State ex rel. Garn v. Board of Election Commissioners of Marshall County

• Court: Indiana Supreme Court
• Writing for the Court: Gillett, J.
• Citation: State ex rel. Garn v. Board of Election Commissioners of Marshall County, 167 Ind. 276, 78 N.E. 1016 (Ind. 1906)
• Decision Date: 31 October 1906
• Docket Number: 20,940
• Parties: State, ex rel. Garn, v. Board of Election Commissioners of Marshall County et al

78 N.E. 1016

167 Ind. 276

State, ex rel. Garn, v. Board of Election Commissioners of Marshall County et al

No. 20,940

Supreme Court of Indiana

October 31, 1906

From Marshall Circuit Court; Harry Bernetha, Judge.

Action by the State of Indiana, on the relation of Edward Garn against the Board of Election Commissioners of Marshall county and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

John W Parks and Merrill Moores, for appellant.

Charles Kellison, L. M. Lauer, H. A. Logan, Smith & Korbley and Morton S. Hawkins, for appellees.

Gillett J. Montgomery, J.

OPINION

Gillett, J.

September 29, 1906, relator, a citizen of Marshall county, filed his petition for an alternative writ of mandate, to require the board of election commissioners of said county, and John R. Jones and Francis Marion Burkett, constituting a majority of said board, to place on the official ballots, to be used at the next general election, in the second column of said ballot, under the device of the eagle, and accompanied with the designation, "Republican ticket," a certain list of names of persons who had respectively been nominated for certain designated county offices. An alternative writ was issued by the court, and appellees Jones and Burkett appeared and filed separate demurrers to the writ. These demurrers were sustained, and final judgment was rendered against relator.

Aside from certain practice questions, counsel for appellees offer but one objection to the complaint, and that is based on the contention that the facts alleged at most show a case wherein the board has a discretion to determine which of the two tickets it will permit to go upon the ballot as the ticket of the Republican party.

It is alleged in the petition and writ that the manner in which the Republican party of Indiana is organized is as follows: "In every voting precinct in the State a precinct committeeman is biennially elected by the voters of the precinct at a time fixed by the state central committee. In every county the precinct committeemen constitute the county committee, and choose their own officers under rules established by the state central committee, which consists, and for many years has consisted, of thirteen members, chosen one from each congressional district by the Republican voters of the district. In each district is a district committee consisting of the chairman of each county committee and of the member of the state committee for the district. The governing body of the entire organization is the state central committee, to which all local organizations and committees are inferior and subordinate." It fully appears that the adherents of said party in the thirty-three voting precincts of Marshall county met, pursuant to the call of said state committee, and elected precinct committeemen, who organized and selected relator as the chairman of the county organization; that said county committee and its chairman have at all times been recognized by the state committee; that the list of nominees, which the relator seeks to have recognized as constituting the Republican ticket, was selected by a convention held upon a call issued by relator, by the direction of said county committee and pursuant to the rules of said state committee, to the Republicans of said county; that the convention, whose nominees it is charged appellees intend to recognize as constituting the candidates on the Republican ticket, was called by persons claiming to be members of the Republican county committee, but who were not such in fact, and that said convention, having been a mass convention, was held contrary to an existing rule of the state committee, which rule is specially pleaded. It is further alleged that although demand has been made upon defendants that they place the list of nominees of said first-mentioned convention in the second column of the ballot, under the name and device of the Republican ticket, said defendants have refused to state what they will do, but that it is their intention and purpose to postpone action until the adjournment of the September term of the Marshall Circuit Court, for the purpose of avoiding mandate proceedings, and that they will then, in the printing of the ballots, cause the other list of nominees to be set out thereon in the place and under the name and device of the Republican ticket.

The election law provides that "in each county in the State, the clerk of the circuit court and two persons by him appointed, one from each of the two political parties that cast the largest number of votes in the State at the last general election, shall constitute a county board of election commissioners. * * * It shall be the duty of such board to prepare and distribute ballots for election of all officers to be voted for in such county other than those who are voted for by all the electors of the State. § 6214 Burns 1901, Acts 1889, p. 157, § 17. The next section contains the following provisions: "The said board of election commissioners shall cause to be printed on the respective ballots the names of the candidates nominated by the conventions of any party that cast one per cent of the total vote of the State at the last preceding general election, as certified to said boards by the presiding officer and secretary of such convention. * * * The certificate of nomination by a convention or primary election shall be in writing, and shall contain the name of each person nominated, his residence and the office for which he is nominated, and shall designate a title for the party or principle which such convention or primary election represents, together with any simple figure or device by which its list of candidates may be designated on the ballots; said certificate shall be signed by the presiding officer and secretary of such convention, or by the chairman and secretary of the county, city or township committee, who shall add to their signatures their respective places of residence, and acknowledge the same before an officer duly authorized to take acknowledgments of deeds. * * * In case of a division in any party, and claim by two or more factions to the same party name, or title, or figure, or device, the board of election commissioners shall give the preference of name to the convention held at the time and place designated in the call of the regularly constituted party authorities, and if the other faction shall present no other party name, title or device the board of election commissioners shall select a name or title, and place the same before the list of candidates of said faction on the ballot, and select some suitable device to designate its candidates. If two or more conventions be called by authorities claimed to be the rightful authorities of any party, the proper board of election commissioners shall select some suitable device to distinguish one faction from the other, and print the ballots accordingly. * * * Certificates and petitions of nomination of candidates for offices to be voted for by electors of any district or division of the State exclusively shall be filed with the clerks of the circuit courts of the counties or county included in or including such district or division." § 6215 Burns 1901, Acts 1889, p. 157, § 18. Section 6222 Burns 1901, Acts 1897, p. 49, § 1, provides that "the device named and list of candidates of the Democratic party shall be placed in the first column on the left-hand side of said ballot; and of the Republican party in the second column."

In the adoption of the Australian ballot system, under which a voter is required to register his choice upon an indistinguishable ballot, it was necessary that provision should be made by law whereby the printing and promulgating of the ballots should be taken out of the hands of political parties and individuals, and that the performance of these duties should be vested in public officers. Although constrained to do this from the necessity of the case, yet the lawmaking power, recognizing the potency of political parties as agencies of government, and being cognizant of the fact that the integrity of such an organization largely depends upon its ability to place before voters, under the party insignia, a list of candidates for office who stand for those tenets concerning government that the organization is supposed to represent, made provision for the placing of party tickets upon the ballot. As to the two larger parties, express provision was made concerning the place of each upon the ballot, it being provided that the list of candidates of the Democratic party should be placed in the first column and that the list of Republican candidates should occupy the second column. In order, so far as possible, to avoid controversies relative to the question as to which of two or more lists of candidates should be placed upon the ballot under a particular party name and device, it was provided that in case of division in any party, accompanied by a claim of two or more factions of the party of the right to use the name and device thereof, preference should be given to the list of candidates nominated by a convention "held at the time and place designated in the call of the regularly constituted party authorities," and it was further provided that if the other faction or factions failed to present some other party name and device, the board should select a name and device to designate the candidates thereof.

Where it appears that a list is composed of the nominees of a convention, which has been held at the time and place designated in the call of the regularly constituted party authorities, it is the duty of the board, there being a regular certificate of nomination, to set out such list of names in the proper place and under the party...