Lucas v. McAfee

• Decision Date: 25 October 1940
• Docket Number: 27457.
• Citation: 29 N.E.2d 403,217 Ind. 534
• Parties: LUCAS v. McAFEE et al.
• Court: Indiana Supreme Court

29 N.E.2d 403

217 Ind. 534

LUCAS v. McAFEE et al.

No. 27457.

Supreme Court of Indiana

October 25, 1940

Appeal from Jasper Circuit Court; Geo. F. Sammons Special judge.

Wildermuth & Force and John W. Wake, all of Gary, for appellant.

George E. Hershman and Samuel F. Sirois, both of Crown Point, for appellee Warren B. McAfee.

SHAKE Judge.

Lake County comprises a state senatorial district and as such will be entitled to elect two state Senators at the general election to be held on November 5, 1940. At the primary election of May 7, 1940, there were 12 candidates for the state Democratic senatorial nominations. The official returns indicated that the appellee Conroy received 7,347 votes; the appellant, Lucas, 6,990; the appellee McAfee 6,900; and the other candidates lesser numbers. Conroy and Lucas were declared to be the nominees, and McAfee instituted this action for a recount and to contest. The recount did not change the votes received by these candidates sufficiently to affect the result.

The complaint to contest and the evidence, which was stipulated disclose that on the 28th of April, 1923, the appellant Lucas, was convicted of conspiracy to violate the National Prohibition Act in the United States District Court for the District of Indiana; that he was sentenced to serve a year and a day in a federal penitentiary and to pay a fine of $1,000; that he served the sentence; that the judgment of conviction was not reversed; and that he had not been pardoned at any time prior to said primary election. It was further stipulated that the appellant was otherwise qualified to be a candidate for and to hold the office of state Senator. Upon this state of the record, the trial court found in favor of the contestor, now the appellee McAfee, and adjudged that he and Conroy were the nominees of their party for said offices. The errors assigned all relate to the right of the trial court to pass upon the qualifications of the appellant to hold the office of state Senator. The appellee McAfee relies upon § 49-303, Burns' 1933, § 13046, Baldwin's 1934, which provides that: 'It shall hereafter be deemed an indispensable qualification for persons to hold any office within the state of Indiana, either by election or appointment, that such persons shall never have * * * been convicted of * * * crime against the laws of the United States where the sentence imposed therefor exceeded six (6) months,' and upon §§ 29-2301 and 29-2302, Burns' 1933, Pocket Supplement, §§ 7428 and 7429, Baldwin's 1935 Supplement, by which it is provided that the election 'by popular vote to any district, circuit, county, township or municipal office, or the nomination of any person who is declared nominated at a primary election as a candidate for any such office, may be contested' on the ground that '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.'

The appellant asserts, first, that this action is not within the statute because he was not a candidate at said primary for the nomination for a 'district, circuit, county, township or municipal office.' He contends that a state Senator is a state official and that this action is therefore without the purview of the statute upon which it was predicated. With this conclusion we do not agree. It is true that members of the General Assembly are state officials, though they are elected by the voters of designated districts. Judges of circuit courts and prosecuting attorneys are likewise state officers, and this court has held that the above statute applies to contests of the election of circuit judges. Conley v. Hile, 1934, 207 Ind. 488, 193 N.E. 95; Martin v. Youngblood, 1937, 211 Ind. 647, 7 N.E.2d 997. So far as we are advised, there are no elective district officers in the state of Indiana, and the Legislature must have known that fact when it enacted the contest statute. The statute must be construed as intended to apply to the contest of the nomination and election of public officials chosen by the voters of districts, circuits, counties, townships, and municipal corporations.

The second proposition relied upon by the appellant is that the trial court possessed no jurisdiction to pass upon his qualifications as a candidate for nomination for state Senator. Two provisions of the state Constitution are called to our attention. Section 7 of article 4 defines the...