State ex rel. Harry v. Ice
| Decision Date | 28 June 1934 |
| Docket Number | 26001 |
| Citation | 191 N.E. 155,207 Ind. 65 |
| Parties | STATE ex rel. HARRY et al. v. ICE et al |
| Court | Indiana Supreme Court |
1. ELECTIONS---Town Trustees---Sufficiency of Petition---Residence of Petitioners.---Petition for nomination for election of town trustees, reciting that undersigned petitioners are residents of Mt. Summit, held to sufficiently describe the residence and post office addresses of the petitioners. p. 66.
2. ELECTIONS---Town Trustees---Sufficiency of Petition---Qualifications of Petitioners.---While the statute requires that petitioners for nomination for election of town trustees be electors qualified to vote for the persons petitioned for, the petition need not show such fact, and, in the absence of a contrary showing, they will be presumed to be so qualified. p. 66.
3. ELECTIONS---Town Trustees---Sufficiency of Petition---Addition or Withdrawal of Names.---After the time has passed for filing petitions for nomination for election of town trustees, petitioners cannot withdraw their names therefrom, nor can other names be added. p. 68.
4. ELECTIONS---Statutory Provisions---Mandatory Provisions---When Treated as Directory Only.---Provisions of the election law, viewed as mandatory if enforcement is sought before election in a direct proceeding, will be held directory only in proceedings after the election, unless an essential element of the election is affected, or there is an express declaration in the statute that the act is essential to a valid election, or that its omission will render the election void. p. 71.
5. ELECTIONS---Statutory Provisions---Construction.---In the absence of fraud, actual or suggested, election statutes will be liberally construed to uphold the will of the electorate and prevent disfranchisement. p. 71.
Evans & De Witt, of New Castle, for appellants.
Paul Brown, of New Castle, for appellees.
Relators filed an information in quo warranto charging that appellees were holding the offices of town trustees of the town of Mt Summit pursuant to the result of an election which is asserted to have been illegal and void. The trial court sustained a demurrer to the complaint or information, and the only questions presented involve the correctness of that ruling.
It is alleged that neither primary election nor party conventions were held for the purpose of nominating candidates for town offices, and that no candidates were nominated by legal petition; that but one petition for the nomination of candidates for members of the board of town trustees was filed with the town clerk; that by that petition it was sought to place appellees in nomination and procure their names to be printed upon the ballot; that the petition was filed within the time provided by statute, and that it contained the requisite number of names, but that it was not accompanied by a certificate or jurat of an officer authorized to take acknowledgments, evidencing the fact that the signatures had been acknowledged. It appears that after the petition was filed, and after the time had expired for filing petitions, a certificate was filed showing the acknowledgment of the signatures of the signers. It is alleged that the petition did not show on its face that the petitioners were electors qualified to vote for the persons petitioned for, and that the post office address of the petitioners was not designated. The petition recites that the undersigned petitioners are residents of the town of Mt. Summit, which is a sufficient description of their residence and post office address. The statute does not require that the petition shall show that petitioners are electors qualified to vote for the persons petitioned for. It is merely required that they have such qualifications, and it will be presumed in the absence of a showing or allegation to the contrary that they were so qualified, and that the election officers ascertained such to be the fact.
It appears that on the 25th day of October, 1929, and after the statutory time for filing petitions had passed, and before the ballots were printed, five of the petitioners filed a new petition asking that their names be taken from the nominating petition, and that no election be held for the offices of town trustees, and that these withdrawals reduced the petitioners below the number required by statute. It is alleged that relators were the duly elected and qualified trustees of the town at the time the petitions were filed and that in view of the facts above set out they as such trustees held that no legal petition nominating candidates for the offices of town trustees was on file; that the time had passed for the filing of such nominating petitions, and that they refused to appoint an election inspector for the reason that no legal election could be held. The town clerk appointed election commissioners to serve with him, and they prepared ballots upon which the names of appellees were printed as candidates for the offices of town trustees. On the morning of election day an inspector was appointed by the bystanders at the polls; an election was had, and the elected town missioners declared appellees elected town trustees. It is alleged that appellees are asserting title to such offices and attempting to act as such officers; that, notwithstanding relators, acting as the board of town trustees, had refused to appoint an election inspector, no person took any action to compel them to appoint an election inspector. There is no allegation of fraud, or that the election and counting of votes had been otherwise than fairly and honestly conducted, or that the election officers who acted were not qualified.
Relators were holding offices as town trustees. Had they desired to continue they might have caused a petition to be filed nominating them to succeed themselves, if they could have procured the signatures of twenty qualified petitioners. In the event no election was held, they would continue in office until the next election. They seen to have made no effort to have themselves nominated and their names submitted to the voters at the election, but now assert their right to continue in office because no legal election was held.
They assert that even though the petition nominating appellees was valid and sufficient when filed, it became ineffective upon five of the petitioners asking that their names be withdrawn and that no election be had. This petition for withdrawal was filed after the time for filing petitions and, if relators' contention can be upheld, had the result of preventing the only persons who had been nominated from being voted for or elected to the office, thus insuring that relators would hold over. If nominating petitioners are permitted to withdraw their names after opportunity for supplying additional names, or filing new petitions, has passed, a very patent door to chicanery and fraud upon the voters and the community is provided. Good-faith candidates for whom great numbers of electors might desire to cast their ballots might be cheated and defrauded out of the right to have...
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