State ex rel. Robertson v. Circuit Court of Lake Cnty.
| Decision Date | 13 December 1938 |
| Docket Number | No. 27160.,27160. |
| Citation | 17 N.E.2d 805,215 Ind. 18 |
| Parties | STATE ex rel. ROBERTSON et al. v. CIRCUIT COURT OF LAKE COUNTY et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Original action by the State, on the relation of Joseph M. Robertson and others, against the Circuit Court of Lake County, Ind., and others to prohibit the respondent Circuit Courts from entertaining jurisdiction of election recount proceedings, wherein Arthur H. Berndt and others were allowed to intervene as respondents.
Temporary writ of prohibition made permanent.Edward H. Knight, of Indianapolis, and Albert H. Cole, of Peru, for appellant.
Robert D. Armstrong and Harold R. Woodard, both of Indianapolis, for appellees.
This is an original action filed in this court by the State of Indiana on the relation of Joseph M. Robertson et al., against seven circuit courts and the judges thereof, to wit: Lake, Vigo, Vanderburgh, Marion, Franklin, Clark, and Vermillion counties. By permission, and upon their petition, the opposing candidates to the relators have been permitted to intervene as respondents.
It is alleged in the petition that a general election was held in the State of Indiana on November 8, 1938, for the purpose of electing state officers; that the relators and respondents received votes as follows:
+-----------------------------------------------------------------------------+
¦Relator ¦Votes ¦Respondent ¦Votes ¦
+-----------------------------------------+-------+-------------------+-------¦
¦Treasurer of State ¦ ¦ ¦ ¦
+-----------------------------------------+-------+-------------------+-------¦
¦Joseph M. Robertson ¦776,280¦Arthur H. Berndt ¦771,875¦
+-----------------------------------------+-------+-------------------+-------¦
¦Superintendent of Public Instruction ¦ ¦ ¦ ¦
+-----------------------------------------+-------+-------------------+-------¦
¦Floyd I. McMurray ¦780,062¦Norman J. Lasher ¦768,983¦
+-----------------------------------------+-------+-------------------+-------¦
¦Clerk of the Supreme and Appellate Courts¦ ¦ ¦ ¦
+-----------------------------------------+-------+-------------------+-------¦
¦Paul Stump ¦779,074¦Paul C. Wetter ¦770,428¦
+-----------------------------------------+-------+-------------------+-------¦
¦Judge Supreme Court, First District ¦ ¦ ¦ ¦
+-----------------------------------------+-------+-------------------+-------¦
¦Curtis G. Shake ¦775,606¦Arthur Rogers ¦773,225¦
+-----------------------------------------+-------+-------------------+-------¦
¦Judge Supreme Court, Third District ¦ ¦ ¦ ¦
+-----------------------------------------+-------+-------------------+-------¦
¦H. Nathan Swaim ¦775,344¦Edgar M. Blessing ¦772,187¦
+-----------------------------------------+-------+-------------------+-------¦
¦Judge Supreme Court, Fifth District ¦ ¦ ¦ ¦
+-----------------------------------------+-------+-------------------+-------¦
¦Michael L. Fansler ¦774,629¦Harry L. Crumpacker¦771,879¦
+-----------------------------------------+-------+-------------------+-------¦
¦Judges of Appellate Court, First District¦ ¦ ¦ ¦
+-----------------------------------------+-------+-------------------+-------¦
¦A. Jewel Stevenson ¦776,067¦Chauncey W. Duncan ¦771,067¦
+-----------------------------------------+-------+-------------------+-------¦
¦William H. Bridwell ¦776,453¦Edgar Durre ¦769,832¦
+-----------------------------------------+-------+-------------------+-------¦
¦Judges of Appellate Court, Second ¦ ¦ ¦ ¦
¦District ¦ ¦ ¦ ¦
+-----------------------------------------+-------+-------------------+-------¦
¦Huber M. DeVoss ¦774,037¦Dan C. Flanagan ¦772,376¦
+-----------------------------------------+-------+-------------------+-------¦
¦Harvey J. Curtis ¦775,701¦Fred E. Hines ¦770,814¦
+-----------------------------------------+-------+-------------------+-------¦
¦Auditor of State ¦ ¦ ¦ ¦
+-----------------------------------------+-------+-------------------+-------¦
¦Frank G. Thompson ¦776,992¦Louis R. Markum ¦771,408¦
+-----------------------------------------------------------------------------+
The vote of the respective candidates was certified to the Secretary of State, who issued certificates of election to the successful candidates, relators herein, executed by the Governor of the state.
