State ex rel. Scheller v. Thornburg

• Decision Date: 20 February 1912
• Docket Number: No. 21,834.,21,834.
• Citation: 97 N.E. 534,177 Ind. 178
• Parties: STATE ex rel. SCHELLER v. THORNBURG.
• Court: Indiana Supreme Court

177 Ind. 178

97 N.E. 534

STATE ex rel. SCHELLER

v.THORNBURG.

No. 21,834.

Supreme Court of Indiana.

Feb. 20, 1912.

Appeal from Circuit Court, Jay County; Henry J. Paulus, Judge.

Quo warranto by the State on the relation of Charles F. Scheller, against William O. Thornburg. From an adverse judgment, relator appeals. Affirmed.Smith & Fleming and Jay A. Hindman, for appellant. Frank B. Jaqua and George T. Whitaker, for appellee.

MYERS, J.

Action in quo warranto to test the title to the office of city treasurer of the city of Dunkirk. Relator and appellee were candidates at the November 2, 1909, election for the office of city treasurer of the city of Dunkirk. Both were eligible. The canvassing board certified that relator had received 403 votes, and that appellee had received 402 votes. A recount was had, and the result was a certificate that appellee had received 401 votes and relator 400 votes, and appellee received possession of the office and papers, denied the right of possession in relator, and upon proper demand this action was brought. The complaint is in the usual form. Appellee answered in general denial and in four additional paragraphs. A demurrer was sustained to the second paragraph. The third paragraph alleges that relator received 400 legal votes and appellee 401 legal votes, and a majority of the legal votes. The fourth paragraph, while going into some detail of allegation, is grounded upon the allegation that the canvassing board committed a mistake in canvassing the returns, and that, if the returns and certificates are amended to show the facts, it would appear that each of the parties received 403 votes, but that appellee received a majority of the legal votes. The fifth paragraph admits that the returns and the certificate of the canvassing board gave the relator 403 votes, and appellee 402 votes, but that by mistake the election board in one ward failed to count one legal ballot cast for appellee, and in another ward counted one too many ballots for relator, and in casting up the totals, by error and mistake, it failed to count one ballot cast for appellee; that the election board in each of the three wards correctly determined all ballots that should or should not have been counted, and correctly decided all questions pertaining to marked, mutilated, or disputed ballots, and that appellee received a majority of all the votes cast for the office of treasurer at such election. Upon this state of the record, there was a request for a special finding of facts and conclusions of law. The finding of facts was that defendant received a majority of all the legal votes cast; that relator tendered and filed the requisite bond, and that it was approved, but was not acknowledged, by relator, or any one else who had signed the same; that appellee on January 3, 1910, took the oath of office as treasurer for the term of four years from 12 o'clock noon January 3, 1910. The conclusions of law were that relator take nothing, and that appellee recover his costs. Exceptions were reserved to the conclusions of law, and over a motion for a new trial judgment was rendered for appellee, and the errors assigned are as to the conclusions of law and overruling the motion for a new trial.

[1] No question is properly presented as to the alleged findings being conclusions, so as to warrant a reversal of the judgment, for the reason that there was no motion for a venire de novo, nor was the court's failure to make a special finding upon relator's motion assigned as cause for a new trial, nor is the alleged failure to make a special finding of facts upon relator's motion treated as overruling such motion assigned as cause for a new trial, or the question presented in any way, though a judgment might not be warranted in some cases, upon a finding of this character. So that the question presented arises upon the motion for a new trial, assigning as causes that the finding is not sustained by sufficient evidence, and is contrary to law, and in the admission of evidence; and, as the former causes depend for their solution in some degree upon the last, we will consider it first.

