Sarlls v. State ex rel. Trimble

• Citation: 201 Ind. 88,166 N.E. 270
• Decision Date: 26 April 1929
• Docket Number: No. 25445.,25445.
• Parties: SARLLS, City Clerk, v. STATE ex rel. TRIMBLE et al.
• Court: Supreme Court of Indiana

201 Ind. 88
166 N.E. 270

SARLLS, City Clerk,
v.
STATE ex rel. TRIMBLE et al.

No. 25445.

Supreme Court of Indiana.

April 26, 1929.

Appeal from Vanderburgh Circuit Court; Jas. T. Cutler, Special Judge.

Action in mandate by the State of Indiana, on the relation of G. Arthur Trimble and others, to compel Louis P. Sarlls, as City Clerk of the City of Evansville, to amend a certificate of his inability to determine whether a petition for submission of the question of adopting the city manager plan of government to the voters of such city was signed by a sufficient number of qualified electors within the time allowed by law. Judgment for relators, and defendant appeals. Reversed, with directions.

[166 N.E. 273]

Edwin C. Henning and Dan H. Ortmeyer, both of Evansville, for appellant.

Edmund L. Craig, Funkhouser, Funkhouser & Markel, and Albert J. Veneman, all of Evansville, for appellees.

MARTIN, C. J.

This is an action in mandate to compel the appellant, as city clerk of Evansville, to amend or change a certificate which he made in compliance with section 3, c. 218, Acts 1921; section 10190, Burns' 1926, after a petition had been filed with him on April 11, 1927, asking that the question of adopting the city manager plan of government be submitted to the voters of that city. The clerk certified to the legislative authority of the city that he was unable within five days allowed by law to determine whether the petition was signed by a sufficient number of qualified electors, and this action sought to compel him to amend his certificate to read and show that the petition was signed by a sufficient number of qualified voters and that the same was a sufficient petition.

The complaint, to which a demurrer was filed and overruled, alleged that at the last preceding general municipal election in Evansville, the total number of electors who voted in said election was 31,201, and that the petition was signed by 12,388 persons, who at the time of the signing and filing of the petition were qualified electors of the city; it set forth the certificate of the clerk (hereinafter, in part, set out), and alleged that when the clerk made said report or certificate he well knew and believed that it was signed by a sufficient number of qualified

[166 N.E. 274]

electors, that his certificate did not speak the truth and that it should be amended as above noted.

The section of the statute above referred to is as follows: “All petition papers requesting any such election shall be assembled and filed with the city clerk as one instrument, and the petition shall be deemed sufficient if signed by electors of the city equal in number to at least twenty per cent. of those who voted at the last preceding general municipal election. Within five days after any such petition is filed the clerk shall complete an examination thereof to determine whether it is signed by a sufficient number of qualified electors and he shall certify the result of his examination to the legislative authority of the city at its first regular meeting held after the completion of such examination.”

Among the errors relied upon for reversal is the overruling of appellant's motion for a new trial, for the reason that the decision of the court is not sustained by sufficient evidence. The evidence consisted of an agreed statement of facts, which showed the filing of the petition, which was in the form prescribed by statute (“We, the undersigned, voters of the city of Evansville, Indiana, respectfully petition that the following question be submitted to the voters of said city: ‘Shall the City of Evansville adopt the City Manager plan of Government as provided in the Laws of 1921, chapter 218?”’), the certificate or return of the clerk above referred to, a statement that the records of the last general municipal election had been destroyed, except the certificate of the canvassing board showing the total number of votes cast for each candidate, and that there were 31,161 votes cast for mayor, 31,201 for city clerk, 31,185 for city judge, 31,223 for ward councilman, and that the aggregate vote for the four Republican candidates for councilmen at large was 72,124, and for the four Democratic candidates for councilmen at large was 50,718 and that an aggregate of 56,546 persons were registered to vote at said municicipal election. The certificate or return of the clerk was in part as follows:

“In the discharge of the duties placed upon me by section three of the act I have made as careful and painstaking an examination of said petition as the time and facilities available to me, permitted in order to determine whether it is signed by a sufficient number of qualified electors of the city equal in number to at least twenty per cent. of those who voted at the last preceding general municipal election. I have completed an examination of 2,074 names signed to said petition and have found that 1,312 of such names appear on the registration books of the last preceding general municipal election. I have been unable to complete an examination of the remaining names signed to said petition. I have been unable to complete an examination of said petition to determine whether it is signed by a sufficient number of qualified electors and I have been unable to determine whether said petition is signed by a sufficient number of qualified electors and I have been unable to determine whether said petition is signed by electors of the city equal in number to at least twenty per cent. of those who voted at the last preceding general municipal election and I have been unable to determine the number of electors of the city who voted at the last preceding general municipal election.”

