Clark v. Tracy

• Decision Date: 03 October 1895
• Citation: 64 N.W. 290,95 Iowa 410
• Parties: CLARK v. TRACY.
• Court: Iowa Supreme Court

95 Iowa 410

64 N.W. 290

CLARK

v.TRACY.

Supreme Court of Iowa.

Oct. 3, 1895.

Appeal from district court, Des Moines county; James D. Smythe, Judge.

These parties were candidates for the office of county attorney for Des Moines county, and votes were cast for each at the general election held November 6, 1894. November 12, 1894, the board of supervisors, sitting as a board of canvassers, declared incumbent duly elected. November 28, 1894, contestant filed his statement of contest with the county auditor, and a court of contest was duly organized, and convened December 18, 1894. Incumbent filed a motion to dismiss the proceedings upon the grounds that the statement of contest was not filed with the proper officer nor within the time required. This motion was sustained by the court of contest, and contestant appealed to the district court, where the motion was renewed, submitted, and sustained, and contestant appeals to this court. Reversed.C. L. Poor and John J. Seerley, for appellant.

S. K. Tracy, for appellee.

GIVEN, C. J.

1. If the office of county attorney is a county office, the statement of contest was filed with the proper officer. Code, § 697. In the recent case of State v. Kovolosky, 61 N. W. 223, this court held that it is a county office. It is insisted on behalf of incumbent that what is there said on that subject is dicta, and that the case was decided upon the authority of former rulings that the signature of the prosecuting officer to an indictment was not essential. The question under consideration was made and fully considered in that case, and we are content with the conclusion announced. That an additional reason was given for affirming does not lessen the force of the reasoning and conclusion on this question.

2. Section 697 of the Code requires that the statement of contest be filed “within twenty days after the day when the votes were canvassed.” In this case it was not filed within 20 days after the day when the judges of election made their canvass, but was filed within 20 days after the day the board of supervisors made their canvass. The contention is as to which of these canvasses section 697 relates, incumbent contending that it is only the judges of election who canvass the vote, and that the county and state boards canvass the returns. Section 622 of the Code says that the judges “shall proceed to canvass and ascertain the result of the election.” Section 633 directs that it shall be by comparing and correcting the poll lists, and sections following direct as to ballots to be rejected, and the return to be made to the auditor of the county. Section 635 provides that the board of supervisors “shall open and canvass the returns.” It requires that they make abstracts stating “the number of ballots cast in the county for each office, the name of each person voted for and the number of...