Brown v. Grzeskowiak

Decision Date08 November 1951
Docket NumberNo. 28761,28761
PartiesBROWN v. GRZESKOWIAK et al.
CourtIndiana Supreme Court

Eli F. Seebirt, Warren E. McGill, S. J. Crumpacker, Joseph G. Ettl, and George M. Eichler, all of South Bend, for appellant.

Robert Hollowell, Jr., Indianapolis, Theodore E. Prekowitz, George Sands, John C. Shively, and Edward Minczeski, all of South Bend, for appellee.

BOBBITT, Judge.

The parties were candidates for the office of clerk of the St. Joseph Circuit Court at the general election held on November 7, 1950. The appellant was declared elected by the county board of canvassers, and a certificate of election was issued to her.

On November 20, 1950, the appellee filed his complaint in 14 rhetorical paragraphs to contest the appellant's election and for a recount. A board of recount commissioners, duly appointed, reported that appellee had received a plurality of all votes cast, and a certificate of election was issued to him. In the contest proceedings which followed the trial court decided that appellee was duly elected to the office.

Following detailed formal allegations in the first six paragraphs of the complaint, paragraph 7 thereof reads as follows:

'That such petitioner--contestor--desires to contest such election upon the grounds and for the reasons:

'1.--Irregularity and malconduct of said County Election Board and County Board of Canvassers, all as hereinafter more particularly set out and referred to; and

'2.--On account of mistake in the official count of said votes cast at said election.

'That he honestly believes that as a result of the facts set forth herein as grounds of contest said contestee--Marcella Brown--was declared to have been elected to said office of Clerk of the St. Joseph Circuit Court when she had not, in fact, received the highest number of votes therefor.'

Paragraph 8 alleges in substance that said County Election Board received sealed envelopes containing marked absent voters' ballots, 46 in number, in time for said board to deposit them with the appropriate precinct election boards before the closing of the polls, but that said board wrongfully and unlawfully failed, neglected and refused to so deliver them. That the board did unlawfully keep and retain, after the closing of the polls, the possession of said marked ballots sealed in said envelopes, and that the board did then open the envelopes and aggregate and tabulate the votes.

Paragraph 9 alleges that the County Election Board and Board of Canvassers were guilty of irregularities and malconduct in that (a) the St. Joseph County Election Board failed, neglected and refused to deliver said purported unrejected absent voters' ballots and applications, 46 in number, to the inspectors of the several precincts, to be voted before the closing of the polls; (b) as a result the inspectors and precinct election officers did not open the carrier envelopes containing said absent voters' ballots, announce their names and compare the signatures; that the ballots were not delivered to the precinct clerks for initialing; and the inspectors did not deposit the ballots in a ballot box, and the names of these 46 persons were not entered upon the poll lists; and (c) because of these failures the precinct inspectors did not notify the challengers and poll book holders that he was about to deposit these ballots.

[230 Ind. 119] Paragraph 10 alleges that the Election Board and County Board of Canvassers tabulated and canvassed the votes cast for appellant and appellee, and when they finished their work the following day, the tally sheets so kept by the board showed that 40,575 votes were cast for appellee and 40,558 were cast for appellant.

Paragraph 11 alleges that thereupon said boards opened said sealed envelopes containing said 46 absent voters' ballots; took out the ballots; determined that of said 46 ballots 7 had been voted for appellee and 39 had been voted for appellant; entered said votes in the tally sheets and thereby showed and determined that appellant had received 40,597 votes and appellee had received 40,582 votes; that the board made a memorandum of the names and addresses of the 46 voters and of the precincts in which they claimed the right to vote; that the appellee does not know the names or addresses of the 46 voters or of the precincts in which they claimed the right to vote, and has set out all the facts of which he has knowledge.

Paragraph 12 alleges that on November 16, 1950, the county boards caused a statement to be drawn that all said ballots be counted for all candidates and offices, and thereby it was shown that appellant received 40,597 votes and appellee received 40,582 votes, and appellant was declared elected.