[1] The statute, in requiring the clerk to determine within five days whether the petition is signed by a sufficient number of qualified electors equal to 20 per cent. of those who voted at the last city election, imposes a task upon city clerks that may be very difficult to accomplish within the time allowed therefor, especially in a city the size of Evansville. There is no allegation of fact in the complaint to sustain the conclusion pleaded therein that the clerk well knew and believed that the petition was signed by a sufficient number of qualified electors, and no attempt was made at the trial to prove that the 13,388 persons who signed the petition (or such number of them as exceeded 20 per cent. of the votes of the last city election) were qualified electors as alleged in the complaint, other than the declaration contained in the text of the petition quoted above, except that it was agreed that the three relators were residents and legal voters of Evansville.

The appellee, to sustain the finding and judgment, contends that the petition “is prima facie evidence that the signors were electors,” and that “by examining the petition the clerk could ascertain the number of persons who said therein that they were voters of the city of Evansville.” But we cannot read into this statute something that is not there. Unless the statute so provides we cannot hold that the signatures were prima facie evidence that the signers were electors. The requirement of the statute is that the clerk determine whether it is signed by a sufficient number of qualified electors, not that he determine whether it is signed by the proper number of persons who state therein that they are voters. It follows that the decision was not sustained by sufficient evidence.

In this connection it may be well to note that section 3 (chapter 218, Acts 1921) above quoted, since the trial of this cause, has been amended by section 3, chapter 60, Acts 1929, which enacts into the law the provisions which appellee would have us read into the original section of the law by judicial construction, but which we cannot do.

Constitutional question will be decided.

[2][3][4] The appellant, under his assignment of error that the court erred in overruling his

[166 N.E. 275]

demurrer to the complaint, contends that the law providing for the commission and the city manager forms of government in cities (chapter 218, Acts 1921; sections 10188—10256, Burns' 1926), is in conflict with the Constitution and invalid for numerous alleged reasons. It is doubted if this appellant, as an administrative officer, and in this sort of an action, can insist that the court decide such questions, since a party cannot question the constitutionality of a statutory provision unless he shows that some right of his own is thereby impaired or prejudiced (Tomlinson v. Bainaka et al. [1904] 163 Ind. 112, 119, 70 N. E. 115;State v. Gerhardt [1896] 145 Ind. 439, 450, 44 N. E. 469, 33 L. R. A. 313; Currier et al. v. Elliott [1895] 141 Ind. 394, 407, 38 N. E. 556); and for an administrative officer “merely to perceive that some one might attack the law on constitutional grounds” is not sufficient cause for him to refuse to perform a duty enjoined by the law and which it is sought to enforce by mandate (State ex rel. v. Bowman, Auditor [1927] 199 Ind. 436, 467, 156 N. E. 394, 157 N. E. 723). None of appellant's constitutional objections are directed to the section of the act (section 3) directly involved herein, and even if other portions of the act were unconstitutional, their invalidity would not invalidate the entire act if their elimination leaves a complete statute that can be enforced. ¹State ex rel. Law v. Blend (1890) 121 Ind. 514, 521, 23 N. E. 511, 16 Am. St. Rep. 411;State ex rel. Collett v. Gorby (1890) 122 Ind. 17, 29, 23 N. E. 678;Swartz v. Board (1902) 158 Ind. 141, 151—152, 63 N. E. 31.

[5] The constitutionality of a statute will not be determined unless it is necessary to do so in order to determine the merits of the suit in which such constitutionality has been drawn in question.²State ex rel. v. Wheaton et al. (1923) 193 Ind. 30, 138 N. E. 820;Higgins et al. v. Swygman et al. (1923) 194 Ind. 1, 141 N. E. 788;Hewitt v. State (1908) 171 Ind. 283, 86 N. E. 63. It is true that this case can be...