Martin v. Schulte

• Decision Date: 27 October 1932
• Docket Number: No. 26213.,26213.
• Parties: MARTIN v. SCHULTE.
• Court: Indiana Supreme Court

204 Ind. 431

182 N.E. 703

MARTIN

v.SCHULTE.

No. 26213.

Supreme Court of Indiana.

Oct. 27, 1932.

Appeal from Lake Circuit Court; E. Miles Norton, Judge.

Election contest by Frank R. Martin against William T. Schulte. From a judgment of the Circuit Court dismissing the proceedings, on appeal from the Board of Primary Election Commissioners of Lake County, the contestant appeals.

Judgment affirmed.

George Panea, of Hammond, for appellant.

George E. Hershman, of Crown Point, for appellee.

MYERS, J.

At the May primary, May 3, 1932, appellant and appellee, with eight other persons not parties to this action, sought the nomination on the Democratic ticket as a candidate at the coming November election for the office of Representative in the United States Congress from the First Congressional District of Indiana. As the result of this primary, as shown by the return of the board of primary election commissioners of Lake county, appellant received 6,531 votes and appellee 6,858 votes. Thereafter, appellant filed with the auditor of Lake county his verified statement which, after properly stating his qualifications as elector and eligibility for nomination on the Democratic ticket as the nominee of the Democratic party for the office of Representative, in substance, shows that Lake county constitutes the First Congressional District; that at such primary at least 1,000 illegal votes were cast and counted for the contestee; that at least 1,000 legal votes were cast for appellant and not counted for him, and that he received a majority of all the legal votes; that in a number of precincts, naming them, there were illegal votes, totaling 733 and all counted for contestee.

Appellee entered a special appearance before the board of commissioners, and moved to dismiss the contest proceedings so by appellant commenced, upon the grounds, in substance, following: That there is no law in Indiana authorizing a primary election contest for the nomination of a candidate on a party ticket for Representative in Congress; that by article 1, section 5, of our Federal Constitution, each House of Congress is the judge “of the elections, returns and qualifications of its own members.” This motion was sustained. An appeal was taken to the Lake circuit court where the motion to dismiss was renewed and by the court sustained, and judgment for appellee. This ruling of the court is assigned as error.

From the above statement taken from the record in the instant case, the dominant question seems to be, Does our primary law authorize the contest of a nomination for Representative in Congress made pursuant to that law?

[1] The primary law, with great particularity has provided the procedure to be followed in nominating candidates for political office, but there is no express provision in this law for the contest of any nomination made pursuant thereto, unless its language is comprehensive enough to authorize the contest of nominations by virtue of the provisions of the general election law for contesting elections. Our primary law for the nomination of candidates to be elected by popular vote for certain specified offices is of purely statutory origin, and takes the place of all other and former methods of making these nominations. It was unknown to the common law, and nominations thereunder are in no sense an election under that law. The words “nominations” and “elections” are not synonymous, and we must not assume that the Legislature intended them to be so used.

[2][3] It must be kept in mind that our consideration in the instant case is limited by the written statement of contestor filed with the auditor alleging illegal votes counted for contestee and legal votes cast for contestor but not counted for him by primary precinct officers in charge of receiving and counting Democrat primary votes. Political party nominations are partisan presentation of candidates for final choice by the qualified electors to discharge the duties of public offices. In the case of Newberry v. United States, 256 U. S. 232, 250, 41 S. Ct. 469, 472, 65 L. Ed. 913, it is said: “Primaries *** are in no sense elections for an office but merely methods by which party adherents agree upon candidates whom they intend to offer and support for ultimate choice by all qualified electors. General provisions touching elections in Constitutions or statutes are not necessarily applicable to primaries-the two things are radically different. And this view has been declared by many state courts. People v. Cavanaugh, 112 Cal. 674, 44 P. 1057;State v. Erickson, 119 Minn. 152, 137 N. W. 385;State v. Taylor, 220 Mo. 618, 119 S. W. 373;State v. Woodruff, 68 N. J. Law, 89, 52 A. 294;Commonwealth v. Wells, 110 Pa. 463, 1 A. 310;Ledgerwood v. Pitts, 122 Tenn. 570, 125 S. W. 1036.” See, also, Nixon v. Condon (D. C.) 34 F.(2d) 464, 470;United States v. Seymour (D. C.) 50 F.(2d) 930, 934.

Appellant, for his authority to maintain contest proceedings, points to section 7612, Burns' 1926, Acts 1881, Sp. Sess. pp. 482, 500, c. 47, § 81, General Election Law, and to sections 7406 and 7439, Burns' 1926, Acts 1915, pp. 359, 377, 391, c. 105, §§ 29, 61, of the Primary Law. These sections read as follows: Section 7612, supra: “All contests for county and township offices shall be tried in the proper county; and all contests for district and circuit offices, not otherwise provided in this act, shall be tried in the county giving the largest vote for such office at such election; and whenever any elector shall choose to contest such election, he shall file with the auditor of the proper county, within ten days after such person has been declared elected, a written statement specifying the grounds of contest, verified by the affidavit of such...