Board of Commissioners of Jennings County v. Fetter

• Decision Date: 31 May 1923
• Docket Number: 23,688
• Parties: Board of Commissioners of Jennings County et al. v. Fetter
• Court: Indiana Supreme Court

139 N.E. 451

193 Ind. 288

Board of Commissioners of Jennings County et al. v. Fetter

No. 23,688

Supreme Court of Indiana

May 31, 1923

From Jennings Circuit Court; Lawson N. Mace, Special Judge.

Action by Fred Fetter against the board of commissioners of Jennings County and others for injunction. From an order granting a temporary injunction, the defendants appeal.

Reversed.

F. E Little, William Fitzgerald, H. C. Melroy, W. S. Matthews, H L. Matthews, John Clerkin, Joseph W. Verbarg and Montgomery & Montgomery, for appellants.

John M Lewis, Hanna & Daily and George H. Batchelor, for appellee.

OPINION

Travis, J.

This is an appeal from an interlocutory order granting a temporary injunction, relative to the removal of the county seat of Jennings county.

July 3, 1916, Joseph D. Cone and others filed with the auditor of Jennings county a petition praying for an election on the question of relocating the county seat of said county at North Vernon. The auditor immediately on said day referred the petition to the board of commissioners, then in regular session, who forthwith took said petition under consideration, and ordered an election to be held on September 26, 1916. July 7, 1916, Crist and others sued for a temporary injunction to prevent the holding of such election, the application for which was denied, which denial, on appeal to the Supreme Court, was affirmed June 27, 1918, and on the day of December, 1918, dissolved its restraining order in said cause theretofore issued. (Crist v. Molony [1918], 187 Ind. 614, 119 N.E. 1001.) Plaintiffs on the day of -----, 1919, dismissed their said suit before final judgment. Thereafter, on the day of May, 1919, the board of commissioners, pursuant to the said petition of Cone and others, ordered a special election to be held in said county July 22, 1919. The official returns of such election showed that 2,232 votes were cast for, and 1,404 votes were cast against, the relocation of said county seat. The clerk of the circuit court certified such result to the auditor of said county, who thereupon filed said certificate with the other papers in said proceeding instituted before the board of commissioners by the petition aforesaid of Cone and others.

Appellee's complaint is in three paragraphs, the first of which proceeds upon the theory that the special election held July 22 is illegal and void and conferred no jurisdiction or authority upon the appellants, board of commissioners, the auditor and clerk of Jennings county, to proceed in the premises under authority of the returns of said election to relocate the county seat of Jennings county, for the reason, as alleged, that the order of said county commissioners setting the date for the special election was not made within the time provided by law; that the special election so ordered by the board of commissioners was not held within the time provided by law; and that, by the order of the board of commissioners appellant auditor of Jennings county, caused the ballots for said election to be printed, which ballots after being printed were delivered to said auditor; that a sufficient number of applications for absent voters' ballots was not provided; and that appellant, clerk of the Jennings Circuit Court, furnished applications for the use of absent voters favoring relocation, but refused applications to applicants known to be against relocation in time to enable such applicants to cast their votes; that the board of commissioners failed to provide a suitable room in each precinct in which to hold said election, and that the voting places prior to said election were not designated and notice thereof given by publication; and charged further that the board of commissioners and the petitioners for such removal of said county seat had not complied with the general laws concerning the relocation of county seats, and that, in so far as the special act purports to dispense with compliance with the general laws which pertain to the relocation of county seats, the special act of 1913 (Acts 1913 p. 906) is unconstitutional and void as a regulation of county business, with a prayer to enjoin the commissioners and auditor from acting in the proceeding for such relocation.

The second and third paragraphs of complaint proceed upon the theory that, through a conspiracy of certain precinct election officers in the nighttime preceding the day of election, the election paraphernalia was removed from the regular polling place to another secret place, and early in the morning of the election day, persons favorable to relocation were called and appointed to the places of the duly appointed election officials who were opposed to relocation and before the hour provided for opening the polls, and that, upon the new location of such precinct being found by the election officials opposed to relocation, such officials demanded their positions as such prior to six o'clock a.m., the time for opening the polls, but were excluded from such election room, and that no notice had been given to the voters of the change of such voting place in such precincts and that thereby many voters in each of such precincts who were opposed to relocation were prevented from voting at such election; that illegal votes in favor of relocation were counted by several of the election boards in said county, which fraudulently reported and certified a larger number of votes in favor of relocation and a smaller number of votes against relocation than were actually voted; and that such election officers returned such false and fraudulent election certificates to the board of canvassers; and that illegal votes in favor of the relocation were received and counted as legal votes, and legal ballots against relocation were counted and returned as votes in favor of relocation, and ballots favorable to relocation which were mutilated had been wrongfully counted in favor of relocation; and that ballots favorable to relocation had been, by such election officers, fraudulently substituted for legal ballots cast against relocation; and that the names of absent, dead, and fictitious persons, and persons who had not voted, were recorded as having voted; and that names of persons who had already voted were again recorded upon the poll lists and a corresponding number of fraudulent ballots in favor of relocation was made and placed in the ballot boxes as the vote of such persons; and that such ballots were counted, and ballots in favor of relocation were marked and placed in the ballot boxes without having been voted by any voter, all of which votes had been counted and returns made by the election officers and upon which the said certificate filed with the auditor was based.

The relief asked under the second and third paragraphs of complaint is that, upon the final hearing of this cause, the certificate of the result of the election be corrected and reformed to speak the truth, and that the defendant clerk of the Jennings Circuit Court, may be ordered and directed to make out and file with the defendant...