Keane v. Remy

168 N.E. 10, 201 Ind. 286, 1929 Ind. LEXIS 40

• Court: Indiana Supreme Court
• Decided: September 24, 1929
• Docket: No. 25,788 and 25,789.
• Status: Published

Opinions

Travis, J.

These are suits in equity to enjoin the defendants in case No. 25,788, 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, ch. 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 November 5,1929, for the purpose of electing city commissioners under the city-manager form of government. Appellees, in cause No. 25,788, 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. 25,789, appellant sought to enjoin appellees from proceeding under the City Manager Law (Acts 1921, ch. 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 appellees 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 per-, form their duty as election commissioners under and by virtue of the act concerning municipal corporations approved March 6, 1905, 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 in 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 which 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, ch. 218, p. 594) 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 §3 of the act.

Before the special election to determine whether the city government should be changed may be ordered by the legislative authority of the city, as provided by §4 of the act, the clerk of the city must have certified to such legislative authority that a sufficient petition as required by §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 §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 §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 §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 §4 of the act.

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 (Art. 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 six months; (4) and in the township 60 days; and (5) 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 §3 of the act which provides who are qualified to sign such petition. By the wording of §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. 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 five 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 two and sixty-three hundredths 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 five 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.

The act of determining whether a petitioner is a qualified elector or not, and deciding upon such determination whether or not he should he 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 §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, etc., 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 §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 a commissioner. 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.

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 sufficient means whereby it may be enforced, the act or the section of the act which fails in that particular should be declared judicially invalid and void. A legislative act is stillborn, without life, though it be attended at its inception with all the official function necessary to give it life, unless it contains within it a delegation and grant of power by which it may be carried into effect. And if such is not so given by the legislative will, the act is nugatory, it is merely a dead letter. And it is a judicial function to so declare it, if it is sought in any manner to affect the citizens by it through illegal means. State v. Gerhardt (1896), 145 Ind. 439, 452, 44 N. E. 469; Overseers of Poor, etc., v. Overseers of Poor, etc. (1878), 87 Pa. 294; State, ex rel., v. Reusswig (1910), 110 Minn. 473, 126 N. W. 279. It is held that §3 is unworkable, impossible of performance, and that, therefore, §3 is invalid, void and of no force and effect.

The act in question shows upon its face that it was intended for universal application to each city within the state. It is not applicable to the city of Indianapolis in the case at bar by virtue of the unworkability, impossibility of execution and lack of force and effect of §3 of the act, whereby it is shown that the law is not adapted to universal application to every city within the state. It is not determined now but that the law is applicable to some cities in the state under certain conditions. If the act is inapplicable to one city in the state, the act is not a general law capable of universal application. The judicial determination here is a result of the consideration of the subject-matter of the act and its application; it is not determined by the form of words of the act. It required a concrete case to determine whether this act could be of universal application. This question is for judicial determination. State v. Martin (1923), 193 Ind. 120, 128, 139 N. E. 282, 26 A. L. R. 1386; Bullock v. Robinson (1911), 176 Ind. 198, 204, 93 N. E. 998; Bumb v. City of Evansville (1907), 168 Ind. 272, 275, 80 N. E. 625. The court respectfully submits to the power of the General Assembly, and it determines whether a law can be made universally applicable to the objects of its subject-matter within the state. This determination by the General Assembly is not openly declared in the act itself, but it nevertheless appears from its title, and generally from its face, that the act was intended to be of universal application; and not being so, it is for the court to adjudge whether it may be put to the full use intended by the act. It is therefore held that §3 of the act violates §23 of Art. 4 of the Constitution, and is therefore void.

Many other propositions are presented by appellants in their brief which question the validity of many other sections of this act. If §3 be cut from the act because it is void, can the rest of the act-—the body of it—survive and function? The inception of the new life of the city-manager or commission form of government under the act, is a petition by which to invoke the popular will, to determine whether or no either of the alternative forms of government provided by the act shall be brought into life.

Where only a part of a legislative act violates the Constitution and is judicially declared void, and the remainder of the act is complete in itself and capable of execution according to the legislative intent and wholly independent of that which is judicially determined to be unconstitutional, the remaining part of the act will be sustained.

State v. Barrett (1909), 172 Ind. 169, 87 N. E. 7. And the reverse is equally the law, that where part of an act has been judicially determined to violate the Constitution, and the remainder of the act is not complete and not possible of performance, the whole act is void and invalid. Kelso v. Cook (1916), 184 Ind. 173, 181, 110 N. E. 987, Ann. Cas. 1918E 68.

It is, therefore, held that the remainder of the act, after excluding §3, is incomplete and impossible of performance, and is connected with §3 in such a manner that the whole act is invalid and void, and declared to be impossible of performance, and that it is. in violation of §23 of Art. 4 of the Constitution.

The act of 1921, approved March 10, 1921, supra, being held void as a whole, the action of the Legislature in 1929 (Acts 1929, ch. 60, p. 157) is without force and such amendment cannot make valid an act which was invalid because it was in violation of the Constitution. It follows, therefore, that the act of the Legislature (Acts 1929, ch. 60, p. 157) which sought to amend the act of 1921 (Acts 1921, ch. 218, p. 594) is invalid and is also unconstitutional.

It is asserted that an election was held June 21, 1927, to determine whether or not the city of Indianapolis should adopt the city-manager form of government, as provided in the act of 1921, supra. Upon that proposition, appellees base their contention that any objections to the validity of the law have been waived for the reason that no objection was made by any citizen to that election. Appellees’ contention cannot obtain. The election which was held June 21, 1927, as asserted in the brief, was merely an election for the purpose of determining whether or not the electorate of the city desired to adopt such a form of government. In that expression of the people, no question of the validity of the act of 1921, supra, was necessarily involved. That question would naturally arise when steps were taken which involved the expenditure of a large amount of money by the city, as in the case at bar, where it is here alleged to be not less than $75,000 when it was sought to put into action the machinery by which the law would be carried into effect. Such is the case that now confronts the court. The basis or law to sustain the proposed new form of government is here attacked by a taxpayer who has the right to test the validity of the law at any time prior to the functioning of the city under the proposed change of government.

In cause No. 25,788, the trial court committed reversible error in overruling appellees’ demurrer to the complaint.. In cause No. 25,789, the court committed reversible error in refusing to grant the interlocutory temporary injunction and in refusing to grant the interlocutory temporary mandatory injunction. ' In cause No. 25,788, the trial court is ordered to overrule appellees’ demurrer to appellant’s complaint.

It is further ordered that because of the exigency of the situation on account of the short period of time before the next general municipal election is to be held ad-cording to law, this opinion and the mandate thereof are ordered to be certified to the court below immediately upon the filing hereof, notwithstanding time permitted for the filing of petitions for rehearing in the two respective causes of action.

Judgment reversed in case of Keane v. Remy, No. 25.788.

Judgment reversed in case of Keane v. Holmes, No. 25.789.

Gemmill, C. J., dissents. Martin, J., dissents with opinion.