State ex rel. Seal v. Superior Court of Knox County
| Decision Date | 30 January 1943 |
| Docket Number | 27817. |
| Citation | 46 N.E.2d 226,221 Ind. 36 |
| Parties | STATE ex rel. SEAL v. SUPERIOR COURT OF KNOX COUNTY et al. |
| Court | Indiana Supreme Court |
Barnes Hickam, Pantzer & Boyd, of Indianapolis, for petitioner.
This is an original action seeking a writ prohibiting the respondents from enforcing a restraining order issued in the Superior Court of Knox County. A temporary writ issued and responses have been filed.
The facts alleged in the petition are not denied. They are substantially as follows: The relator was the regular judge of the Knox Circuit Court. He was a candidate for reelection in November, 1942. The respondent, James Allen Jones, was his opponent. The election canvassing board certified the respondent Jones as having received a majority of the votes cast. The election was held on November 3rd. On November 16th the relator filed in the Knox Circuit Court his verified petition for a recount of the votes and tendered his bond as provided by statute. The respondent Jones was served with notice of the filing of the petition. The relator disqualified himself as judge and the parties agreed upon Hon. A. Dale Eby, regular Judge of the Gibson Circuit Court as special judge, and he qualified as such. The respondent Jones filed a motion to dismiss the petition for a recount upon the ground that no proceeding to contest the election had been filed and that therefore there was no authority for a recount. This motion was overruled. A recount was ordered and commissioners appointed and instructed in their duties and directed to commence the recount on December 8th. On December 19th, and prior to the report of the recount commissioners, the respondent Jones filed a complaint in the Superior Court of Knox County seeking an injunction, and the court granted and issued a restraining order without notice restraining the recount commission 'from making executing, signing and delivering to the Clerk of the Knox Circuit Court or to any other person a certificate, certification or any other paper or record showing that the defendant, Ralph A. Seal, * * * received a higher or greater number of votes for judge of said court at said election than James Allen Jones received.' It is noted that the commission was not enjoined from certifying that the respondent Jones had received a greater number of votes.
This action seeks a writ prohibiting the enforcement of the restraining order and further proceedings upon the ground that the Knox Superior Court is without jurisdiction in the premises.
Herman M. Robbins has made return showing that prior to service of the temporary writ he sustained a motion for a change of judge and relinquished jurisdiction of the cause, and that his term of office as judge of the Superior Court expired on December 31, 1942, and that he is no longer judge; that he granted the restraining order in good faith, believing his court had jurisdiction so to do; that he has no jurisdiction to function further in said cause.
Sidney Gelb has filed a response showing that he took office as judge of the Superior Court of Knox County on January 1, 1943; that he has no intention of his own volition as such judge of undertaking to punish any one for contempt for violating the restraining order, since, in his judgment, any violation would be an indirect contempt; that at the time a change of venue was taken from Herman M. Robbins as judge, objection was made to his nominating a special judge; and that these facts have been certified to the Clerk of the Supreme Court in order that a special judge may be nominated.
The respondent Jones in his response does not deny the material facts. He asserts that the Superior Court had jurisdiction to issue the restraining order (1) because Chapter 122 of the Acts of 1941 is unconstitutional; (2) because the relator was not entitled to have a recount and a recount commission appointed in the proceedings in the circuit court because he had not filed a proceeding to contest the election; and (3) that the restraining order does not interfere with the jurisdiction of the circuit court because that court is only empowered to appoint a commission, and not to supervise or control the commission's action after appointment.
The recount statute, Chapter 122 of the Acts of 1941, page 340 (§§ 29-2121 et seq., Burns' 1933 [1942 Supp.], §§ 7407-1 et seq., Baldwin's 1934 [1941 Supp.]), provides that any candidate desiring a recount may file a petition in the circuit or superior court of the county, or before the judge thereof in vacation, specifying certain facts; that after notice to the opposing candidate and the furnishing of bond, the court or judge shall order the recount of the votes and appoint a commission 'to make the recount or recounts ordered,' and that the court shall by order impound the ballots and make them available for counting; that the commission shall recount the votes, and when the recount is completed shall make, sign, and file a certificate showing the result of its recount; that the certificate shall be filed with the clerk of the court ordering the recount, who shall enter it in the order book of that court; that such recount certificate shall supersede for all purposes all previous returns of the votes recounted, and shall be prima facie evidence of the votes cast for such office 'in any contest or other proceeding in which there is an issue as to the votes cast at such election.'
The recount was the relief sought by the relator's petition to the Knox Circuit Court. It must be presumed that before ordering the...
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