Beal v. Ray

• Decision Date: 05 February 1861
• Citation: 17 Ind. 554
• Parties: Beal v. Ray and Another
• Court: Indiana Supreme Court

17 Ind. 554

Beal v. Ray and Another

Supreme Court of Indiana

February 5, 1861

APPEAL from the Marion Circuit Court.

The judgment is reversed, with costs. Cause remanded.

J. L Ketcham, J. E. McDonald, R. L. Walpole and J. Caven, for the appellants.

J Morrison, J. D. Howland, H. C. Newcomb and T. A. Hendricks for the appellee.

OPINION

Perkins, J.

Complaint for an injunction. Injunction granted. The facts of the case we assume to be these: On September 28, 1861, the Hon. John Coburn vacated the office of judge of the Court of Common Pleas for the 12th District of the State of Indiana, said district being composed of the counties of Marion, Hendricks and Boone. On September 30, 1861, the vacation of said office by Judge Coburn became constructively known to the public, through the appointment, by the Executive of the State, of his successor, Charles A. Ray, Esq., and the entering, by said appointee, upon the duties of the office. On Tuesday, October 8, 1861, the general annual election for the State of Indiana took place; and, at said election votes were cast for Charles A. Ray and John A. Beal, as candidates for the office of judge of the Court of Common Pleas in and for said district, as follows, viz., for Charles A. Ray 3,799 votes, and for John A. Beal 4,189, making, in all of the votes cast, 7,988. The number of votes cast in Marion, one of the counties of said district, at the presidential election of 1860, was 9,056; so that, for aught that appears, the votes cast at this judicial election, may have been confined to Marion county. Were such the fact, the election, under the circumstances in the case at bar, according to Marshall v. Kerns, 2 Swan's (Tenn.) Rep. 70, would have been void for that reason. After the result of the election of October 8 was known, Mr. Ray, being the incumbent of the judgeship in question, by appointment, and holding the election of October 8, 1861, void, commenced a suit in the Marion Circuit Court against Gov. Morton and Mr. Beal, to enjoin the former from commissioning the latter, and the latter from acting, as judge. The Circuit Court granted a perpetual injunction.

Two questions are presented to this Court.

1. Was the judicial election involved in this case legal?

2. Has the proper remedy been adopted, supposing the election to have been illegal?

The Constitution of Indiana ordains, that all general elections shall be held on the second Tuesday in October; Art. 2, § 14; but it does not require that vacancies in office shall be filled at such elections.

Whether any, and if any, what vacancies shall be filled at such elections, depends upon statute. This fact puts out of the case, as an authority, that of The People v. Cowles, 3 Kernan, (N. Y.) 350.

Our statute, with its title, upon the subject is as follows:

"AN ACT regulating General Elections, and prescribing the duties of officers in relation thereto. [Approved June 7, 1852.]

"Section I. Be it enacted by the General Assembly of the State of Indiana, A general election shall be held annually on the second Tuesday in October, at which all existing vacancies in office, and all offices, the terms of which will expire before the next general election thereafter shall be filled unless otherwise provided by law: Provided, the first election for members in Congress shall take place at the general election in October, 1852, and every second year thereafter.

"Sec. II. The clerk of the Circuit Court shall, at least twenty days before such election, certify to the sheriff of his county, what officers are to be elected; and such sheriff shall give fifteen days' notice thereof, by posting up at all usual places of holding such elections, a copy of such certificate and by publication thereof in some newspaper of his county if any there be, and by delivering a copy thereof to the clerk of each township within the county, if there be any in such township, who shall notify the trustees of such township thereof." 1 R. S., chap. 31, Statutes, by Gavin & Hord, vol. 1, p. 306.

The question then, whether the judicial election held on October 8, last, was authorized by law or not, depends upon the meaning of the above copied statute.

The first section, taken by itself, authorized the election; but the first section was not all of the statute. There were subsequent sections which, in ascertaining the meaning of the statute, were to be considered and reconciled with the first; or, if that could not be done, to be allowed to modify or repeal it, so far as repugnant.

The first section authorized, generally, vacancies to be filled but the second, and a later section, required that before "such elections," as authorized in first section, shall take place, the clerk should certify, &c., twenty days, and the sheriff should notify fifteen days, &c. Now, this section is just as obligatory, just as much law, as the first section; and so limits the first as to preclude elections under it to fill vacancies where the vacancies do not occur long enough before the day of election to enable the steps...