Keane v. Remy , 201 Ind. 286 ( 1929 )

DISSENTING OPINION. The contention of the appellants upon which the court has reversed these cases is that it was impossible for the city clerk of the city of Indianapolis to examine the petitions for an election to adopt the city-manager form of government and determine within five days whether they were signed by at least 20 per cent of the voters of such city, that by reason thereof the said election held in 1927 was void and was not effective to put the city-manager form of government into operation in the city of Indianapolis.

It is averred that there were over 95,000 votes cast at the last city election (and we know that 20 per cent of that number would be over 19,000), and "that the court must know that such examination . . . would be impossible, and that because of such impossible requirement the court must take judicial notice that any certification made by such clerk would be the result of guess work and imagination rather than a conscientious and discriminating examination of such petition."

The appellants do not allege in their complaints that the petition for the election was not signed by the proper number of qualified voters. They do not allege any facts which show that the performance by the city clerk of Indianapolis of the duty imposed upon him by Acts 1921, ch. 218, § 3, § 10190 Burns 1926, was impossible, nor do they allege that the clerk did not perform his duty as prescribed by that section. On the contrary, the averments of the complaints that an election was thereafter held by the voters of Indianapolis on the question of whether the city-manager plan of government should be adopted supports the presumption that he did perform his duty either personally or with the aid of deputies.

No one can or does contend that it would be physically possible for one man to examine a petition the size of the one referred to here in five days. The clerk in performing the duty placed upon him by § 3 would properly do it by employing a clerical force for such purpose. State, ex rel., v. Dunn (1925), 118 Kans. 184, 235 P. 132. In performing such duty he acts as a ministerial, administrative officer; he is vested with power to examine the petitions presented and determine their sufficiency and a discretion, subject to review by the courts, to accept and file such as are sufficient and to refuse to accept or file such as are legally insufficient. State, ex rel., v. Roach (1910), 230 Mo. 408, 130 S.W. 689, 139 Am. St. 639.

The duties of the city clerk of Indianapolis under § 3, were not only possible of performance, but they were performed, and no action in a court to review the correctness of their performance has set such performance aside. (Further we judicially know that such duties have been performed elsewhere and that the law has for several years been in operation in Michigan City, Indiana.)

The proper time to have questioned in the courts the clerk's determination of the sufficiency of the petition for the election to adopt the city-manager form of government was before that election was held two years ago. The action of the clerk under § 3 was merely preliminary to the election held June 21, 1927, at which the city-manager form of government was adopted. The present attack on the validity of that election, brought two years after the election was held, is improper both because it is collateral and because it is brought too late.

Where the officer with whom a petition for a special election is filed has authority to determine its sufficiency and validity, his decision thereon is final, unless such decision has been fraudulent, or corruptly made or procured, or unless he has been guilty of an abuse of discretion. State, ex rel., v. Graves (1914), 90 Ohio St. 311, 107 N.E. 1018. Certainly the conclusion of the clerk as to whether the petition was sufficient is final after the election has been held, since it must be assumed that the clerk did his duty. A strong inducing reason to this conclusion is that it is the vote of the electors at the election, and not the signatures to the petition, that determines the effect of the election. State, ex rel., v. Langlie (1896), 5 N.D. 594, 67 N.W. 958, 32 L.R.A. 723. (In 9 R.C.L. 997, where this rule is stated as being supported by excellent authority, two cases are noted where the validity of petitions was raised even after the elections were held, but in those cases, unlike the case at bar, there were direct attacks upon the sufficiency of the petitions.)

If we concede, for the purpose of argument only, that the clerk did not properly perform his duty, even then, under the well-settled rules of law, the appellant cannot now attack his action. Before an election the rules and regulations for the conduct thereof may be regarded as mandatory and their observance may be insisted upon and enforced. After an election, however, they must be regarded in a different light. The problem is to secure a free, untrammeled vote and a correct record and return thereof. To hold all such rules mandatory would be to subordinate the substance to the form, the end to the means. A departure from the statute, which does not deprive legal voters of their right to vote or permit illegal voters to participate in the election, or cast uncertainty on the result, does not affect the validity of the election. Furthermore if a statute simply provides that certain things shall be done within a particular time or in a particular manner and does not declare that their performance shall be essential to the validity of the election, it will be regarded as mandatory only where they affect the merits of the election and as merely directory if they do not affect its merits. 9 R.C.L. 1091, § 101; 20 C.J. 181.

In Sarlls, City Clerk, v. State, ex rel. (1929), ante 88,166 N.E. 270, it was noted that Acts 1921, ch. 218, § 3, in requiring the clerk to determine whether the petition was signed by a sufficient number of qualified electors equal to 20 per cent of those who voted at the last city election, imposed a task upon city clerks that might be very difficult to accomplish within the time allowed therefor, especially in a large city and we held that under said § 3, the petition was not prima facie evidence that the signers were electors, as it is now since the amendment of said section by Acts 1929, ch. 60, § 1. It is evident that the Legislature at its 1929 session was of the opinion that § 3 (1921) was not a perfect piece of legislation. That section required of city clerks a difficult duty and the result may have been that not every election petitioned for in every city of the state could be held, but merely because of this fact it does not follow that said § 3 is invalid or violative of any provision of the Constitution.

Difficulty of enforcement is not a valid argument for unconstitutionality, Board of Purification of Waters v. Townof East Providence (1926), 47 R.I. 431, 133 A. 812, and the fact that a statute is difficult of application and that the administration of a definite rule does not always lead to uniform results has never been regarded as a reason for holding a statute unconstitutional. The statute prescribes the rule of conduct; the administrative officials decide as a matter of fact whether a given case comes within the rule and they may commit error and differ in their conclusions. People, ex rel., v. Goldfogle (1926), 242 N.Y. 277, 151 N.E. 452.

The prevailing opinion holds, following its decision regarding § 3 (which I believe to be erroneous), that because the clerk of the city of Indianapolis could not personally determine the validity of the petition within five days that the law "is not adapted to universal application to every city within the state" and is therefore in conflict with § 23, Art. 4, Constitution, which requires that all laws shall be general and of uniform operation throughout the state. The Constitution does not require that the operation of a law shall be uniform, other than that its operation shall be the same in all parts of the state under the same circumstances. Bumb v. City of Evansville (1907),168 Ind. 272, 80 N.E. 625. All cities of the state are free to avail themselves of the provisions of this law and it operates throughout the state in a like manner under the same circumstances and conditions. I believe that the law is applicable to Indianapolis, but universal applicability is not the test of constitutionality. The uniform operation required by the Constitution does not mean universal operation, for a general law may be constitutional and yet operate in fact only upon a limited number of persons or things or within a limited territory. Northern Pac. R. Co. v. Barnes (1892), 2 N.D. 310, 341, 51 N.W. 386; 36 Cyc 992. A statute should be given effect as far as possible, and the fact that it may not be possible to give it effect in one class of cases is no reason for not giving it effect in other cases where it is possible. Hodge v. McCall (1921), 185 Cal. 330, 197 P. 86.

In declaring that Acts 1929, ch. 60, is invalid and unconstitutional it would seem that the court has overruled the case of Walsh, Treas., v. State, ex rel. (1895),142 Ind. 357, 41 N.E. 65, 33 L.R.A. 392, where it is said that such an act amending an invalid act (assuming the 1921 act to be invalid) is a valid exercise of power upon the part of the Legislature, which removes the objectionable features of the statute, supplies provisions which makes the law conform to the requirements of the constitution and cures its constitutional invalidity.

Gemmill, C.J., concurs.