State ex rel. Schellert v. Thornburg
| Decision Date | 20 February 1912 |
| Docket Number | 21,834 |
| Citation | 97 N.E. 534,177 Ind. 178 |
| Parties | State of Indiana, ex rel. Schellert, v. Thornburg |
| Court | Indiana Supreme Court |
From Jay Circuit Court; H. J. Paulus, Special Judge.
Action by the State of Indiana on the relation of Charles F Schellert against William O. Thornburg. From a judgment for defendant, the relator appeals.
Affirmed.
Smith & Fleming and Jay A. Hindman, for appellant.
Frank B. Jaqua and George T. Whitaker, for appellee.
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, is grounded on 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 mistake 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 be counted, and correctly decided all questions pertaining to marked, mutilated or disputed ballots, and that appellee received a majority of the votes cast for the office of treasurer at such election.
On 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 fled the requisite bond and that it was approved, but was not acknowledged by relator, or any one else who had signed it; 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 the overruling of the motion for a new trial.
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 failure of the court to make a special finding on relator's motion assigned as cause for a new trial, nor is the alleged failure to make a special finding of facts on 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 on a finding of this character. So that the question presented arises on the motion for a new trial, assigning as causes therefor that the finding is not sustained by sufficient evidence, and is contrary to law and error 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.
Relator introduced in evidence the return and certificate of the board of election commissioners, which shows 403 votes cast for relator and 402 votes cast for appellee. To overcome the prima facie case thus made, appellee read in evidence, over the 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 §§ 61-65 of the general election act of 1881 (Acts 1881 [s. s.] p. 482, §§ 4738-4742 R. S. 1881), were repealed by §§ 51, 52, 57 of the act of 1889 (Acts 1889 p. 157, §§ 51, 57 now appearing as §§ 6933, 6939 Burns 1908, and § 52 having been superseded by Acts 1897 p. 49, § 7, Acts 1901 p. 525, § 6934 Burns 1908), and that the amended act of 1909 (Acts 1909 p. 162) did not revive the provisions for a recount. By § 32 of said act of 1881 (§ 4710 R. S. 1881), provision was made for stringing all ballots on a thread of twine. By § 35 (§ 4713 R. S. 1881) the ballots, with one of the lists of voters and one of the tally papers, were required to be carefully sealed, and to be delivered by the inspector to the clerk of the circuit court, and § 36 (§ 4714 R. S. 1881) provided for their safekeeping. The board of canvassers was by § 37 (§ 4715 R. S. 1881) required to canvass the returns and to certify the results. Section 61 (§ 4738 R. S. 1881) 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, pro tanto, all laws inconsistent therewith.
By § 52 of said act of 1889 all ballots which were protested, and all disputed ballots were required to be preserved, and the remainder were required to be destroyed by totally consuming them by fire. In 1891 certain sections of the act of 1889, including § 52, were amended (Acts 1891 p. 124). In 1897 (Acts 1897 p. 49) a general act was passed, by § 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, § 6934 Burns 1908) § 7 of the act of 1897 was amended so as to authorize watchers at the canvass of the vote. Thus the matter stood when the act of 1909 was passed (Acts 1909 p. 162), which amended § 7 of the act of 1897, supra, as amended in 1901, supra, 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 reexamination of them to be made on 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 with 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 (1893), 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, supra, seems so to 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. (1907), 168 Ind. 506, 81 N.E. 509, and cases cited; Hall v. Campbell (1903), 161 Ind. 406, 68 N.E. 892; Weakley v. Wolf (1897), 148 Ind. 208, 47 N.E. 466; State, ex rel., v. Shay (1885), 101 Ind. 36; Bolton v. Clark (1904), 162 Ind. 471, 68 N.E. 283; People, ex rel., v. Board, etc. (1892), 19 N.Y.S. 206.
Appellee, however, contends that by the same reasoning, as to repeal urged by appellant §§ 35, 36 of the acts of 1881 (Acts 1881 [s. s.] p. 482, §§ 6954, 6955 Burns 1908, §§ 4713, 4714 R. S. 1881), which is the only statute providing for the manner of preserving the ballots, should be held to have been repealed, and hence there was no statute in force requiring that the ballots be preserved. We think this position is untenable.
The acts of 1889, 1891, 1897, 1901 and 1909, supra, 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 the 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 on the subject of elections.
The act of 1897, supra, contained a repealing clause as to conflicting enactments. Neither the act of 1901 (Acts 1901 p. 525), nor the act of 1909 (Acts 1909 p. 162), contained a repealing clause, though the title of the act of 1901, supra, embraced the subject of repeal; the acts were amendments only.
The statute providing for a recount is still in force, so far as applicable, where the ballots have been preserved.
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, ex rel., v. Shay, supra.
The question then is, Is the ...
To continue reading
Request your trial