Conley v. Hile
| Decision Date | 12 December 1934 |
| Docket Number | 26094 |
| Citation | 193 N.E. 95,207 Ind. 488 |
| Parties | CONLEY v. HILE |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
J. L. Harman and Oscar Jay, both of Elkhart, Ray Deahl, of Goshen, O. H. Markel, of Elkhart, and Kitch & Kitch, of Plymouth, for appellant.
Verne G. Cawley, of Eklhart, and Thomas A. Davis, of Goshen, for appellee.
Appellee contested the election of appellant as judge of the Elkhart superior court. There was a judgment for appellee. The county canvassing board certified appellant to have been elected by nine votes upon the returns made by the precinct election boards, and he was commissioned by the Governor. Appellee instituted proceedings for a recount. The recount commissioners, as a result of the count, certified the contestor as receiving a majority of 21 votes. The county commissioners found for the contestor. There was an appeal to the circuit court, and it appears from the conclusions of law that the court from its examination of the ballots introduced in evidence found the contestor to have received a majority of 112 votes. There was judgment accordingly that the contestor was duly elected. It was stipulated and agreed that the contestor, appellee, had received 9,206, and the contestee, appellant 9,152 legal and uncontested ballots. 2,139 ballots were introduced in evidence, of which 1,249, 667 for appellant and 582 for appellee, were rejected by the court and not counted.
Appellant moved to dismiss the action on the ground that a judge of a superior court is not a county, township, or municipal officer, and that, therefore, the circuit court had no jurisdiction to try the case. The statute concerning elections, section 7597 et seq., Burns' Ann. St. 1926, provides in section 7612: '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.'
There is a prior provision for contesting the seat of the person elected to the house of representatives, but there is no other provision concerning judges or prosecuting attorneys, and the section must be deemed to apply to a contest of the office of judge of the circuit or superior courts and of prosecuting attorneys. While the question was not raised, this court recognized such to be the rule in the case of Williams v. Bell (1915) 184 Ind. 156, 110 N.E. 753.
Appellant moved to suppress the certificate of the recount commissioners for the reason that the petition for the recount did not show that the petitioner was an elector, and that, since only electors are entitled to contest an election, the petition for recount should not be granted. The statute, section 7587, Burns' Ann. St. 1926, provides that any candidate for office desiring to contest the election may petition for a recount. There is no provision that the petition must show that he is an elector, or qualified to hold the office. It merely requires that he shall have been a candidate for the office. The next section provides that: 'Upon the petition of such candidate, duly verified, showing that he desires to contest such election, and honestly believes that there was a mistake or fraud committed in the official count, and that he desires a re-count of the ballots cast at said election for the office for which he was a candidate, and upon proof that he has served a written notice upon the opposing candidate of the time and place of such application, five days before the hearing, and upon his furnishing a written undertaking, with sufficient freehold surety, that he will pay all the costs of such re-count, the court or judge shall grant the prayer of said petition and order said re-count to be made.'
Appellant contends that, because the petition did not allege that the petitioner 'honestly believes that there was a mistake or fraud,' it is not sufficient. The word 'honestly' is surplusage. One either believes a thing or does not believe it, and it is inconceivable that one might 'dishonestly' believe something to be true. The petition was verified upon information and belief, and this sworn statement that he believes there was a mistake or fraud is sufficient, and would be no stronger if it had contained the word 'honestly.' The petition is sufficient.
In his amended motion to suppress the certificate of the recount commissioners, it is alleged that the recount board adjourned during certain intervals, notwithstanding the legislative provision (Burns' Ann. St. § 7591) that no adjournments shall be had until the count is finished. It appears further that none of the keys to the receptacles in which the ballots had been placed were ever delivered to the Democratic member of the board of canvassers. But it is not alleged that the merits of the recount were affected by such irregularities, and the rights of the contestor cannot be forfeited or controlled by irregularities on the part of officials for which he was in no way responsible and which he could not control.
The purpose of the recount and contest statutes is to determine the result of the election as evidenced by the legal ballots of the qualified voters. In the absence of a showing of an invasion of the rights of the parties, the statutes will be liberally construed to accomplish their purpose, and mere irregularities on the part of officers will be disregarded.
Appellant predicates error upon the refusal of the court to grant him a trial by jury. It is well settled that election contests are not triable by jury. Pedigo v. Grimes (1887) 113 Ind. 148, 13 N.E. 700, and cases there cited; Gordon v. Corning (1910) 174 Ind. 337, 92 N.E. 59.
The other questions presented by appellant involve the sufficiency of the findings of fact, and the sufficiency of the evidence; that is to say, the correctness of the ruling of the trial court as to the legality of certain ballots. The court made twenty-four special findings of fact, upon which were announced six conclusions of law. In the findings of fact the court described approximately two thousand ballots, going into detail as to the manner of marking, but in all but a few instances failed to find the ultimate fact as to whether the marking constitutes a distinguishing mark such as is condemned by the statute and the decisions of this court. Following these findings, and the first four so-called conclusions of law, the court described by number more than two thousand ballots, which are declared to be either legal or illegal votes for the plaintiff or the defendant. The special findings in most instances are not sufficient to sustain these conclusions since ultimate facts are not found. The last two conclusions of law are: 'That the Contestor has a majority of one hundred twelve (112) of the votes cast for the office of Judge,' and that 'The law is with the Contestor.' But if this cause were reversed because of the insufficiency of the special findings, it would no doubt come here again on appeal, involving the merits of the ballots which mainly constitute the evidence, and eventually this court would be required to pass upon the merits of the case. Therefore, no good purpose would be served in remanding the case for new trial. Both appellant and appellee seem to take this view, for in their, briefs both request that we pass upon the merits of the ballots involved. An examination of the ballots which are questioned has involved much labor. Approximately two thousand separate ballots were examined.
On the merits, the principal contention of appellant involves the ruling of the trial court upon the numerous ballots described in findings numbered 12, 20, and 21. Finding 12 deals with 530 ballots; finding 20, with 420 ballots; and finding 21 with 155 ballots. All of these ballots are marked either in the circle at the head of the party column or in the squares in front of the names of the candidates. The crosses are very heavy, or heavily retraced, or one leg of the cross consists of one line and the other leg of double lines or retraced lines, and in some instances the legs of the cross consist of several lines each. Included in other findings are cases of multilation by attempted erasure, and instances where the ballot is marked with a single line or other device, which clearly does not meet the statutory requirement. Of the ballots in findings 12, 20, and 21, 244 were held good and counted by the trial court, while 861 were held bad and were not counted for either candidate. We feel that in many instances the trial court adhered to too strict a rule in holding that ballots bore distinguishing marks. It was said by this court in the case of Spaulding v. Romack (1916) 185 Ind. 105, 113 N.E. 229, 231, referring to section 7497, Burns' Ann. St. 1926: ...
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