Bechtel v. Albin
| Decision Date | 04 April 1893 |
| Citation | 134 Ind. 193,33 N.E. 967 |
| Parties | BECHTEL v. ALBIN. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Elkhart county; J. M. Van Fleet, Judge.
Proceedings by John W. Albin against Jeremiah Bechtel to declare plaintiff duly elected and defendant not elected to the office of county commissioner of Elkhart county. There was judgment in favor of plaintiff, and defendant appeals. Reversed.
C. W. Miller and H. D. Wilson, for appellant. Anthony Deahl and Osborne & Zook, for appellee.
The appellee, John W. Albin, prosecuted his proceeding to contest the election to the office of county commissioner for the south district of Elkhart county of the appellant, Jeremiah Bechtel, by filing with the auditor of said county a written statement specifying the grounds of contest, and verified by the oath of the appellee. The statement of contest set forth the candidacy of the appellee, the appellant, and one John V. Crabb for said office from opposing parties; that the several candidates were eligible, and that of the votes received and counted in said election, being the general November election of 1890, said Bechtel received 4,109, said Albin received 4,092, and said Crabb received 322. But it is further stated that there were 48 legal votes cast for said Albin, in the various precincts named, which the several election boards in said precincts wrongfully refused to count in his favor, and that, if said 48 votes had been counted in his behalf, he would have been given a plurality of all the votes cast, and over the votes cast for said Bechtel of 31. The precincts and the number of ballots excluded in each are set forth in detail, and it is stated that the ballots so rejected and omitted from the votes cast for the appellee were each and all protested, preserved, and returned as required by law. After notices and the assembling of the board of county commissioners to hear the contest, the contestee demurred to the statement, which demurrer was sustained, and thereupon the appellee appealed to the Elkhart circuit court, where the contest was heard by the court, and a special finding of facts and conclusions of law were stated in favor of the appellee. The appellant excepted to the conclusions of law, moved for a new trial, excepted to an adverse judgment, and appeals to this court for review. There are five assignments of error: (1) Overuling appellant's motion to dismiss for the want of jurisdiction; (2) overruling motion to make the complaint more specific; (3) overruling motion to strike out parts of the complaint; (4) overruling the demurrer to the complaint; (5) error in each conclusion of law upon the special facts found. The discussion includes questions upon the exclusion of certain offered oral evidence and the admission of the certificate of the board of canvassers as to the number of votes undisputed which were counted for the contestant. The motion for a new trial did not assign as causes therefor the action of the court in admitting or in rejecting the evidence complained of, nor is the overruling of the motion for a new trial assigned as error. The second and third assignments of error are not discussed. Therefore the questions for consideration by this court are: First, the existence or nonexistence of jurisdiction in the commissioners' court and circuit court to entertain proceedings in contest of an election to a county office, as that question is presented upon the first and fourth assignments of error; and, second, the correctness of the court's conclusions of law upon the facts specially found. We will dispose of these questions in the order stated.
Prior to March 6, 1889, the date of the act known as the “Australian Election Law,” it was provided by article 5, c. 56, Rev. St. 1881, §§ 4743-4768, inclusive, for the contest of elections. Section 4758 is as follows: “All contests for county and township offices shall be tried in the proper county, and all contests for district and circuit offices, not otherwise provided in this act, shall be tried in the county giving the largest vote for such office at such election; and whenever any elector shall choose to contest such election, he shall file with the auditor of the proper county, within ten days after such person has been declared elected, a written statement specifying the grounds of contest, verified by the affidavit of such elector.” Sections 4759-4761 provide for notice to the contestee and to the commissioners; for the trial of the issue by the commissioners, and the rules of procedure in such trial. Section 4762 provides for an appeal to the circuit court from the decision of the commissioners. Section 4768 provides for an appeal to this court from the decision of the circuit court. The act of March, 1889, was not designed to embrace all of the subjects and incidents relating to elections, the holding of office, and the exercise of official functions and duties. It expressly repeals only such laws as are inconsistent with its provisions, and the subject of contests, not having been included in its terms, may not be said to be inconsistent with its provisions. Elliott, Supp. §§ 1323-1389, inclusive. It was certainly not intended that the action of the election officers in rejecting a ballot should be final and conclusive. The required preservation of the disputed ballots sufficiently attests this conclusion. By the language of section 1374, Elliott, Supp., recognition of an existing right of contest is given in the provision that “in any contest of election such ballots and seals may be submitted in evidence.” No appeal from decisions of the election board is provided by the new act, and none existed before. An original method of correcting errors and abuses of the election boards, where the rights to an office depended upon such action, existed before the Australian law, and has not been repealed or substituted. The right of contest by that method still exists. The tribunal possessing jurisdiction to hear such contest was designated, and its proceedings were defined. That jurisdiction has not been disturbed, and it was, in the case in review, properly invoked.
As we understand the appellant's contention, it is that the act of March 6, 1889, repeals the former law giving the right and defining the mode of contesting elections. We do not agree with this view. The special finding, after stating the candidacy of the appellant, the appellee, and said Crabb, their eligibility, the number of votes counted for each by the election board, as alleged in the complaint, the form of the ballots, the return of the disputed ballots in properly sealed and indorsed bags, and their preservation, further states that in the various precincts in question 80 ballots were not counted, but were disputed, and so returned. The finding then states the character of the ballots so rejected, in 56 specifications. It is concluded by the court that 16 of such ballots should have been and were correctly rejected; that 42 of said ballots should have been counted for the appellee; that 17 of said ballots should have been counted for the appellant; that 3 of said ballots should have been counted for said Crabb; that 1 of said ballots was for the People's ticket, and one was for the candidate for congressman only. The seventh conclusion of law by the court was “that the whole number of legal ballots cast for said three respective candidates for county commissioner, south...
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