T. Joseph Sullivan, John W. Gerdink, John W. Spencer, Jr., Earl R. Cox, Roscoe C. O'Byrne, George C. Kopp, and G. Edward Bingham are respectively the judges of the circuit courts named. The defeated candidates for said offices, on the 18th and 19th days of November, 1938, filed in said seven circuit courts, separate petitions for a recount of the votes cast in each of said counties at the November election, 1938. Copies of the petitions filed by said respective candidates are filed as exhibits to the petition filed herein.
It is alleged that the circuit courts and the judges thereof, named as respondents herein, are whthout jurisdiction of the subject-matter of said recount proceedings instituted in said respective courts by the defeated candidates for the offices hereinbefore set out, for the reason that the petitions filed in the Vermillion, Franklin, and Clark circuit courts allege that said recounts and corrections of the vote cast for the respective offices at said election are sought pursuant to the provisions of Chapter 47 of the Acts of the General Assembly of the State of Indiana adopted at a Special Session in 1881; that said statute does not authorize or contemplate a recount of votes cast for state officers by a proceeding filed in the circuit court; that said defeated candidates have not asked in their petition for a recount of all the votes cast in the State of Indiana for the offices for which they were candidates at said general election; that, if it should be held that Chapter 47 of the Acts of 1881, Sp.Sess., authorizes a recount, then the statute is unconstitutional and void for the reason that the General Assembly has no constitutional authority to enact special or local laws applicable to less than all counties of the state in respect to a determination of the result for a general election for state offices, and has no authority to delegate to a defeated candidate the right to select counties in which such special proceedings for recounts may be instituted; that in the petitions for recounts filed by the defeated candidates in Vanderburgh, Vigo, Lake, and Marion circuit courts, it is alleged that the proceedings are filed pursuant to the provisions of Chapter 94 of the Acts of the General Assembly of the State of Indiana of 1921, Sections 29-2111 to 29-2120, Burns' Ind.St.1933; that said act is unconstitutional and void for the reason that it violates Sections 22 and 23 of Article 4 of the Constitution of the State of Indiana; that said statute attempts to provide for a recount of only part of the votes cast for the state officers at said election; that it attempts to provide for part only of the paper ballots cast at said general election, without providing for a recount of all the paper ballots cast throughout the state; that said Chapter 94 of the Acts of 1921 is not general and uniform in its operation throughout the state, in that it attempts to make the certificate of a recount of the votes cast on paper ballots, in counties where both voting machines and paper ballots for state officers are used, prima facie proof of the facts therein recited in any contest proceeding and conclusive for all other purposes, notwithstanding there is no other statute in the state providing that the certificate of any such recount shall be prima facie evidence thereof in any contest proceeding where paper ballots only are used; that said Chapter 94, Acts 1921, is not of general and uniform application throughout the state.
It is alleged that the respondent circuit courts are attempting and threatening to assume jurisdiction in said respective causes and will do so unless prohibited by this court. Other allegations allege the necessity of issuing the temporary writ of prohibition which heretofore has been issued. The respondents have answered the petition and the cause is now before this court for final determination.
Each of the petitions for the recount, filed as an exhibit to relators' petition herein, alleged that each ‘petitioner desires to contest said election for said office by the remedy or remedies provided by law and available to your petitioner for contesting said election for said State office.’
The only question involved under the Constitution and the laws of this state is whether a circuit court has jurisdiction to entertain a proceeding for a recount and contest of an election of state officers. The jurisdiction and duties of a circuit court of the State of Indiana, and the methods prescribed by which the court shall exercise its jurisdiction, must be conferred by constitutional and legislative authority. If the Legislature has failed to prescribe a method for the recount and contest of the election of state officers by a proceeding instituted in a circuit court in the state, then such court is wholly without jurisdiction. The burden is upon those seeking such recount and contest proceeding in the circuit court to point out a law expressly...
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