The opinion
On Petition for Rehearing.
Hackney, O. J.
The appellant’s petition, as addressed to the minority opinion, rests, we respectfully submit, upon false premises, i. e., that the validity of the law of 1893 was not in issue; that the appellees were estopped to assert its invalidity, and that the case of State, ex rel., v. Wells, 144 Ind. 231 , holds the act of 1893 to be constitutional.' As in Denney v. State, ex rel., 144 Ind. 503 , the petition sought the relief prayed upon the earlier act, and denied the validity of the later act. The respondents properly, we have no doubt, contended that the entire relief prayed could not be granted, because of the invalidity of the earlier act. It waá there held that both acts were in question, the relief demanded affirming one act and denying the other.’ It would be remarkable if one seeking relief under a law could preclude his adversary from denying the constitutional validity of that law. It would be no less remarkable to hold that the question must be specially pleaded, and could not arise upon demurrer. In considering the question of estoppel *292 again argued, it must be borne in mind that the person to be estopped, according to the appellant, is not in court. He is the trustee in office, who, in this case, is not a party denying or affirming the right of the appellant to require an election this fall. The issue in this case, as we affirmed originally, is not as to the right of a trustee; it is as to the right of the people to elect a trustee. It was the loss of this distinction by the majority of the court, as the minority conceived, that made the hold-over clause appear to have application to the case.
In the case of State, ex rel., v. Wells, supra, the constitutional validity of the act of 1893 was neither mooted nor decided, and, as well said by appellant’s counsel, constitutional questions are never passed upon unless necessary to a decision of the case. The constitutionality of laws is assumed where not denied. The minority adhere to their original opinion.
Howard, J., concurs in this opinion.