English v. Dickey

• Decision Date: 28 April 1891
• Docket Number: 16,074
• Parties: English v. Dickey
• Court: Indiana Supreme Court

27 N.E. 495

128 Ind. 174

English v. Dickey

No. 16,074

Supreme Court of Indiana

April 28, 1891

From the Decatur Circuit Court.

Judgment affirmed, with costs.

J. S Scobey, for appellant.

S. A Bonner, for appellee.

McBride J. Miller, J., took no part in the hearing and decision of this cause.

OPINION

McBride, J.

The appellant and the appellee were opposing candidates for the office of sheriff of Decatur county, at the general election in November, 1890. The board of canvassers declared the appellee elected, and thereupon the appellant instituted this proceeding to contest the election. The necessary preliminary steps having been taken, the auditor of the county issued and caused to be served on the board of county commissioners a notice convening them in special session on the 4th day of December, 1890, to try such proceeding, and also issued and caused the service on the contestee of notice, as required by section 4760, R. S. 1881. At the time fixed the board of commissioners convened, the parties, contestor and contestee, appeared in person and by counsel, and such steps were taken from time to time as carried the cause to the 22d day of December, 1890, which time was set for the commencement of the trial proper. On the 22d day of December, 1890, the parties appeared, and the contestor moved for a postponement of the cause to Friday, December 26th, 1890, which motion was sustained.

The record entry of this motion, and of the order postponing the cause, is as follows:

"Comes now the contestor by his attorney, and in person, and asks that the hearing of the cause at issue be postponed until Friday, December 26th, 1890, to which the contestee interposes no objections, and which was accordingly done."

On the 26th day of December, 1890, the board again convened, the parties appeared, and the contestee moved the court to discontinue the cause for the reason that more than twenty days had elapsed since the board of commissioners were called to try and determine the same.

The board sustained the motion. The contestor thereupon appealed to the circuit court. In the circuit court the motion to discontinue was renewed, and sustained by the court. The court thereupon rendered judgment confirming the contestee in his office, and against the contestor for costs.

The contestor, in his appeal to this court, assails the action of the court below upon two grounds:

1st. That the court erred in sustaining the motion to discontinue.

2d. That the court erred in rendering judgment against the appellant for costs.

Whether the motion to discontinue the cause was rightly sustained or not depends upon the construction to be given to sections 4760 and 4761, R. S. 1881. The two sections in question are as follows:

"4760. When such statement is filed with the auditor, he shall issue a notice to the board of county commissioners to meet at the court-house at a designated time, not less than ten nor more than twenty days thereafter, to try such contested election, and shall issue a notice to the contestee to appear at the time and place specified in the notice to the commissioners; which, with a copy of such statement, shall be delivered to the sheriff of the county, who shall, within five days thereafter, serve the same on the contestee, by delivering to him a copy of such notice and statement, or leaving a copy thereof at his last usual place of residence.

"4761. The auditor, at the request of either party, shall issue subpoenas, which shall be served by the sheriff. Such board of commissioners shall try and determine such contest; and shall have power to compel the attendance of witnesses, to swear and examine the same, to punish contempts as other courts, to adjourn or continue the trial from time to time, not exceeding twenty days altogether; to make the necessary orders for the payment of costs, and to coerce the payment of the same, and shall be governed in such trial by the rules of law obtaining in circuit courts. And if it be proved that any other person than the contestee has the highest number of legal votes, such board shall declare such person elected, and certify the same to the proper officer."

The controversy between the parties is over the twenty-day limitation contained in section 4761. Appellant's position is that it is not an absolute limitation, but is merely directory, and applies solely to the trial proper, after the cause has been submitted and the parties have commenced the introduction of testimony; while the appellee contends that it is mandatory, is an absolute limitation, and embraces the entire proceeding, beginning with the day when the board is convened and organized to enter upon the investigation, and that when twenty days have elapsed the board has no longer jurisdiction to proceed. But little authority has been cited bearing upon this question, and we are inclined to think the authorities are somewhat meagre; indeed, we not only know of no case wherein the precise question has been decided, but no authority has come to our attention wherein the questions decided have sufficient analogy to make them of much value as authority, except as they serve to indicate the rule by which to construe the statute. The policy of the law seems to be to compel prompt action in hearing and disposing of contested elections.

The learned author of McCrary on Elections places much emphasis on this. He says: "A statutory provision requiring notice of contest to be given within a given time, from the date of the official count, or from the declaration of the result, or the issuing of the certificate of election or the like, is peremptory, and the time can not be enlarged. * * * And it may be added that there is the strongest reason for enforcing this rule most rigidly in cases of contested elections, because promptness in commencing and prosecuting the proceedings is of the utmost importance, to the end that a decision may be reached before the term has wholly, or in great part, expired." Section 392.

Again: "The courts should require the parties to speed the cause, so that the official term which is in dispute may not expire, either in whole or in large part, before the final decision is reached." Section 396.

Again: "There is, however, a very strong reason for requiring any such amendment to be made instanter, and for bringing an election case to a prompt and speedy trial and determination, and it is this: The subject-matter of the controversy is daily growing less, and of less importance and value. The office is usually for a short term of one or perhaps several years only, and if the 'law's delays' are to be allowed in these as in other cases, the term would often expire before a decision could be reached." Section 407.

Again: "As we have already seen, there are strong reasons for requiring the parties to an election contest to use great diligence in preparing for an early trial." Section 408; of similar tenor is section 421.

The case of Bull v. Southwick, 2 N.M. 321, was an election contest. The statute limited...