Sego v. Stoddard

• Decision Date: 24 January 1894
• Citation: 136 Ind. 297,36 N.E. 204
• Parties: SEGO v. STODDARD.
• Court: Indiana Supreme Court

136 Ind. 297

36 N.E. 204

SEGO

v.STODDARD.¹

Supreme Court of Indiana.

Jan. 24, 1894.

Appeal from circuit court, Porter county; J. H. Gillett, Judge.

Election contest by Joseph Sego against Heber Stoddard. Judgment for contestee, and contestor appeals. Affirmed.

A. L. Jones, Cass & Weir, and Kern & Bailey, for appellant. N. L. Agnew and E. D. Crumpacker, for appellee.

McCABE, J.

At the general election held on the 8th day of November, 1892, the appellant, Joseph Sego, was the Democratic candidate, the appellee, Heber Stoddard, the Republican candidate, one Harrison H. Williams the Peoples' candidate, and one William B. Gibbs the Prohibition candidate, for the office of sheriff of Porter county. At the meeting of the board of canvassers, convened in pursuance of law, there were canvassed and counted for each of said candidates, respectively, the following number of votes, viz.: For appellant, 2,020; for appellee, 2,023; for Harrison H. Williams, 100; and for William B. Gibbs, 114 votes; whereupon, appellee having been found by said board to have received the plurality of all the votes returned and canvassed, he was declared elected to said office. On the 15th day of November, 1892,-within 10 days after the result of said canvass was declared,-appellant filed in the office of the auditor of said county his statement to contest the election of appellee to said office. Issue, trial before the board of commissioners, resulting in a judgment by the board that appellee had received a plurality of all the votes cast at said election, and had been duly elected to said office. The appellant appealed to the circuit court of said county, where there was a trial by the court, special findings and conclusions of law, whereon there was another judgment rendered in favor of appellee, declaring that he had received a plurality of all the votes cast at such election, and had been duly elected to said office, from which judgment this appeal is prosecuted.

It is assigned for error that the circuit court erred in its conclusions of law. This is the only question presented by this appeal. The finding shows that the number of votes in the aggregate with which each candidate was credited by the canvassing board were all legal votes, and that each candidate was legally entitled to be so credited in the count. The controversy arises over 65 other ballots that had been returned to the clerk's office in sealed bags, none of which had been counted by the board of canvassers for either candidate. The finding and conclusions of law show that the 65 ballots so returned to the clerk's office uncounted had been cast by legal voters at said election, and that 23 of them were so stamped as to indicate the intention of the voters to vote for the contestee, Stoddard, and were free from marks or mutilations whereby said ballots could be distinguished, and should have been counted for the contestee; and the circuit court did so count them, making his whole vote 2,046. No question is made in appellant's brief against the correctness of this ruling. And of the uncounted ballots returned as aforesaid the court found as matter of fact, and stated in its legal conclusions, that 19 of them were so stamped as to indicate the intention of the voters to vote for contestor, Joseph Sego, and that said ballots were free from any marks or mutilations by which they could be distinguished, and should have been counted for said Sego; and the court so counted them for him, making his whole number of votes 2,039. No question is made on either side as to the correctness of this conclusion. The court further finds that two of said uncounted ballots were so stamped as to indicate the intention of the voters to vote for the contestor, Sego, and were free from marks or mutilations by which they could be distinguished, and were properly stamped; but that said two ballots were not protested by any member of the election board at said election whereat they were cast, and that the action of the election board in rejecting said ballots was unanimous in their decision that the same ought not to be counted, and said ballots were in no way disputed or protested, and for that reason the court concluded as matter of law that they ought not to be counted, and accordingly rejected them for that reason. Whether that conclusion of law was right or wrong, as we shall hereafter see, can make no difference in the result of this case. We have left of the uncounted ballots 21 yet to consider. One of these was found to contain a lead-pencil mark across the name of Thomas Hammond, a candidate for congress, on said ballot. Another bore evidence of having been stamped in the square opposite the name of William A. Henneger for congress on said ballot, and of having the stamp erased by a knife, or some other sharp instrument, so that it made a hole clear through the ticket; and was also stamped to the left of each candidate on the Republican ticket except Heber Stoddard. Five of said twenty-one ballots were stamped plainly and clearly in one of the large squares containing a device; and one of them, in which the stamp was in the square containing the eagle at the head of the Republican ticket, also was clearly and plainly stamped between the word “Republican” at the top of the ticket and to the left of the name William Johnston on said Republican ticket. Another is stamped in the square surrounding the rooster, and it is stamped in the square to the left of each of the names in the Democratic ticket. Another, stamped in the square surrounding the rooster, is also stamped on the square to the left of each of the names on the Democratic ticket. Another, stamped in the square inclosing the eagle, is also stamped to the left of the names of Allen Reynolds and Joseph Sego, on the Democratic ticket; it appearing that there was a full list of candidates' names for the various offices printed on the Republican ticket, including the offices for which Allen Reynolds and Joseph Sego were candidates. Another, stamped in the square inclosing the rooster, is also stamped in the square to the left of the name of Allen Reynolds on the Democratic ticket. Another ballot was stamped to the left of the names of Beck and Sego, in the Democratic ticket, and Coats, in the Republican ticket, Stoner in the Prohibition ticket, Yeoman, Shultz, Jones, Green, and Peck in the People's ticket, and is also stamped on the square to the left of the place for commissioner of the third district of Porter county, in a square opposite to which there is no candidate's name printed, and the ticket as to that office is left blank. Another was stamped in the squares to the left of the names of Hammond, Bartholomew, and Sego on the Democratic ticket, and to the left of the name of Burstram on the Republican ticket, and on the squares to the left of the names of Shultz, Green, Peck, and Hamfeldt in the Peoples' ticket; also in the squares to the left of the places for candidates for...