State ex rel. Beaman v. Circuit Court of Pike County

• Decision Date: 14 February 1951
• Docket Number: Nos. 28742,28743,s. 28742
• Citation: 229 Ind. 190,96 N.E.2d 671
• Parties: . Supreme Court of Indiana
• Court: Indiana Supreme Court

Page 671

96 N.E.2d 671

229 Ind. 190

STATE ex rel. BEAMAN v. CIRCUIT COURT OF PIKE COUNTY et al.

STAE ex re. BEAMAN v. CIRCUIT COURT OF GIBSON COUNTY et al.

Nos. 28742, 28743.

Supreme Court of Indiana.

Feb. 14, 1951.

Frank A. Symmes, Erle A. Kightlinger, Indianapolis, Edward L. Waddle, George N. Hornbrook, Petersburg, Ewing Emison, Vincennes, Mark P. Lockwood, Gerald E. Hall, Princeton, for appellant.

S. Hugh Dillin, Petersburg, Leo J. Stemle, Jasper, Loren McGregor, Princeton, for appellee.

BOBBITT, Chief Justice.

These cases, involving identical questions, were consolidated for briefing and are so treated in this opinion. They arise under Art. 27, §§ 324 to 340 inclusive, of ch. 208, of the Acts of 1945, and being §§ 29-5401 to 29-5417, Burns' 1949 Repl.

Relator and Charles C. Killion, petitioner below, were opposing candidates for the office of Joint State Senator from the senatorial district of Pike and Gibson Counties at the General Election held on November 7, 1950, and the only candidates therefor. Relator received a total of 11,090 votes and the said Killion received 11,026 votes. Relator Beaman was declared elected and a certificate of election was issued to him. Petitioner Killion subsequently, and within the time allowed by statute, filed a petition for recount under the provisions of said Art. 27, supra, in the Gibson and Pike County Circuit Courts. Recount commissioners were appointed by the judges of both courts and ordered to meet and assume their duties at a time fixed by each court. Relator then filed these actions in this court praying that a writ of mandate and prohibition issue to restrain further action by the Pike and Gibson Circuit Courts in said recount proceedings.

While other questions are presented in the briefs only three need here be considered.

First: Respondents contend that this Court is without jurisdiction to issue a writ of mandate or prohibition herein because respondents' actions under said Art. 27 are ministerial.

This Court has only such original jurisdiction as the Legislature has or may hereafter confer upon it. § 4, Art. 7, Indiana Constitution; Spence v. State, 1943, 221 Ind. 474, 48 N.E.2d 459. The Legislature has provided that: '* * *. Writs of mandate and prohibition may issue out of the Supreme and Appellate Courts of this state in aid of the appellate powers and functions of said courts respectively. Such writs of mandate may issue out of the Supreme Court to the circuit, * * * courts of this state, respectively, compelling the performance of any duty enjoined by law upon such circuit, * * * courts, * * *; and also writs of prohibition may issue out of the Supreme Court to such circuit, * * * courts, respectively, to restrain and confine such circuit, * * * courts, respectively, to their respective, lawful jurisdiction.' § 3-2201, Burns' 1946 Repl.

This Court has recently held that Art. 27 of ch. 208 of the Acts of 1945 is unconstitutional to the extent that it seeks to grant to the courts the power to determine the election, qualifications and returns of members of the Legislature. State ex rel. Acker v. Reeves (Ind.Sup.1951), 95 N.E.2d 838. An unconstitutional act is void ab initio and Art. 27, supra, in so far as it applies to members of the General Assembly was inoperative from the time of its passage. Strong v. Daniel, 1854, 5 Ind. 348, 349; Oolitic Stone Co. v. Ridge, 1910, 174 Ind. 558, 574, 91 N.E. 944; Tucker v. State, 1941, 218 Ind. 614, 35 N.E.2d 270.

Since the Act under which respondents have attempted to proceed is unconstitutional and void it confers no jurisdiction upon any court, either for the performance of judicial or ministerial acts. It must then follow that respondents in proceeding with a recount of the votes in these cases, by the appointment of Recount Commissioners and other acts, have gone outside of and exceeded their lawful jurisdiction. This being true this Court then has jurisdiction under the authority granted it by the Legislature to issue a writ of mandate and prohibition herein. Cf.--State ex rel. Hovey v. Noble, 1888, 118 Ind. 350, 21 N.E. 244, 4 L.R.A. 101; 50 C.J., Prohibition, § 29, p. 670.

Second: Respondents further contend that a recount of votes under Art. 27, supra, is not an adjudication of the election or rights to an office but is only a proceeding in discovery. Sections 29-5401 to 29-5417, Burns' 1949 Repl., set up a special statutory proceeding for the recount of the votes cast at any election held in Indiana. § 29-5414, which is a reenactment of § 14, ch. 122 of the Acts of 1941, provides as follows: '* * * When such recount is completed by the commission it shall make and sign its certificate showing the total number of votes received in such precinct or precincts by each candidate for such office or offices and state therein who received the highest number of votes in such precinct or precincts for such office or offices and by what plurality, and shall file the same with the clerk of the circuit court. The clerk shall enter such certificate in the order-book of such court. Such recount certificates shall supersede for all purposes all previous returns made in any form of the votes thus recounted; and certified copies of such recount certificates shall be prima facie evidence of the votes cast for such office or offices in such precinct or precincts in any contest or other proceeding in which there is an issue as to the votes cast at such election for such office or offices.' (Our italics.) It will be observed that the above section provides that a recount certificate shall supersede for all purposes all previous returns and shall be prima facie evidence of the votes cast for a particular office in any contest or other proceeding. § 29-5415 provides that the clerk of the Circuit Court shall, if the recount shows a result different from that returned by the County Canvassing Board, certify the same to the Secretary of State and the Secretary of State shall correct his records accordingly and 'the candidate shown by such corrected tabulation to have received the highest number of votes for such office shall be entitled to a certificate of election or...