Board of Election Commissioners, etc. v. Knight—187 Ind. 108. report. The discussions of the same resolution at the session of 1879 are preserved, to some extent, in the brevier report of that session, and a reading of this report discloses no discussion whatever of a proposition to provide how and by whom town and city officers should be elected. Had such a radical change been intended, had the people realized that by the amendment of 1881, by the use therein of the word "ward," they were removing from themselves one step farther, a right they had preserved to their direct representatives in the assembly, discussion and strong opposition would have developed. Had the people determined that it were better that the qualifications of electors at town and city elections be fixed, and not readily changed, they would not have left the matter to a mere inference from the word "ward," but would have used language fully and clearly expressing the idea that the amendment should apply to town and city elections, and would have expressly withdrawn town and city elections from the class otherwise provided for. The legislature at several sessions, after the amendment of 1881, asserted its right to prescribe who should vote at town and city elections. The act of 1905 recognizes qualifications prescribed by the general assembly in addition to those prescribed in the Constitution. It reads: "In all municipal elections, no other qualifications shall be required of any voter than such as are made necessary in general elections, under the Constitution, and laws of the state." (Acts 1905, §230, p. 383, §8884 Burns 1914.) If the amendment of 1881 covered the matter into the Constitution, why should the legislature further treat of the subject? Evidently the assembly, in its sessions of 1877 and 1879, did not intend that the amendment it then proposed should destroy its power to later say who should vote at town and city elections; at least it has denied such intent by its later acts Board of Election Commissioners, etc. v. Knight-187 Ind. 108. naming such electors. The ambiguity and need for construction of the Constitution, in this case suggested, continued until 1881. The amendment then made has, judging by the good-faith differences of opinion in this case, not removed, but has intensified the ambiguity. The general assembly has continued since 1881 to assert who shall vote at town and city elections, and a statute to that effect was in force at the time of the adoption of the act in question. Thus we have a long-continued, practical exposition of the meaning of the Constitution and of its amendment. This exposition has been so uniform, and is so persistent, that it removes all ambiguity, and establishes, or demonstrates, the existence of a principle, and that principle, local self-government, underlies the whole of this cause. Consistent with that principle, the general assembly has deemed it best that women shall vote at local elections. "If we find a principle established by long-continued practice, we must yield to it, unless we are satisfied that it is repugnant to the plain words of the Constitution." Hovey, Governor, v. State, ex rel., supra; French v. State, ex rel. (1895), 141 Ind. 618, 41 N. E. 2, 29 L. R. A. 113. The prevailing opinion, and the concurring opinion, draw from the use of the word "ward," and other facts stated, one inference. I draw from the word "ward" and substantially the same facts an entirely different inference; and I submit that the latter is at least as well founded and reasonable as the former. The rule, under such circumstances, is that the inference which will sustain the law shall be indulged. Further, if doubt existed in my mind as to which inference should be drawn, that doubt should be resolved in favor of the validity of the law, if this can be reasonably done. "The power to declare a statute unconstitutional is one of the highest intrusted to a judicial tribunal, and is only to be exercised with the greatest care, and only Board of Election Commissioners, etc. v. Knight—187 Ind. 108. when there is no doubt of the unconstitutionality of the law. If there is any doubt in the mind of the court as to the constitutionality of a law, it must be resolved in favor of its validity." City of Indianapolis v. Navin (1898), 151 Ind. 139, 145, 47 N. E. 525, 51 N. E. 80, 41 L. R. A. 337, and citations therein. It is argued by those opposed to the law that the qualifications fixed in the Constitution not only include all who shall vote at any and all elections but exclude all others as voters. This argument is of little force when we find in the same section an exception stating in effect that the qualifications do not apply to elections "otherwise provided for," and find elsewhere in the Constitution that the election here involved is otherwise provided for. It is argued by those favoring the law that the Constitution only guarantees that males, twenty-one years of age, who have resided in the designated territory for a named period, may vote. In other words, that this guaranteed right shall not by legislation be taken from them; but that the provision is not meant to be exclusive of all others as voters; and, hence, the general assembly may provide that others may vote. This argument would be pertinent had the general assembly attempted to change the qualifications of voters for Governor or secretary of state, or any office created by the Constitution, as the Constitution does not say that these officers are in the class otherwise provided for, but does provide expressly who shall vote for these officers. The debate then would be: What power has the legislature over qualifications fixed by the Constitution? For the reasons stated, my opinion is not in the slightest conflict with the decision in Gougar v. Timberlake (1896), 148 Ind. 38, 46 N. E. 339, 37 L. R. A. 644, 62 Am. St. 487, as in that case Mrs. Gougar demanded a right to vote for officers the choice of whom was, by the Consti Board of Election Commissioners, etc. v. Knight-187 Ind. 108. tution, committed to voters whose qualifications were fixed in the Constitution; and if it were conceded that the general assembly had power to permit others to vote at such elections, the assembly had not made any such provision. This opinion is also in entire accord with the general principles and rules of government announced in Ellingham v. Dye (1912), 178 Ind. 336, 99 N. E. 1, 99 N. E. 29, 231 U. S. 205, 58 L. Ed. 206, Ann. Cas. 1915C 200; and in Bennett v. Jackson (1917), 186 Ind. 533, 116 N. E. 921. I agree with my associates that the assembly has power to provide that women may vote at school elections. In fact, the assembly has in several acts so provided. I do not agree, however, that the provision to that effect in the act of 1917 is so interwoven with the city election provision that it must fail with the latter. In my opinion the act of 1917 is severable as to each class of officers named therein, as if the provision for each class had been made by a separate act. If, therefore, the act is invalid as to any one class, such invalidity does not destroy the act as to other classes. In my opinion, the judgment appealed from should have been reversed. NOTE. Reported in 117 N. E. 565, 650. Validity of a statute giving women the right to vote, Ann. Cas. 1915A 802. Wittenbraker, Admr., v. Dremstett-187 Ind. 154. WITTENBRAKER, ADMINISTRATOR, v. DREMSTETT. [No. 23,264. Filed February 19, 1918.] 1. GIFTS. Evidence.-Admissibility.-In an action by an administrator against the decedent's son to recover property claimed by the defendant son as a gift from deceased, the deceased's will, which contained an item devising all the residue of the estate to the defendant, was admissible in connection with other evidence to show the feeling existing between the father and son and the mental attitude of the father in regard to the disposition of his property. p. 156. 2. GIFTS.-Evidence.—Admissibility.-In an action by an administrator against the decedent's son to recover money claimed by the defendant son as a gift from deceased, a written agreement by the heirs, including defendant, to set aside the will was not admissible, since the defendant claimed the property by gift inter vivos and not on any right or title by distribution under the will. p. 157. 3. TRIAL. Evidence.-Reception.-Request for Instruction.-In an administrator's action for recovery of personal property claimed by the decedent's son, where a will was admissible in evidence by the defendant for a certain purpose, if the plaintiff apprehended that the jury was likely to misapply it as evidence, it was his duty to request an instruction limiting its scope. p. 158. From the Gibson Circuit Court; Simon L. Vandeveer, Judge. Action by Charles W. Wittenbraker, administrator de bonis non with the will annexed of the estate of Christopher Dremstett, deceased, against Fred Dremstett. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590). Affirmed. Lewis O. Rasch, James T. Cutter and Funkhouser, Funkhouser & Markel, for appellant. Brill, Hatfield & Brady, James F. Ensle and Charles G. Covert, for appellee. |