State ex rel. Heiney v. Wasson

• Decision Date: 03 January 1885
• Docket Number: 11,955
• Citation: 99 Ind. 261
• Parties: State, ex rel. Heiney, v. Wasson
• Court: Indiana Supreme Court

99 Ind. 261

State, ex rel. Heiney, v. Wasson

No. 11,955

Supreme Court of Indiana

January 3, 1885

From the Marion Circuit Court.

Judgment affirmed, at relator's costs.

D Turpie, J. W. Nichol and J. E. Franklin, for appellant.

T. A Hendricks, A. W. Hendricks, C. Baker, O. B. Hord, A. Baker E. Daniels, R. B. Duncan, J. S. Duncan, C. W. Smith and J. R. Wilson, for appellees.

Hammond, J. Elliott, J., did not participate in the decision of this case.

OPINION

Hammond, J.

This was a proceeding, in the nature of a quo warrante, against the appellee, to show by what right or authority he exercised the duties of the office of treasurer of Marion county.

A trial by the court resulted in a finding for the appellee, upon which judgment was rendered over the relator's motion for a new trial and exceptions. The overruling of that motion is the only error assigned. The causes for which the new trial was asked were, that the finding was contrary to the law and the evidence, not sustained by sufficient evidence, that certain evidence offered by the relator was improperly excluded, and that certain other evidence offered by the appellee was improperly admitted.

The questions in issue, as presented by the information and the answer, are stated in the appellant's brief as follows:

"The information herein, which is the complaint in such cases, is in two paragraphs. The information charges, substantially, that the relator received at the November election, 1882, 12,642 votes for the office of treasurer of Marion county, Indiana; that the said defendant Wasson had counted as cast for him 13,028 votes, and had been declared elected by a majority of 386 votes, and had been duly commissioned and qualified as such treasurer, and was acting as such in said office; but that the tickets cast for the defendant at said election were not printed 'on plain white paper, without any distinguishing mark or other embellishment,' as the law directs; 'but that the said tickets upon which said Wasson's name was printed were of smooth finish, upon white, double-ply cardboard, stiff and elastic, thicker than ordinary plain white paper,' and was 'such as to easily distinguish it from plain white paper.'

"The second paragraph of the information avers that the tickets upon which the defendant Wasson's name was printed at said election 'were not printed upon plain white paper' without any 'distinguishing mark or other embellishment,' as required by law, but were printed 'upon lithographic plate, stiff and elastic, smoother and thicker than plain white paper, and could be, and were, readily distinguished from tickets printed upon plain white paper, both by touch and sight;' 'that the election officers, viz., inspectors, judges and clerks could readily ascertain and know, both by touch and sight, and any other persons could readily know whether a voter was voting a Republican ticket or some other' at said election; that the Democratic and National tickets at said election were printed upon 'plain white paper;' that 5,000 of such lithographic plate tickets were cast and counted for the defendant at said election, in contravention, and in fraud of the statute upon the subject of elections; that such votes and ballots were fraudulent and void.

"The answer by Wasson is a special general denial, in which he admits that he has possession of the office, as charged, but denies that any of the ballots cast for him were fraudulent, or that he had any knowledge of their character before use."

The simple question presented by the record is, were the ballots cast for the appellee at the election under which he claims his office illegal?

Section 4701, R. S. 1881, being section 23 of "An act concerning elections," approved April 21st, 1881, Acts 1881, p. 482, is as follows:

"All ballots which may be cast at any election hereafter held in this State shall be written or printed on plain white paper, of a uniform width of three inches, without any distinguishing mark or other embellishment thereon except the names of the candidates and the offices for which they are voted for."

The case made by the information, so far as the pertinency of the evidence thereto is concerned, is that the tickets upon which appellee's name appeared were not printed upon plain white paper without any distinguishing mark, etc., thereon except the names of the candidates and the offices they were voted for; but, on the contrary, said tickets "were printed upon lithographic plate paper, which was stiff and elastic, smoother and thicker than plain white paper, and could be, and were, readily distinguished from tickets printed upon plain white paper, both by touch and sight."

It does not appear to have been the intention of the Legislature, in section 4701, supra, to require absolute uniformity in the ballot with regard to the grade or quality of the material upon which it is to be printed. It seems to be sufficient if the paper is plain white, of the width of three inches, and without distinguishing marks or other embellishments thereon, except the names of candidates, etc.

There was evidence in the case tending to show that there are various grades of paper known as plain white paper, some of which were heavy and others light. A witness testified that the words "plain white paper" would include all grades of white paper from common newspaper to the best class of book paper, and that the term "plain white paper" did not indicate any particular grade or quality of paper. There was much evidence to the same effect.

The tickets on which the relator's name appeared were printed upon what a witness described as "No. 2 book paper." Those containing the appellee's name were printed upon paper described by the same witness as "Western plate," or "lithographer's paper," which was heavier and thicker than the paper described as "No. 2 book paper."

While it would be competent for the Legislature to prescribe the quality and grade of paper to be used for ballots, it has not done so. In the absence of a statutory standard, the difficulty of judicially determining the grade and quality of paper that should be used for ballots is well shown in the following extract which we take from the brief of counsel for the appellee:

"There are ninety-two counties in the State of Indiana. We suppose that in a large majority of the counties the tickets would be printed by the local offices in the various counties; the paper which would thus be used for ballots throughout the State would vary according to the quality and grade of white paper in stock in the various offices. If even the cheap papers were found in stock in every office, unless they were the product of the same mill, there would not be a uniformity of appearance; it is at once seen that unless some given grade or quality of plain white paper is...