State ex rel. Jett v. Ives
| Decision Date | 19 June 1906 |
| Docket Number | 20,806 |
| Citation | 78 N.E. 225,167 Ind. 13 |
| Parties | State, ex rel. Jett et al., v. Ives et al |
| Court | Indiana Supreme Court |
From Carroll Circuit Court; John C. Nye, Special Judge.
Action by the State of Indiana, on the relation of William L. Jett and others, against George R. Ives and others. From a judgment for defendants, plaintiff appeals.
Reversed.
William S. Cochrane, Charles R. Pollard and John H. Gould, for appellant.
William A. Roach and Robert C. Pollard, for appellees.
November 7, 1905, relator Jett and one Julius were opposing candidates for the office of councilman in the first ward of the city of Delphi. They were the only candidates for said office, and each received sixty-four votes. The board of canvassers declared, and certified to the city clerk, that no person was elected to said office, and said clerk, in turn, certified said fact to the common council. Relators, voters in said ward, after a demand and a refusal, brought this action to compel the calling of a special election to elect a councilman in said ward. The court below sustained a demurrer to the petition and alternative writ, and from the judgment which followed relators appeal.
It is the contention of appellees' counsel that there is no law authorizing the calling of a special election to elect a municipal officer where there has been a failure to elect by reason of a tie vote, and they further contend that it was the duty of the common council to await the expiration of the terms of the councilmen in office and then to appoint a councilman to represent said ward. It is claimed that section forty-five of the act concerning municipal corporations, approved March 6, 1905 (Acts 1905, p. 219, § 3469 Burns 1905), authorized the making of an appointment in such circumstances. The portion of said section which appellees rely on reads as follows: "In case of a vacancy in the office of councilman, from death, resignation or other cause, the common council shall fill such vacancy at a special meeting, to be held at a time not less than ten nor more than fifteen days after such vacancy is discovered by such council; of which special meeting notice shall be given by the clerk as herein required when the council is to fill a vacancy in the office of mayor."
Taking up appellees' contentions in their order, we proceed to examine the legislation which was in force at the time of the adoption of said act. It was provided by section twelve of the general law concerning cities which was passed in 1867 (§ 3480 Burns 1901, § 3047 R. S. 1881), that "should two or more persons have an equal and the highest number of votes for the same office, such board of inspectors shall certify the fact to the trustees or common council, as the case may be, who shall immediately give notice, as in other elections, for a new election, specifying the office to be filled thereby and the ward, if a councilman, in which the poll is to be opened." It was provided by section sixteen of said act (§ 3483 Burns 1901, § 3050 R. S. 1881) that all vacancies in the office of mayor, city judge, clerk or councilmen should be filled by special election. The latter provision was changed as to vacancies in the office of mayor, clerk and councilmen by section one of the act of February 26, 1891 (Acts 1891, p 33, § 3484 Burns 1901), but, as we shall show hereafter, in discussing the meaning of the term "vacancy" as applied to a public office, the statute last mentioned in nowise affected the provision of section twelve above quoted. On the contrary, said provision was in full force when said act of 1905 was passed.
Turning to the general act concerning elections, approved April 21, 1881 (Acts 1881 [s. s.], p. 482), which also applies to cities, we find it provided by section fifty-three thereof (§ 6286 Burns 1901, § 4731 R. S. 1881), that This act also was in force at the time of the adoption of the act of 1905, supra, concerning municipal corporations. In addition, it is to be observed that two days before the last-mentioned act was approved, a further act concerning elections became a law, wherein it was provided (Acts 1905, p. 189, § 6, § 6275 Burns 1905): "If two or more persons shall have the highest and equal number of votes for a single office to be filled by the voters of such county or city, such county or city board shall declare that no person is elected to fill such office, and shall certify the same in the statement above provided and when filed the clerk shall certify the fact to the tribunal whose duty it is to supply the vacancies in such office, or to issue writ of election to fill the same as the case may require." While it may be granted that the legislature was in error in assuming that there was any city office which could be filled by appointment in case of a tie vote, yet it is perfectly clear that at the time of the enactment of said section, both under the municipal act of 1867, supra, and the general election law of 1881, supra, it was the imperative duty of a common council to call a special election to elect a member thereof where there had been a failure to elect by reason of a tie vote. So that when section six, supra, of the act of March 4, 1905, went into force, a failure to elect, by reason of a tie vote, created a situation in which, to paraphrase the language of said section, the case required the issuing of a writ of election. We do not, however, attach so much importance to said section as creating a substantive duty as we do to the fact that, as a statute which gives affirmative recognition to the existence of earlier provisions concerning the calling of special elections in such cases, and which in effect provides for the continued operation of such laws, it is to be reckoned with in determining whether all traces of the prior legislation were obliterated by the act concerning municipal corporations which became a law two days thereafter.
The language of the repealing clause of said last-mentioned act, so far as pertinent to this case, is as follows: "All former laws within the purview of this act except laws not inconsistent herewith and enacted at the present session of the General Assembly, are hereby repealed." Dealing with said repealing clause, and not with the general doctrine of repeals by implication, we think it may be said that said act did not necessarily repeal all prior legislation that may have had some relation to cities and towns. In State v. Reynolds (1886), 108 Ind. 353, 358, 9 N.E. 287, this court quoted with apparent approval the following language, found in Payne v. Conner (1813), 3 Bibb (Ky.) 180: "The meaning usually attached to this term (purview) by writers on law, seems to be the enacting part of a statute, in contradistinction to the preamble; and we think the provision of the act repealing all acts or parts of acts coming within its purview, should be understood as repealing all acts in relation to all cases which are provided for by the repealing act; and that the provisions of no act are thereby repealed in relation to cases not provided for by it." And see, also, 7 Words and Phrases, title "Purview;" 1 Lewis's Sutherland, Stat. Constr. (2d ed.), § 246.
We have been unable to find any mention of the subject of tie votes in the act of March 6, 1905, supra, aside from a provision which is found in section fifteen, but that section relates to towns. It therefore becomes material to inquire whether the provision of section forty-five which we have quoted, was designed to prescribe the rule of action for the filling of the office. The provision referred to has to do with "a vacancy" in the office of councilman. An election which is held in advance of the expiration of the term of an incumbent of an office is not an election to fill a vacancy. 1 Dillon, Mun. Corp. (4th ed.), § 222. Assuming, without deciding, that the two councilmen representing the first ward of the city of Delphi would not hold over until a councilman should be elected and qualified who should alone be entitled to represent said ward; or, in other words, assuming that the present law created a new office, and that the former offices of members of the common council from said ward would expire by limitation, so that an efflux of time would eventually work a vacancy, yet...
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