Fields v. Nicholson

• Decision Date: 05 January 1926
• Docket Number: No. 24352.,24352.
• Court: Indiana Supreme Court
• Parties: FIELDS v. NICHOLSON.

197 Ind. 161

150 N.E. 53

FIELDS

v.NICHOLSON.

No. 24352.

Supreme Court of Indiana.

Jan. 5, 1926.

Appeal from Circuit Court, Martin County; Milton S. Hastings, Judge.

Election contest by Luther Fields against H. Tilden Nicholson. From a judgment for defendant, plaintiff appeals. Reversed, with directions.Hiram McCormick and Frank E. Gilkison, both of Shoals, for appellant.

A. J. Padgett, of Vincennes, and F. Gavin, of Indianapolis, for appellee.

EWBANK, C. J.

Appellant was the plaintiff, and appellee the defendant, in an action to contest a township election. They were rival candidates for the office of township trustee of Baker township in Martin county. Plaintiff received 140 votes, and defendant 178 votes, and the board of election commissioners declared defendant elected, and issued him a certificate of election. But within the time allowed for contesting the election plaintiff filed with the board of commissioners a complaint, alleging that he and defendant were the only candidates for the office of township trustee at the election; that plaintiff was eligible to be elected to such office; but that defendant was not eligible by reason of the alleged fact that three weeks before the election he caused to be published in a weekly newspaper of general circulation in said Baker township a statement addressed to the voters of the township that he promised and pledged himself, if elected, to refund to the township out of his salary as trustee the sum of $150 per year, and to keep his office in his home without charge to the township for rent; that such publication constituted the offer of a bribe to the voters of the township for the purpose of inducing them to cast their ballots for him at the election; and that the voters had notice and knowledge of the fact when they cast their ballots. Defendant answered by a general denial, and by a paragraph of affirmative answer charging that the contestor (plaintiff) had been guilty of corrupt practices at and in the said election, in that he had offered to give, and did give, to persons who cast 25 or more votes for him a consideration either in money or promises to induce them to do so. Plaintiff replied by a denial. The trial resulted in a finding that plaintiff was not entitled to recover, and that defendant should recover his costs, and judgment was rendered accordingly.

Overruling the motion for a new trial is assigned as error, under which appellant has specified that the decision is not sustained by sufficient evidence, and is contrary to law. There is no conflict in the evidence; defendant not having offered any.

It was admitted at the trial that both the plaintiff and defendant were qualified voters of the township, and were candidates for the office of township trustee; that there were no other candidates; that plaintiff received 140 votes and defendant 178 votes for said office; and that the canvassing board of election declared defendant elected, and issued to him a certificate of election. It was also proved without dispute that defendant had caused the article to be published in a newspaper of general circulation in Martin county, as alleged in the complaint, which article was addressed “to the voters of Baker township, Martin county,” and stated that as candidate for trustee of said township defendant pledged himself, if elected, to refund to the township, out of his salary as trustee, the sum of $150 per year, and to make no charge for office rent, as his “mite” to relieve the depressed financial condition of people in the township. The article purported to be signed by him as a candidate for the office of trustee. It was also proved that five witnesses who were voters of Baker township, besides the plaintiff himself, had read the article before the election, but that all of the persons shown to have read it had voted for plaintiff. There was no evidence showing the extent to which said newspaper had circulated in Baker township, or the number of voters of that township who read the article (if any) other than plaintiff and the five who testified. There was also evidence that at least 25 other voters of the township had discussed the article, or heard it discussed, though they were not shown to have read it, and that no one of them had voted for plaintiff, while it was not shown for whom the others voted, or whether they voted at all. Except by inference from the fact that the article appeared in a newspaper of general circulation in Martin county, Ind., there was no evidence tending to show that more than 25 or 30 voters of the township knew, at the time they cast their ballots for either candidate for township trustee, that the article had been published; and there was no evidence that even one person who knew of its publication voted for the defendant, while he had a plurality of 38 votes. Neither was there any evidence that any of the persons who read it in the newspaper or heard it discussed had knowledge at the time they cast their ballots that causing it to be published had made the defendant ineligible to be elected as township trustee, or to hold that office, or that anybody whatever, knowing such facts, had voted for him willfully and defiantly in disregard of the known fact that he was not eligible; and there was no evidence that plaintiff had been guilty of corrupt practices, as alleged in the answer.

The statute provides that-

“The election of any person declared elected by popular vote to any office, whether state, county, township or municipal, may be contested by any elector who was entitled to vote for such person.” Section 6995, Burns' 1914 (section 4743, R. S. 1881).

[1] The stipulation that plaintiff was a candidate for trustee at the township election held on November 7, 1922, in said township, “and that he was a qualified voter of the township,” sufficiently established his right to maintain this action, if there was cause for a contest, without reference to whether or not he was, himself, entitled to the office. The statute further provides that such an election “may be contested for any of the following causes: *** Second. When the contestee was ineligible. ***” Section 7008, Burns' 1914 (section 4756, R. S. 1881). And the Constitution of the state of Indiana provides that-

“Every person shall be disqualified for holding office during the term for which he may have been elected, who shall have given or offered a bribe, threat or reward to secure his election.” Section 6, art. 2, and section 87, Burns' 1914.

[2] A candidate who is “disqualified for holding office,” within the meaning of the Constitution, is “ineligible to said office,” within the meaning of the statute. Carroll v. Green, 148 Ind. 362, 364, 47 N. E. 223;Tinkle v. Wallace, 167 Ind. 383, 386, 389, 79 N. E. 355.

[3] Causing the publication in a newspaper of general circulation in the county where the election was held of an article purporting to be signed by defendant, as candidate for the office of township trustee, stating that he promised and pledged himself, if elected, to refund to the township $150 per year out of his salary, and to make no charge for office rent, constituted the offer of a “reward to secure his election,” within the meaning of the Constitution. It is not material whether it also amounted to the offer of a “bribe” or not. Prentiss v. Dittmer, 93 Ohio St. 314, 327, 112 N. E. 1021, L. R. A. 1917B, 191. It follows that the trial court erred in overruling the motion for a new trial.

The record and briefs show that one of the questions presented to the court below, which it assumed to decide, and the question to which much of the argument and citation of authorities in this court are addressed, is whether or not the ineligibility of defendant, who received 178 votes, gives plaintiff the right to take and hold the office of township trustee although only 140 votes were cast for him. This question must be answered in the negative.

[4] The established rule in England is that, where the electors, having knowledge of facts which make a candidate for a public office ineligible to be elected thereto, and knowledge of the law which renders him ineligible because of those facts, shall willfully and obstinately persist in voting for him with notice and knowledge that he is wholly incapable of taking the office because of being ineligible under the law, such acts will amount to a refusal on their part to participate in the election, and the candidate receiving the...