[2] Relator introduced in evidence the return and certificate of the Board of Election Commissioners, which shows 403 votes cast for relator and 402 for appellee. To overcome the prima facie case thus made, appellee read in evidence over objection of relator a record of proceedings in the Jay circuit court for a recount of the ballots as between relator and appellee upon proceedings instituted by the latter. Appellant's point is that, under then existing laws there could be no recount, for the reason that sections 61-65 of the act of 1881 (Acts 1881, pp. 497, 498) were repealed by sections 51, 52, and 57 of the act of 1889 (Acts 1889 pp. 180, 181, 182), and that the amended act of 1909 (Acts 1909, pp. 162, 163) did not revive the provisions for a recount. In 1881 by section 32 of the general election law (Acts 1881, p. 489) provision was made for stringing all ballots on a thread of twine. By section 35 the ballots with one of the list of voters and one of the tally papers were required to be carefully sealed up, and be delivered by the inspector to the clerk of the circuit court, and section 36 provided for their safekeeping. The board of canvassers were by section 37 et seq. required to canvass the returns and certify the results. Section 61 et seq. provided for a recount. The general subject of elections was covered by a new act in 1889 (Acts 1889, p. 157), with a general clause repealing all laws inconsistent therewith pro tanto. By section 52 of that act all ballots which were protested and all disputed ballots were required to be preserved, and all the remainder were required to be destroyed by totally consuming them by fire. In 1891 certain sections of the act of 1889, including section 52, were amended. Acts 1891, p. 133. In 1897 (Acts 1897, p. 49), a general act was passed, by section 7 of which provision is made for preserving all protested, disputed, and uncounted ballots, and all others were to be totally destroyed. By an act of 1901 (Acts 1901, p. 525) section 7 of the act of 1897 was amended to authorize watchers at the canvass of the vote. Thus the matter stood when the act of 1909 was passed (Acts 1909, p. 162). By this act section 7 of the act of 1897, as amended in 1901, was again amended, so as to provide for the preservation of all ballots voted, and not voted, together with all protested, disputed, or uncounted ballots, and proper indorsement by the poll clerks of the ballots “counted” and “not counted.”

What could have been the purpose of preserving protested, disputed, and uncounted ballots, if it was not to enable a re-examination of them to be made upon application for a recount or upon contest. It seems to us that the fact that such provision was made is a fair indication that it was for the purpose of their being reviewed, otherwise they might as well have been destroyed, as the others; and it has been held that to the extent that it was applicable to protested, disputed, and uncounted ballots the contest law was not repealed. Bechtel v. Albin (1892) 134 Ind. 193, 33 N. E. 967. The same reasoning is applicable to the statute with respect to a recount, and the language of the repealing act of 1889 seems to so imply. The policy of the election law subsequent to the act of 1881 and prior to 1909 was clearly to render the return of the election board and the canvassing boards conclusive except for fraud, and except as to the protested, disputed, and uncounted ballots, and prima facie evidence of the result of an election, and this has been the view of the courts. Hoy v. State ex rel., 168 Ind. 506, 81 N. E. 509, and cases cited; Hall v. Campbell, 161 Ind. 406, 68 N. E. 892;Weakley v. Wolf, 148 Ind. 406, 47 N. E. 466;State v. Waymire, 101 Ind. 36;Bolton v. Clark, 162 Ind. 471, 68 N. E. 283;People v. Board (Sup.) 19 N. Y. Supp. 206.

Appellee, however, contends that by the same reasoning, as to repeal urged by appellant sections 35 and 36 of the act of 1881 (sections 6954, 6955, Burns 1908), which is the only statute providing for the manner of the preservation of ballots, should be held to have been repealed, and hence there was no statute in force requiring preservation of the ballots. We think this position is untenable. The acts of 1889, 1891, 1897, 1901, and 1909 are to be construed in pari materia with the provisions of the act of 1881, so far as consistent with it, as to the questions of recount, contest, and custody, and preservation of the ballots and papers, which under the various acts are required to be delivered to the clerk of the circuit court as reasonably parts of one general system of laws upon the subject of elections. The act of 1897 (Acts 1897, p. 55) contained a repealing clause as to conflicting enactments. Neither Acts 1901, p. 525, nor the act of 1909 contained a repealing clause, though the title of the act of 1901 embraced the subject of repeal. The acts were both amendments only. The statute providing for a recount is still in force, so far as applicable, where the ballots have been preserved.

[3] An election is ultimately decided, not by the certificate of election, but by the ballots, and the eligible candidate receiving the highest number of legal votes is entitled to the office. State v. Waymire, supra.

[4] The question, then, is, Is the prima facie case made by the return and certificate of the canvassing board overcome by the evidence in the case? The board certified 400 votes for the appellee. The ballots voted and those disputed, protested, counted, and not counted, were preserved and delivered to the city clerk, who at the time was appellee. The package was placed in a vault, which was used jointly by appellee as city clerk and the city treasurer, each of whom had the combination to the vault and keys to the inside lock, and appellee since January 3, 1910, as treasurer,...