Jones v. State ex rel. Wilson

Decision Date15 November 1899
PartiesJONES v. STATE ex rel. WILSON.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Jefferson county; P. E. Bear, Judge.

Information by the state, on the relation of David Wilson, against Lewis Jones. From a judgment in favor of relator, defendant appeals. Affirmed.

Simeon E. Leland, for appellant. W. T. Friedley and L. V. Cravens, for appellee.

HADLEY, J.

David Wilson, as relator of the appellee, filed an information, under section 1145, Burns' Rev. St. 1894, to determine his title to the office of trustee of the town of Hanover, and to oust the appellant therefrom. The information alleges that the relator was on the 2d day of May, 1898, and for two years prior thereto and ever since has been, a resident of the Third ward of the town of Hanover, and is over the age of 21 years, and eligible to be elected and hold the office of trustee of the Third ward; that Hanover is an incorporated town; that an election pursuant to the statutes was held in said town on said 2d day of May for the election of town officers, among which was trustee of the Third ward, and the relator and defendant were the only candidates for said office voted for; that the total number of votes cast at said election was 67, of which the defendant received 27 and the relator 40, and the relator was thereby duly elected to said office for two years; that the certificate of election was issued to the defendant, who did not receive a majority of all legal votes cast, and refused to the relator, who did receive a majority of all the legal votes cast; that on the 4th day of May the relator qualified as such trustee by taking the oath prescribed by law for the faithful discharge of his duties; that the defendant since the 3d day of May has been claiming that he is the duly-elected trustee of the Third ward, and is disputing the relator's title thereto.

Appellant's demurrer to the information was overruled, and this furnishes the ground for his first complaint in this court. His objectionto the information is that the averment by the relator “that he was eligible to be elected and to hold the office of trustee is pleading a conclusion, and not a fact. We do not think so. Eligibility is as much a fact as ownership, and it has been uniformly held in this state that, in a suit to quiet title, it is sufficient for the plaintiff to aver ownership generally, without pleading the evidence of such ownership. Rausch v. Trustees, 107 Ind. 1, 8 N. E. 25, and cases cited. The statutes require that the information shall consist of a plain statement of the facts which constitute the grounds of the proceeding, and which show the relator's interest in the matter; and we think the statute and rules of practice are satisfied, in a case like this, by the averment of the ultimate fact of eligibility, without pleading any of the evidentiary facts constituting such eligibility. Reynolds v. State, 61 Ind. 392;State v. Bieler, 87 Ind. 320;State v. Long, 91 Ind. 351. The information was sufficient, and the demurrer thereto was properly overruled.

Upon appellee's motion the court struck out a part of appellant's answer, and this is also assigned as error. That part of the answer stricken out, so far as it was material to the defense, related to irregularities in the relator's nomination and certification to the town clerk, and in effect traversed the averment in the information that the relator was eligible to be elected trustee, and hence admissible under the general denial which was pleaded. There was no available error in sustaining the motion to strike out.

