Johnston v. State ex rel. Sefton

Citation27 N.E. 422,128 Ind. 16
PartiesJohnston et al. v. State ex rel. Sefton.
Decision Date08 April 1891
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from circuit court, Decatur county; J. W. Study, Judge.

D. A. Myers and Bonner, Sackett & Bennett, for appellant. Miller & Gavin and Ewing & Ewing, for appellees.

Elliott, J.

The relator, Oliver C. Sefton, William A. Williams, and James Parker were candidates for the office of township trustee. Alexander C. Johnston was the inspector, and Samuel T. Meek and John Foley were the judges, of the election. At the close of the election the votes cast were counted and canvassed by the election board, and it was found that the relator had received 89 votes, Williams 89 votes, and Parker 2 votes. The election officers certified that the relator and Williams had received the highest number of votes cast at the election. They refused, however, to determine by lot which of the two candidates was entitled to the office; and, although requested in writing, refused to reassemble and determine which of the two candidates who received the highest number of votes should be declared entitled to the office of township trustee. Our statute provides that, “if two or more have the highest and an equal number of votes for the same office, such judge shall, when the result is certified, determine by lot the person entitled to the office; and the next day the inspector shall make out and deliver to the person elected, when demanded, a certificate to each person elected to any office in said township, except justices of the peace.” Rev. St. 4736. Assuming that the statutory provision quoted is valid, the remedy adopted by the relator ( mandamus) is appropriate. The duties of election officers, when prescribed by statute, as in this instance, are imperative, and performance may be coerced by the writ of mandamus. Nor can the election officers evade their duties by adjourning without taking the action required by law. In discussing this question, the supreme court of Michigan said, in the case of Attorney General v. Board, 64 Mich. 607, 31 N. W. Rep. 539, in speaking of the members of the election board, that, “until they have done so, they have no right to dissolve their meeting. They can only get out of their office by completing their work. It would be worse than absurd to allow a board of canvassers to defeat the popular will, and destroy an election by neglecting to do what the law requires them to do.” The cases are harmonious upon the proposition we have asserted. Brower v. O'Brien, 2 Ind. 423;Kisler v. Cameron, 39 Ind. 488;Moore v. Kessler, 59 Ind. 152; State v. Gibbs, 13 Fla. 55; Hagerty v. Arnold, 13 Kan. 367; Lewis v. Commissioners, 16 Kan. 102; People v. Schiellein, 95 N. Y. 124;State v. Stearns, 11 Neb. 104, 7 N. W. Rep. 743;State v. Peacock, 15 Neb. 442, 19 N. W. Rep. 685;People v. Nordheim, 99 Ill. 563. The question upon which the case hinges is whether the statutory provision quoted is valid. The appellant's counsel ingeniously and plausibly argue that the provision is invalid, for the reason that it is in conflict with the provision that all elections shall be by ballot. Const. art. 2, § 13. We cannot concur with counsel that where an election is held, and results in a tie vote for opposing candidates, that the general assembly may not provide for determining the right to the office otherwise than by making provision for another election. Constitutions are framed by existing and organized society, and are to be construed with reference to well known practices and usages. State v. Noble, 118 Ind. 350-361, 21 N. E. Rep. 244; Durham v. State, 117 Ind. 477, 19 N. E. Rep. 327; Cooley, Const. Lim. (5th Ed.) 73. We know that the practice of determining a tie vote by lot prevailed before our constitution was adopted, and it is our duty to presume that the framers of that instrument were not ignorant or unmindful of this ancient usage. It is therefore no more than reasonable to hold that a statute providing for an election by ballot is valid, although it also provides for determining a tie vote by lot; for the framers of the constitution may well be deemed to have had this usage in view, and to have intended that it should be resorted to in case where an election should result in a tie between opposing candidates. Such a statute as the one before us does give the electors an opportunity to vote by ballot, and affixes to each vote all the force it is...

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