French v. Lighty

• Decision Date: 27 November 1857
• Citation: 9 Ind. 452
• Parties: French v. Lighty
• Court: Indiana Supreme Court

9 Ind. 452

French v. Lighty

Supreme Court of Indiana

November 27, 1857

From the Fountain Circuit Court.

The appeal is dismissed with costs.

William H. Mallory, Isaac A. Rice, William C. Wilson,

James Wilson, Robert C. Gregory and C. Tyler, for appellant.

John Pettit, Daniel W. Vorhees and Joseph Ristine, for appellee.

OPINION

Perkins J.

Motion to dismiss the appeal. This is a case of contested election. The contest related to the election of a county officer. A motion is made to dismiss the appeal from the Circuit to this Court, on the ground that no such appeal lies.

It is then, a question of jurisdiction. Does the Supreme Court possess it?

The constitution says, (art. 7, sec. 4) that, "The Supreme Court shall have jurisdiction, co-extensive with the limits of the state, in appeals and writs of error, under such regulations and restrictions as may be prescribed by law. It shall also have such original jurisdiction as the General Assembly may confer."

If the Court, then, has jurisdiction in this case, it is conferred by some law. State v. Dunning, [ante, p. 20]. The General Assembly has conferred no original jurisdiction upon the Court touching the matter. Has it conferred appellate jurisdiction? In the first volume of the Revised Statutes, p. 269, is found an act entitled "An act to provide for contesting the election to any state, district, circuit, county, or township, office," pursuant to the provisions of which the proceedings appealed from were had.

That act authorizes no appeal to the Supreme Court. It gives an appeal in certain cases to the Circuit Court, but to none higher. It confers, then, no jurisdiction upon this Court to entertain the appeal in question. Is jurisdiction conferred by any other statute?

In the 2 R. S. p. 27, is found an act entitled "An act to revise, etc., practice, pleadings, and forms in civil cases," etc.--art. 27, sec. 550 of which (on page 158) provides that appeals may be taken from the Court of Common Pleas and the Circuit Court, to the Supreme Court, from all final judgments, etc.

But the appeals here spoken of, are in cases the trial of which is provided for in the act of which the appealing section forms a part, and no other. Of this there can, it seems to us, be no doubt. Hence, in the act relative to practice, etc., in criminal actions, is found (2 R. S. p. 381) a section authorizing an appeal in that class of cases; but that section gives an appeal in none but criminal cases. By no other statutory provision is it claimed that the appeal now in question is authorized. Here, then, we might stop. We have found that the act providing for contested elections gives no appeal to the Supreme Court; that the act regulating the practice in civil suits only gives an appeal in the cases embraced in that statute; that the act relative to practice in criminal cases only gives an appeal in that class of cases; and that no other statute gives this Court jurisdiction of that under consideration; while it is conceded that the Court cannot entertain it, unless empowered to do so by statute.

But there is another slightly different line of argument, which was ably pursued by counsel, and leads to the like result. We present, but need not elaborate it. It runs thus:

Appeals to the Supreme Court are authorized by the provisions in the practice act, in civil and criminal cases only.

A proceeding to contest an election is neither the one nor the other, but is simply what it is named--the contesting of an election.

It is so treated in our statutes, as has already been seen; the proceeding is authorized, the practice in it prescribed from beginning to end, and the Courts named within which it may be carried on, in a special statute, complete within itself, and under an appropriate title.

It is so treated, we conclude, reasoning analogically, in judicial decisions. In the matter of Smith, 10 Wend. 449; Ex parte Robinson, 3 Ind. 52. See Brown v. Woodbury, 5 Ind. 254.

The appeal now in question, then, being in neither a civil nor criminal case, but in a special proceeding under a special statute, is not authorized by the provisions in the acts above referred to. It is the unanimous opinion of the Court that the appeal should be dismissed with costs ^[1].

Per Curiam.

The appeal is dismissed with costs.

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Notes:

^[1]The opinion of the Court below has been published. The decision being final, an abstract of that opinion is appended.

This was a special proceeding to contest the election of David S. French to the office of treasurer and collector of Fountain county, under 1 R. S. 1852, ch. 34, pp. 269 to 273. Sections 20 and 21 of that chapter read as follows:

"Sec. 20. Appeals may be taken herein, as from other decisions of such board; Provided, the same be taken within ten days.

"Sec. 21. If, upon such appeal, the Circuit Court confirm such election, a certificate thereof shall issue; if such election be annulled, and no other person declared elected to the same office, it shall be declared vacant."

Several preliminary motions were made in the case. Counsel for contestee demanded a jury trial, which, after hearing argument and examining authorities, the Court refused. The question has since been settled by the Supreme Court in accordance with that decision. In Lake Erie etc., R. R. Co. v. Heath, post, p. 558, the Court say: "It has not been the practice in this state to try chancery causes, nor to assess damages in the laying out of highways, by jury (see Kemp v Smith, 7 Ind. 471); nor to try contested elections by that tribunal. Other cases might be named, etc. Not every case which is not a criminal one, is a civil one." French v. Lighty, [this case on appeal], at the same term, and many other cases, are referred...