve the articulated state goal." Kramer v. Union Free School District (1969) 395 U.S. 621, 632, 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583, 592. See also Wesberry v. Sanders (1964) 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481. However, the mere right to vote where granted by the legislature does not Ipso facto create the right to hold public office. Our Constitution has committed to the General Assembly the right to determine what additional offices shall be created and the manner in which they shall be filled. There is no constitutional or innate right to hold public office. Offices created by the legislature are privileges; aspirants to such offices must strictly comply with the conditions of officeholding. State ex rel. Workman v. Goldthait (1909) 172 Ind. 210, 87 N.E. 133. As the Court stated in Hovey v. State ex rel. Riley (1889) 119 Ind. 386, 391, 21 N.E. 890, 891:

"Offices of the class under immediate mention are not such as every elector may justly claim a right to hold solely on the ground that he is a voter, and all voters are entitled to hold offices, but they are offices which the Legislature may restrict to competent persons by prescribing what shall be the qualifications of those who enter them. It is within the authority of the Legislature, by virtue of its general power, to require that the officers of this class shall be selected from different political parties, or that they shall be persons of peculiar skill and experience."

However, the General Assembly has not been given carte blanche to create statutory restrictions on office-holding. No qualifications may be arbitrary or capricious; rather, they must be reasonable and based upon substantial grounds which are natural and inherent in the subject matter of the enactment. State ex rel. Buttz v. Marion Cir. Ct. (1947) 225 Ind. 7, 72 N.E.2d 225. Where an absolute requirement for holding public office arbitrarily and unfairly precludes bona fide candidates from service without a legitimate purpose to justify the exclusion, the statute will not survive constitutional attack on equal protection grounds. Lubin v. Panish (1974) 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702; Bullock v. Carter (1972) 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92.

In the case at bar, so long as the statutory restrictions on eligibility for holding the office of Township Advisory Board member are not arbitrary but bear a rational relation to the legitimate purpose of the statutory scheme, they will not be deemed violative of the rights to equal protection and due process of law. State ex rel. Miller v. McDonald (1973) 260 Ind. 565, 297 N.E.2d 826, Cert. denied, 414 U.S. 1158, 94 S.Ct. 917, 39 L.Ed.2d 111 (1974); Forks v. City of Warsaw (1971) 257 Ind. 237, 273 N.E.2d 856, Cert. denied, 409 U.S. 841, 93 S.Ct. 39, 34 L.Ed.2d 80 (1972).

The original township advisory board statute was enacted in 1899. Its purpose was to provide greater protection for township taxpayers, who bore the entire burden of supporting schools and township government. Miller v. Jackson Township (1912) 178 Ind. 503, 512, 99 N.E. 102, 106. The act empowers the board to oversee the operations of the township trustee by requiring the trustee to submit for the board's approval an annual budget for the coming year and an annual report of his expenditures for the previous year. IC §§ 17-4-28-1, 3, 5. With but three exceptions, the board has sole authority to recommend to the county council the salaries and benefits to be paid to all elected and appointed officers of the township. IC §§ 17-4-28-1.1, 1.3, 1.5. The board is authorized to levy taxes on the real property in the township to pay for all expenses. IC §§ 17-4-28-1, 2. The board is further vested with the duty to borrow money in the event an emergency exists for the expenditure of any sums not included in the existing estimates and levy. IC § 17-4-29-3. The borrowed funds, as well as interest thereon, will of course eventually be paid by the taxes generated from levies on real property in the township. In the case at bar, 99.28% Of all locally-generated tax revenues emanate from such levies on real property.

The concern of the legislature that township taxpayers be protected by such advisory boards clearly is twofold: that the revenue generated from property taxes be expended in a frugal and efficient manner and that township property tax rates be maintained at a fair and equitable level which will not impose an intolerable burden upon those bearing the weight of the tax. Freeholders are the sole source of this tax revenue. They have a direct stake in the expenditure of local monies and the imposition of local property tax rates. Conversely, those township residents who do not own real property have only an indirect concern over property taxes. While we recognize the proposition in City of Phoenix v. Kolodziejski (1970) 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523, that a renter may effectively pay a share of local property taxes through his rental payments, we think...