Kimerer v. State ex rel Black
| Decision Date | 23 November 1891 |
| Docket Number | 16,248 |
| Citation | 29 N.E. 178,129 Ind. 589 |
| Parties | Kimerer et al. v. The State, ex rel Black |
| Court | Indiana Supreme Court |
From the Lake Circuit Court.
Judgment affirmed.
J. E Cass and A. L. Jones, for appellants.
N. L Agnew, S. C. Spencer and D. E. Kelley, for appellee.
William T. Brown and Lewis Green were candidates for election to the office of township trustee at an election held in April 1890, in Washington township of Porter county, and each received an equal number of votes.
This action was instituted to compel the election board to meet and determine by lot the person entitled to the office.
We adhere to the doctrine enunciated in Johnston v. State, ex rel., 128 Ind. 16, 27 N.E. 422, and Wills v. State, ex rel., 128 Ind. 359, 27 N.E. 423, that section 4736, R. S. 1881, is constitutional, and that such election boards may be compelled, by mandate, to reassemble and determine by lot, which of the rival candidates for a township office, who have received an equal number of votes, shall be entitled to the office.
The appellants, who were the officers of the election board, in their return alleged that the candidates did not receive an equal number of votes at such election, but that one Frank Bundy, who was not a legal voter of the township, voted for one of the candidates, and that the officers of election, being ignorant of the fact that he was not an elector, received and counted his vote, and that, not counting this vote, one of the candidates had a majority.
We are of the opinion that the court did not err in holding this return bad.
The election officers, having counted the votes given for each of the candidates, and certified that the vote was a tie vote, can not be heard, in a proceeding brought to compel them to complete their official duties, to contradict such return.
If illegal votes were, in fact, received and counted for either or both the candidates, that must be determined by a contest of election, or other appropriate method, after one or the other of the rival candidates shall have received his certificate of election, when it can be determined, in an action in which proper parties are before the court, which of the candidates received the highest number of legal votes.
The court, in its mandate, fixed a particular time when the board should reassemble and proceed to cast lots. Objection is made to the fixing of a time for the performance of this duty. No objection is made to the time so fixed upon the ground that it was unreasonable, but the objection was to the fixing of any time.
We are satisfied that the action of the court was not only not erroneous, but was eminently proper. Motives of public policy require that the title and right to public offices should be settled speedily, and without such action of the court great delays in assembling an election board would often ensue. Some one must, of necessity, determine when they should reassemble, and it seems eminently proper that the court, in its mandate, should fix the time.
It appears that after the court made the mandate an appeal was taken to this court, and subsequently dismissed, during the pendency of which one of the judges of election moved from the State. After the appeal was dismissed, the relator filed a petition in the court in which the proceedings were had asking that the appellants be required to meet at the usual place of holding elections in the...
To continue reading
Request your trial