OPINION
Cox, C. J.
This
action was instituted by appellant under § 6995 Burns
1908, § 4743 R. S. 1881, before the Board of
Commissioners of Jackson County to contest the election of
the appellee to the office of sheriff of that county. The two
parties were rival candidates for that office. Upon issues
formed before the board, a hearing was had
and appellant failed to sustain his contest. He thereupon
appealed to the circuit court, and filed an amended
complaint, to which that court sustained appellee's
demurrer. This appeal involves this ruling only.
Section
6995, supra, reads as follows: "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. The person contesting such election shall be known as
the contestor; the person whose election is contested, as the
contestee."
Section
7008 Burns 1908, § 4756 R. S. 1881, states the causes on
which any such contest may be waged, as follows: "First.
For irregularity or malconduct of any member or officer of
the proper board of judges or canvassers. Second. When the
contestee was ineligible. Third. When the contestee, previous
to such election, shall have been convicted of an infamous
crime, such conviction not having been reversed nor such
person pardoned at the time of such election. Fourth. On
account of illegal votes."
Appellant's
amended complaint, under five specifications, attempted to
state facts establishing grounds for contest under the first,
second and fourth causes. Specifications four and five,
relating to the second statutory cause, were stricken out on
appellee's motion, and appellant makes no complaint of
that action. Omitting specifications four and five, the
complaint is as follows: "The contestor complains of
said contestee and says: That on the 8th day of November,
1910, that there was a general election held throughout the
State of Indiana, for the purpose of electing State, County
and Township officers: That at said election in said Jackson
County, Indiana, this contestor and said contestee were
candidates in said county of Jackson for the office of
sheriff of said county; that this contestor and said
contestee were the only candidates voted for
at said election for said office, except F. Browning, the
prohibition candidate therefor, who received sixty-six votes,
and except William H. Shutts, the socialist candidate
therefor, who received one hundred twenty-five votes for said
office. This plaintiff says that he was at the time of said
election and now is an elector of said county and that he was
then and there duly and legally entitled to vote in said
election, and was at said time and has continued to be
eligible and qualified to hold said office of sheriff. This
contestor avers that there was received and counted for him
as such candidate for said office 2,282 votes; that at said
election there was received and counted for contestee for
said office 2,295; that thereupon the said contestee, the
said Jerry McOsker, was on the 9th day of November, 1910,
declared elected to said office by the Board of Canvassers of
said county. This contestor now contests the election of the
said contestee, the said Jerry McOsker, to said office on the
following grounds: Specification 1. That on account of the
irregularity, illegality, mistakes and malconduct of the
election officers, election boards and canvassers of each and
all of the thirty-four election precincts of said county, the
same being the total number of precincts therein, legal votes
cast for the contestor therein for said office were not
counted for him; and illegal votes cast therein for the
contestee of said office were counted for the contestee; and
the legal votes cast for the contestor therein for said
office were not counted for any person for said office; and
legal votes cast therein for the contestor for said office
were uncounted; but considered and treated as marked, defaced
and mutilated ballots; and that if all of said legal votes
cast for contestor for said office in each and all of said
precincts of said county had been properly and legally
counted for contestor, he would have had and received a
majority of all the votes cast in said county for said
office, and would have been declared duly elected thereto by
the said County Board of Canvassers. Contestor alleges that
all of the ballots voted and cast in each of
the several precincts of said county as aforesaid
have been preserved and filed in the office of the Clerk of
the Jackson Circuit Court, as required by law, and that on a
proper and legal recount of the ballots cast for contestor
for said office in said several precincts it would appear and
be established that contestor had received a plurality of all
legal votes cast in said county for said office.
Specification 2. Contestor alleges that there was
irregularity, illegality, mistake and malconduct of the
election officers, election board and canvassers of the first
precinct, Jackson township of said County, in these things,
to-wit: That they omitted, failed and refused to count for
contestor all the legal votes cast for him therein for said
office; that they wrongfully counted for the contestee as a
candidate for said office more votes than he received
therein. That they failed and omitted to count for contestor
votes received therein for said office, but treated the same
as marked, defaced and mutilated ballots. That said election
officers and boards of said precincts wrongfully reported and
certified that said contestee received 87 votes therein, and
that contestor received but 69 votes therein for said office;
and that contestor believes that he received a sufficient
number of legal votes in said precinct that were uncounted
for him and which, if counted for him, would have given him a
majority of all the votes cast for said office in the several
precincts of Jackson County. Contestor alleges that all the
ballots and votes cast in said precinct at said election have
been preserved and filed with the Clerk of the Jackson
Circuit Court, as required by law, and that on proper recount
of all the votes and ballots cast in said precinct for said
office of sheriff, it would appear and be established that he
had received a sufficient number therein, which added to
other votes cast for him in the other precincts of said
county for said office, as reported by the several boards of
election therein, would give contestor the largest and
highest vote cast for said office and more votes than the
contestee received therein. Contestor alleges that he is unable to give a more specific and definite
description of the ballots cast for him, and which were not
counted and of the marked and mutilated ballots, than as
above stated, by reason of said ballots being in the
possession of the officer charged with their preservation and
keeping."
The
allegations with respect to each of the other thirty-three
precincts in the county are in terms the same as the one just
quoted, except as to number of votes counted for each of the
candidates in the various precincts. The complaint contains
these further allegations: "Specification 3. Contestor
alleges that in each and all of the thirty-four precincts in
Jackson County, Indiana, illegal votes were cast and counted
for the contestee for said office; that contestor cannot give
the number of illegal votes cast and counted for contestee in
any of said precincts because all the votes cast and counted
are now preserved according to law, and are in the custody of
the officer entitled to have charge of them, and contestor
does not have access to them and cannot examine said ballots;
that if illegal votes had not have been cast and counted for
contestee in each of said precincts of Jackson County, the
total vote cast in all of said precincts would have shown
that contestor received the highest number of legal votes
cast for said office at the said election. Wherefore,
contestor prays that each and all of the ballots cast and
voted for the candidates for the office of sheriff of said
county at said election in all of said precincts in Jackson
County, Indiana, as preserved, filed with and now held by the
Clerk of the Jackson Circuit Court, be re-counted and
canvassed, and the correct vote received by the respective
candidates for said office be ascertained and established,
and that contestor be held and declared to be the duly
elected sheriff of said county, and for all other proper
relief."
Appellee's
demurrer to the complaint was for want of jurisdiction over
the subject-matter of the action, and for want of facts
alleged to constitute a cause of action.
It is
first contended on the part of appellee that the obvious theory of appellant's amended complaint is for
a statutory recount of the ballots under the provisions of
§§ 6990-6994 Burns 1908, §§ 4738-4742 R
S. 1881, which could only be ordered by the circuit court, or
the judge thereof in vacation, upon petition there filed in
the first instance within ten days after the Thursday
succeeding the election, and as this proceeding was
instituted before the board of commissioners, which had no
jurisdiction to entertain a petition for and order a recount
under the statute, the circuit court acquired none. If the
amended complaint were nothing more than a petition for a
recount, this contention would...