There was a special finding of facts, from which it appears that Hanover is an incorporated town, and on the first Monday of May, 1898, held an election for the selection of town officers under the laws of the state; that prior to the election, to wit, April 2, 1898, the voters of a political party met in mass convention in the town, and nominated a candidate for each of the offices to be filled, including the relator for trustee of the Third ward; that the chairman and secretary of the convention certified a list of the nominations so made, including the name of the relator as the candidate of the party in convention for the office of trustee of the Third ward, to be voted for at the approaching May election, and verified said certificate by their several oaths before a notary public, but did not acknowledge the same before some officer authorized to take acknowledgments to deeds, and on the 3d day of April filed said certificates so authenticated with the clerk of the town; that the relator was a candidate before said convention for trustee of the Third ward, and accepted its nomination and became the candidate of his party for said office to be voted for by the people at said election; that at the time of said convention the relator was, and had been for two years prior thereto, a bona fide resident and legal voter of the Third ward of said town, was 70 years of age, and eligible to be nominated by the convention, and eligible to the office of trustee of the Third ward; that on the 11th day of April, 1898, the voters of another political party met in mass convention in said town, and nominated a candidate for each of the offices to be filled at the May election, including appellant for the office of trustee of the Third ward; and the chairman and secretary of the convention duly certified the nominations so made, including the name of appellant as the candidate of the party for the office of trustee for the Third ward, to be voted for at the May election, which certificate was duly signed by the president and secretary, and acknowledged as deeds are acknowledged, and filed with the town clerk, on the 12th day of April; that appellant was a candidate before his party convention, and accepted its nomination, and was a candidate before the people, to be voted for at the election, and was a legal voter of the Third ward, and had been such voter and a resident therein for 10 years, and was 70 years of age, and eligible to be nominated, and eligible to the office of trustee of the Third ward; that the relator and appellant were the only opposing candidates, and the only ones voted for at said election, for said office; that appellant's party convention selected a party title and device to head its ticket, and properly certified the same to the town clerk; that the relator's party convention did not select any party device for its ticket; that the town board appointed no board of election commissioners; that the town clerk, upon receipt of the two party certificates of nomination, acted upon the same, and procured the printing of an official ballot containing the names of all the candidates certified to him by the two conventions, including the names of the relator and the appellant; that said official ballot was prepared by the clerk by placing appellant's party device, certified to him, in the circle at the head of his party ticket, and immediately below it the name of the ticket by which his party is generally known, in large letters, and by placing a circle at the head of the relator's party ticket, without any device, and immediately below the circle was printed in large letters the name of the ticket by which his party is usually known. Proper squares appeared to the left of each name and office voted for on both tickets, and the words “For Councilman” were used on both tickets for the words “For Trustee,” immediately above the names of both relator and appellant. Neither circle at the head of the ticket had printed on the outer edge directions how to vote a straight ticket. Both the relator and appellant were openly announced candidates for the office of trustee of the Third ward, and the clerk, of his own motion, and without the knowledge or consent of either the relator or appellant, placed their names upon the official ballot as candidates for “councilman.” George Walker was appointed inspector of elections by the town board, and received 200 official ballots from the printer, and took them to the voting place on the day of the election, and delivered them to the board of election, which was constituted according to law, and the same were by them delivered to the voters as they presented themselves for the purpose of voting. No other ballots were voted than those described. Each ballot voted was indorsed by the poll clerks placing their initials upon the outer and upper right-hand corner. Sixty-one legal voters of the town cast their ballot for the opposing candidates for trustee of the Third ward. Of that number the relator received 37 legal votes, and the appellant received 24 legal votes. When the election board began to count the votes to ascertain the result of the election, it decided, at the time the first ballot was taken out of the box, not to count any of the ballots that were cast for the relator, for the reason that the ticket upon which his name appeared had at its head no device or emblem, and did fail and refuse to count all such ballots for the reason given, and no other; and, of the 61 ballots cast by legal voters, said board counted only those cast for appellant, to wit, 24. When the refusal to count the ballots cast for the relator was determined upon, a protest was made by King, one of the judges of election, against such refusal, whereupon the ballots cast and not counted were placed in a paper bag and tied with a string, but not sealed, and placed in the custody of the town clerk. There were only 67 ballots cast at said election, and the remainder of the 200 printed were destroyed by burning by the board before adjournment. No written protest was indorsed upon the ballots not counted and subscribed by the poll clerks. A protest was made and written upon the tally sheets, and signed by each member of the board and poll clerks. The town clerk kept the ballots so delivered to him safely in said paper bag, unbroken and unopened,...

To continue reading

Request your trial
43 cases
  • Mitchell v. Kinney
    • United States
    • Alabama Supreme Court
    • January 15, 1942
    ... ... Disque, jr., judge ... Beddow, ... Ray & Jones and Roderick Beddow, all of Birmingham, and ... Harris & Harris and ... We may ... observe here that the public policy of this state as to ... construction and application of the election laws has found ... important question was again considered in Ex parte State ex ... rel. Bragg, 240 Ala. 80, 84, 85, 197 So. 32, 36, where it was ... declared: ... ...
  • Weber v. City of Helena
    • United States
    • Montana Supreme Court
    • March 19, 1931
    ...in Goodell v. Judith Basin County, 70 Mont. 222, 224 P. 1110, 1116, where the court adopted the following rule from Jones v. State, 153 Ind. 440, 55 N. E. 229: “All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose;......
  • Bd. v. Dill
    • United States
    • Oklahoma Supreme Court
    • April 19, 1910
    ...in election statutes: Barnes v. Supervisors, 51 Miss. 305; State v. Russell, 34 Neb. 116; Marion v. Territory, 1 Okla. 240; Jones v. State ex rel., 153 Ind. 440; Halls v. Schvenecke, 128 Mo. 661; State v. Gay, 59 Minn. 6; Hanscomb v. State, 10 Tex. Civ. App. 638; Moore v. Sharpe (Tenn.) 41 ......
  • Clark v. Quick
    • United States
    • Illinois Supreme Court
    • September 15, 1941
    ...their violation. Ill.Rev.Stat.1939, chap. 46, par. 474. In the above case the court quoted with approval from the case of Jones v. State, 153 Ind. 440, 55 N.E. 229, as follows: ‘All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT