Parvin v. Wimberg
| Decision Date | 17 March 1892 |
| Docket Number | 16,312 |
| Parties | Parvin v. Wimberg et al |
| Court | Indiana Supreme Court |
From the Gibson Circuit Court.
Judgment reversed, with directions to the circuit court to grant a new trial.
A Gilchrist, C. A. De Bruler and D. B. Kumler, for appellant.
J. M Butler, A. H. Snow, J. M. Butler, Jr., J. E. Williamson, P W. Frey and J. I. Walker, for appellees.
At the November election for the year 1890 the appellant and Henry Stockfleth were opposing candidates for the office of county auditor of Vanderburgh county in this State.
The board of canvassers having declared the appellant duly elected, this proceeding was commenced by the appellee Henry Wimberg before the board of commissioners of that county, to contest the election upon the alleged ground that Stockfleth had received more votes for the office than had been cast for the appellant.
The cause was appealed to the Vanderburgh Circuit Court, from which a change of venue was granted to the Gibson Circuit Court.
In the latter court issues were formed, upon which the cause was tried by the court, resulting in a judgment against the appellant.
At the request of the appellant the court made a special finding of the facts in the case, from which it appears, among other things, that returns of the election were made by the judges of election and canvassed by the board of canvassers, and that it was determined by the convass that the appellant had received 4,745 votes, and that Henry Stockfleth had received 4,735 votes, and thereupon the board declared the appellant duly elected.
It further appears that the appellant received twenty-seven votes at the election which were not counted for him, and that Stockfleth received sixty-one votes which were also rejected by the judges of election, and that the number so received by these parties, and not counted, were not included in the votes canvassed by the board of canvassers, and that the total number of votes cast at the election for the appellant was 4,772, and for Stockfleth 4,796.
The only question discussed by counsel on this appeal are questions arising on the ruling of the court below in overruling the appellant's motion for a new trial.
It is insisted by the appellant that the finding of facts above set out is not sustained by the evidence. It is also urged that the circuit court erred in admitting in evidence certain ballots offered by the appellee to sustain the issue tendered by him. It appears by the record before us that the appellee offered in evidence, on the trial of the cause, certain ballots, none of the squares upon which had been touched by the stamp, which ballots were admitted and read in evidence over the objection of the appellant.
As it is perfectly apparent that the court could not have made the finding set out above without counting some of these ballots, the question, therefore, as to whether they were admissible in evidence, and the question as to whether the finding is sustained by the evidence, may very properly be considered together.
The solution of these questions depends upon the construction of the act of the General Assembly, approved March 6th, 1889, known as the "Election Law:"
Section 26 of this act prescribes the following form of ballot to be used at all subsequent general elections, viz.:
Courtland C.
Rep.
Alvin P.
Prohi.
Joseph D.
Section 45 of the act provides that
It is contended by the appellant that the provision of this statute requiring the voter to indicate his choice by stamping the square is mandatory, while it is contended by the appellee that such provision is directory only, and that the voter may indicate his choice without touching the square with the stamp.
It is conceded that this law is an entire departure from the modes of voting known and used in this State prior to its passage. Such being the case, before any election was held under this law, the two leading political parties in the State, through the chairman of their respective State central committees, selected six practicing attorneys of the State, conspicuous for their legal learning, to whom the law was referred, with a request that they would construe and interpret it, and prepare instructions for the information and guidance of the electors and election officers of the State.
In the report of these eminent lawyers are found the following instructions, viz.:
It is fair to presume that the electors and election officers throughout the State accepted this as the true construction of the statute under consideration, and thereupon, in conducting the ensuing election, acted upon it. This construction having been accepted and acted upon by the officers whose duty it was to administer the law, the courts should not now ignore it, unless it is palpably wrong. Stuart v. Laird, 1 Cranch 299, 2 L.Ed. 115; Martin v. Hunter, 1 Wheat. 304, 4 L.Ed. 97; Cooley v. Board, etc., 12 HOW 299, 13 L.Ed. 996; Lithographic Co. v. Sarony, 111 U.S. 53, 28 L.Ed. 349, 4 S.Ct. 279.
The construction placed upon the statute by the committee to whom it was referred is not palpably wrong, but, on the contrary, we think, the conclusion it reached is the correct one.
The doctrine that it is within the power of the Legislature to prescribe the manner of holding general elections, and to prescribe the mode in which the electors shall express their choice, is too familiar to call for the citation of authority.
In this instance it has declared that the mode by which the elector shall express his choice shall be by stamping certain designated squares on the ballot. There is nothing unreasonable in the requirement, and it is simple and easily understood. Furthermore, if he is illiterate, or is in doubt, the law makes ample provision for his aid. If he does not choose to indicate his choice in the manner prescribed by law, he can not complain if his ballot is not counted. Kirk v. Rhoads, 46 Cal. 398.
If we hold this statute to be directory only, and not mandatory, we are left entirely without any fixed rule by which the officers of election are to be guided in counting the ballots. If ballots are to be counted when no square is stamped, at what distance from the square shall the stamp be placed before it can be rejected?
One board of election may reach one conclusion as to a class of ballots where the squares are not stamped, and another board may reach another and different conclusion as to the same class; and thus uncertainty and confusion prevail in a matter which the Legislature intended, we think, should be certain.
By an act of the General Assembly, approved March 6th, 1891 (Acts of 1891, p. 124), section 45 of the act now under consideration was amended so that a stamp placed upon a ballot which does not touch a square thereon is declared to be a distinguishing mark, and the ballot is not counted.
This amendment was intended, we think, to make certain that which prior to its passage was left, in some measure, to construction, but it only makes certain that which was intended by the Legislature when it passed the original section.
But little, if any, aid can be derived from the adjudged cases under the English and Canadian statutes, by reason of the marked difference between those statutes and the one we are now considering, but the cases under those statutes hold that unless there is a substantial compliance by the electors with the provisions of the statute the ballot can not be counted. Hazwell v. Stewart, 1 Ct. of Sess. 925; Robertson v. Adamson, 3 Ct. of Sess. 978; ...
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Hehl v. Guion
...that this indorsement shall be written with an indelible pencil or in ink is merely directory. Bowers v. Smith, 111 Mo. 45; Parvin v. Winberg, 130 Ind. 561; v. Wetzell Co. Court, 44 W.Va. 56; State v. Gray, 59 Minn. 6; Jenkins v. Brecken, 7 Can. Sup. Court, Rep. 247; Monk's case, 12 Can. L.......