Paragraph 13 alleges that by reason of the inclusion of the 46 ballots appellant received 40,597 votes and appellee received 40,582 votes, and Hunt, the third candidate (on the Prohibition ticket) received 491 votes; that said 46 ballots were included in the total of 81,670 votes cast; that by reason of the facts hereinbefore set out said 46 ballots and the votes attempted to be cast thereby were and are void, and should not have been counted, and 'consequently the total number of legal and valid votes cast at said election for said office of clerk of the St. Joseph Circuit Court is the total of 81,624, and that of said number of legal and valid votes so cast said contestor received 40,575, said contestee, Marcella Brown, 40,558, * * *, and that said contestor, having received a majority of the legal votes cast for said office, was elected thereto by a majority of 17 votes; that the irregularity, malconduct and mistake of said County Election Board and County Board of Canvassers hereinbefore set out and alleged, was such as to cause said contestee, Marcella Brown, to be declared elected when she had not received the highest number of lawful votes at said election. * * *'

Paragraph 14 alleges that appellee was a candidate for said office at said election; that there were 151 precincts in the county, and that the office was voted upon in each and all of said precincts. It alleges the names and postoffice addresses of each of the opposing candidates, and further alleges that said petitioner--contestor--desires a recount of all of the votes at said election with respect to all of said precincts within said county; that he in good faith believes that either through mistake or fraud the votes cast for such office at said election in all of said precincts were not correctly counted and returned; that he desires to contest said election with respect to said office; that he desires a recount of all of the votes cast for said office in said 151 precincts.

In the prayer for relief appellee asks that a recount commission be appointed to make a recount, and with respect to the contest proceedings that the court hear and determine the issues raised by this petition and any answer filed thereto, and that the court declare the appellee elected and give judgment accordingly.

The statute designates those who may contest an election, § 29-5501 1, and prescribes the causes for an election contest, § 29-5502 2. In § 29-5504 it is provided that one desiring to contest an election shall file, within 15 days after election day, his verified petition setting out that he desires to contest such election, stating the names of all candidates at such election for the office involved, and specifying therein some one or more of the grounds for contest provided for in § 29-5502, and that he honestly believes that as a result of the facts set forth as a ground of contest, the contestee was declared elected when he had not in fact received the highest number of votes. If such contest is upon the ground of fraud or mistake in the official count, then if such contestor desires a recount of the votes cast for such office he shall so state in his petition, and a recount may be had under the provisions of §§ 29-5401 to 29-5417. Section 29-5409 provides that the petition therefor shall be granted upon the filing of the petition and undertaking. Section 29-5414 provides that the recount certificate supercedes for all purposes all previous returns made in any form of the votes thus recounted, and certified copies thereof shall be prima facie evidence of the votes cast for such office in such precincts in any contest or other proceeding in which there is an issue as to the votes cast at such election for such office.

Three questions determine the outcome of this action.

First: Appellant contends that the complaint puts in issue only the validity of the 46 absent voters' ballots therein referred to, it being her theory that the allegation of 'mistake in the official count' can only refer to the alleged 'mistake' of the County Canvassing Board in including the 46 ballots.

However, the complaint is broader in its scope. It does not merely allege 'mistake' on the part of the County Election Board and County Board of Canvassers, but alleges irregularity and malconduct as authorized by the first clause of § 29-5502. Much of the complaint is devoted to detailed allegations of irregular conduct on the part of the canvassing board in connection with said 46 absent voters' ballots. But it further alleges mistake in the official count of the votes as authorized by the fourth clause of the section. This latter allegation must refer to the precinct boards. It could hardly have reference to the alleged irregularity and malconduct of the canvassing board, for it is the duty of the canvassing board to aggregate and tabulate, and not to count, the votes. Section 29-5211, Burns' 1949 Repl.; State ex rel. Brown v. St. Joseph Circuit Court, Ind.Sup. 1950, 95 N.E.2d 632; Kunkle v. Coleman, 1910, 174 Ind. 315, 92 N.E. 61.

This is a special statutory proceeding. The act is specific as to what shall constitute a sufficient petition for contest or recount. See Gossard v. Vawter, 1939, 215 Ind. 581, 21 N.E.2d 416. The...

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