State ex rel. Buttz v. Marion Circuit Court

• Decision Date: 09 April 1947
• Docket Number: 28275.
• Citation: 72 N.E.2d 225,225 Ind. 7
• Parties: STATE ex rel. BUTTZ v. MARION CIRCUIT COURT et al.
• Court: Indiana Supreme Court

72 N.E.2d 225

225 Ind. 7

STATE ex rel. BUTTZ v. MARION CIRCUIT COURT et al.

No. 28275.

Supreme Court of Indiana

April 9, 1947

[Copyrighted Material Omitted]

Ward & Ward, of Indianapolis, for relator.

Royse & Travis and Hugh E. Reynolds, both of Indianapolis, for respondents.

STARR, Judge.

This is an original action for a writ of mandate directing the respondents to appoint the relator as the Democratic member of the Board of Registration of Marion County. It appears that under and in pursuance of the Acts of 1945, ch. 208, § 50, § 29-3406, Burns' 1933 Supp., the Democratic County Chairman duly recommended in writing to respondent judge, the relator as a member of the Board of Registration for said county, to serve from January 1, 1947, for a term of two years or until his successor shall have been appointed and qualified. Said respondent judge now refuses to so appoint said relator although he is possessed of all the statutory qualifications for this office.

Respondents first filed a motion to dissolve the temporary writ of prohibition which issued at the time this case was started. This pleading is one not contemplated by the rules of this court. Rule 2-36, 1946 Rev., provides that no pleading other than a response shall be entertained and that this response may show any reason in law or in fact why the writ should not be obeyed. We have decided, however, for this case, we will examine said motion and treat the same as part of the response in this action.

As grounds for this motion it was respondent's contention that this court was without jurisdiction; that the act upon which this cause was founded provides for the appointment of the board of registration by the judge of the circuit court and not by the court itself; that when said judge makes the appointment he is acting not as a court but in an administrative capacity; and as there is no proceeding pending in the Marion Circuit Court involving this matter there is no judicial proceeding to which the relator is a party upon which a writ could be issued by this court.

To justify the refusal said judge sets out in the response that after the recommendation of the county chairman he investigated the relator to determine his qualifications for service on said Board of Registration of Marion County and found that relator 'was a Ward Chairman for the Democratic Party of the 24th Ward in the City of Indianapolis, Indiana; is actively engaged by virtue of such position in the partisan operation of the political party system in the State of Indiana; is a man without substantial educational qualifications and has had little or no executive or administrative experience in business or commercial fields and respondent then determined, in his discretion, that said Buttz was therefore a person who did not possess the high qualifications which respondent feels are necessary for the members of such Board of Registration.' The respondent also alleges that the statute above referred to is unconstitutional to the extent that the same attempts to deprive him as judge of judicial discretion in making this appointment and that the power of appointment once given to him as judge by this statute could not be controlled by some outside person.

That part of the Acts of 1945, ch. 208, § 50, § 29-3406 Burns' 1933 Supp., which is involved in this proceeding reads as follows:

'In and for any county having a population of eighty thousand (80,000) or more as shown by the last preceding United States census the judge of the circuit court in any such county shall appoint the two (2) members of said board of registration, one each from the two (2) political parties which cast the highest and the next highest number of votes for secretary of state in such county at the last preceding general election and who shall be legal voters of such county; such appointments shall be made within ten (10) days after the judge of the circuit court shall have received the respective written recommendations for said appointments from the two (2) county chairmen of the said two (2) political parties the judge of the circuit court shall appoint such nominees. Such written recommendations shall be filed personally with, or forwarded by registered mail to, the said judge of the circuit court in any such county not later than ten (10) days after the taking effect of this act and the members so appointed shall serve until the first day of January, 1947. On the first day of January, 1947, and on the same day of the same month of each odd-numbered year thereafter, the judge of the circuit court in any such county shall appoint such two (2) members of said board of registration upon the written recommendations of the respective county chairmen of said two (2) political parties which shall be filed personally with, or forwarded by registered mail to, the said judge of the circuit court in any such county at least ten (10) days prior to the time provided herein for said appointments to be made, and said members of said board of registration when so appointed and qualified shall serve for two (2) years or until their successors shall have been appointed and qualified. Should any vacancies occur on said board they shall be filled in like manner as original appointments are made;'

The response and the brief filed in support of it call our attention to the fact that this court in the case of Harrell v. Sullivan, 1942, 220 Ind. 108, 40 N.E.2d 115, 41 N.E.2d 354, 140, A.L.R. 455, decided that Chapter 100 of the Acts of 1941, was unconstitutional and void. That act, insofar as the appointment of the board of registration in counties having a population of over 80,000 persons is concerned, is to all intents and purposes the same as the statute here involved. It is the contention of the relator and of the amicus curiae that the case of Harrell v. Sullivan, supra, was wrongly decided and that the statute involved herein is in all things valid.

In the last mentioned case this court decided that the General Assembly may not, as was here attempted, limit and narrow the right of appointment to public office to members of a particular political party and to do so is a violation of Art. 1, § 23 of the state Constitution which reads 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.'

With this statement of the law we cannot agree when the same is applied to the case before us. It is true that this court, in the case of City of Evansville et al. v. State ex rel. Blend et al., 1888, 118 Ind. 426, 435, 21 N.E. 267, 270, 4 L.R.A. 93, in considering the provisions of a statute requiring that officers of police and fire departments of certain cities should be divided between the two leading political parties, 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 employes be selected from the two leading political parties found in those 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 creates a residence qualification, and 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.'

And again in considering this subject in the case of State ex rel. Holt et al. v. Denny, Mayor, et al., 1888, 118 Ind. 449, 479, 21 N.E. 274, 284, 4 L.R.A. 65, this court stated that a law limiting the right to hold police offices in cities to persons belonging to one of the two leading political parties within such city, is invalid 'as it grants to a class of citizens belonging to two leading parties privileges and immunities, viz., the right to hold such police offices, that it does not confer on all citizens.' We do not approve of either of the last two cases above cited as applied to the facts in this case.

The provision in the statute under consideration is merely a direction to select from the two leading political parties, which is a rule for the guidance of the appointing officer, and imposes no act or exaction upon the officer appointed. People ex rel. v. Hoffman et al., 1886, 116 Ill. 587, 5 N.E. 596, 8 N.E. 788, 56 Am.Rep. 793; State ex rel. Jones v. Sargent, 1910, 145 Iowa 298, 124 N.W. 339, 27 L.R.A.,N.S., 719, 139 Am.St.Rep. 439; Commonwealth v. Plaisted, 1889, 148 Mass. 375, 19 N.E. 224, 2 L.R.A. 142, 12 Am.St.Rep. 566. If we were to hold that the statute lays down a political test it will be noted that our state Constitution nowhere prohibits a political test for public office. The only test for office which our Constitution proscribes is a religious test. Constitution of Indiana, Art. 1, § 5.

This court in Strange v. Board, etc., 1910, 173 Ind. 640, 649, 91 N.E. 242, 243, in discussing the words 'privileges or immunities' as used in said Art. 1, § 23 of our state Constitution and in § 1 of the 14th Amendment to the federal Constitution, very appropriately said:

'The courts have not attempted to define the phrase 'privileges or immunities' of either Constitution. They are regarded as general, abstract,...