The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-11-13
LITTLE NOT INELIGIBLE
CITY ATTORNEY KERN BACKS UP
ROMUs STUART'S LEGAL ACUMEN.
Some Doubt Now as to whether DEM
Ocratic Caucus VIII support
This Candidate.

of councilman at large to succeed T. j.
Montgomery on account of his being surety
on street guaranty bonds. His written
opinion, quite a lengthy document was yes
terday handed to John II. Mahoney, presi-
dent of the Council. In an interview in the
Journal of Wednesday Romus F. Stuart set
tied the law to his own satisfaction in a
dozen words.
''Will the members of the Council stand
by Mr.. Little now that Mr. Kern holds he
is not ineligible?'' Mr.. Mahoney was asked.
1.-THE members of the Council are honor
able gentlemen and Democrats. Further
than that L am not at liberty to speak, re-
piled he
1.-THE inference would be that they will
therefore vote for Mr.. Little-being honor
able gentlemen and 'DemocratsY -
II am not drawing inferences."
Mr. Mahoney was unwilling to admit that
the caucus had pledged the Democrats to
vote for Mr.. Little. He is chairman of the
caucus and leader of the new members. He
said that he did not want to discuss caucus
secrets. He admitted, however, that after
the caucus the announcement had been au-
thorized that Mr.. Little had been unani-
mously nominated. 1t remains to see how
wide the breach between the old and new
members of the Council is, and whether
caucus agreements are to be observed. The
election is not to take place until a week
from next Monday. A special meeting has
been called for that date for the purpose of
filling the vacancy. Meantime there will be
another caucus to determine whether Mr..
Little is still to be elected.
Another obstacle was suggested yesterday.
1t was reported that Mr.. Little was not
only surety on bonds guaranteeing public
improvements, but that he was also direct
ly interested in the Rural-street improve
ment, as Contractor Eichman had assigned
the contract to him. Mr. Little said that
there was no truth in the report. He pre-
sumed that it grew out of the fact that
he had brought suit against Mr.. Eichman
for his co-surety on the bond. He did that,
however, in the capacity of an attorney. 1t
was not over the contract at all, but was
in connection with a controversy over
fence at Broad Ripple. Mr.. Littles friends
say that this is simply another effort to
place obstacles in the way of his election.
POINTS OF THE OPINION.
Mr. Kern reached his decision with re-
gard to the Little case two or three dayA
ago, but was unwilling to make it public
until it had been submitted to President
Mahoney. After reviewing the objections
made to Mr.. Little being elected, under
Section of the city charter, which pro-
hibits councilmen or other city employees or
officials from being in any way, directly or
indirectly, interested in public contracts, Mr..
Kern quotes authorities at length showing
that 1.-The right of eligibility to Office be-
longs equally to all persons whomsoever not
excluded by constitutional or legislative
tod
Barker VS.. People, Cowan, 6S6) the court
said:
eligibility to office is not declared as
right or principle by any express terms of
the Constitution, but it results from just
deduction from the express powers and pro-
visions of the system. The basis of the
principle is the absolute liberty of the cleo
tors and the appointing authorities to choose
and to aPR1ntt IT, any any is not
Continuing, Mr.. Kern's opinion says:
THAT decision applied to an office, pro-
vided for by the Constitution. mere legis-
lative office, that is one created by the state
Legislature, is subject to be controlled and
regulated by legislative act, and an act OF
the LEGISLATURE making certain persons in
eligible to fill any legislative office would
Enthusiastically be valid. To disqual1fy any
citizen from holding an office created by
the Legislature, there must be some con-
stitutional or legislative prohibition
A number CT authorities in support OF this
principle are then cited.
Mccarthy vs. Froelke, 63 Ind, 5O7, was
case where Froelke, who while voter of
the township was not citizen of the United
States. had been elected to the office OF
township trustee His election was con-
tested on the ground that, not being a
citizen, he was ineligible to hold ONCE me
Supreme Court, after noting the constitu-
tional requirement that the Governor and
lieutenant governor, senator's and congress-
men, must be citizens of the United States,
and the provision concerning county Officers.
says: If the trainers of the Constitution
had intended to require the same degree of
eligibility for a county office, that they de-
clared necessary for the office of Governor,
lieutenant governor, senator and repreSen-
clared in plain terms. We must mold
that an elector of the county having the
other necessary qualifications, is engloie 10
a county office, although he may not be
citizen of the United States. We can find
no provision, either in the Constitution or
the statutes prescribing the eiglbility nee
we must, therefore, look to other provisions
and their fair interpretations to settle the
question before u.s. Under the Constitution
1t is clear that the contestee was eligible to
any county office, and we think it would be
illogical to hold that a township office,
which is of lesser magnitude, should require
a higher degree of eligibility than county
office
THE CONSTITUTION APPLIED.
"The contestee was awarded the office. 1t
will be observed that in this case when the
question of eligibility was presented to the
Supreme Court, that tribunal at once
turned to the Constitution and statutes, to
ascertain what was there provided as to
the eligibility of persons to hold the office
in question Keeping in mind these general
principles, let us look to the Constitution of
the State to ascertain the provisions of that
instrument applying to the case in hand.
There are three and only three, general
provisions bearing on the question::
In Article 2 it is provided: Section 6.
That every person shall be disqualified Tor
holding Office during the term for which he
may have been elected, who shall have CIV
en- or offered bride, threat or reward to
secure his election. Sec. z. Every person who
duel, or who shall knowingly carry to an
other person such challenge, or who shall
agree to go out of the State to fight duel,
shall be ineligible to any office of trust or
profit. Sec 10. No person who may here
after be collector or holder of public mon
eys shall be eligible to any office of trust
or profit until he shall have accounted for,
etc.
Section of the same article authorizes
the General Assembly to render ineligible
any person convicted of an infamous crime
and the next section prohibits the holding
of more than one lucrative Office by any
person at the same time.
The above are the constitutional prohi-
billions. Let US now turn to the statute
creating the office of councilman at large
and ascertain the qualification for such Of
flee fixed therein. Section IL of the charter
provides that the whole city shall elect six