State ex rel. Thompson v. Wheaton
| Decision Date | 27 March 1923 |
| Docket Number | 24240.,Nos. 24239,s. 24239 |
| Citation | 193 Ind. 30,138 N.E. 820 |
| Parties | STATE ex rel. THOMPSON et al. v. WHEATON et al., Board of Election Com'rs. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Porter County; Harry L. Crumpacker, Judge.
Separate suits by the State, on the relation of Robert G. Thompson and another, resident voters and taxpayers of townships in Lake County, against Herbert L. Wheaton and others, as the Board of Election Commissioners, to compel defendants to place the names of the designated persons on the official ballot as candidates in the respective townships for the office of Justice of the Peace. From judgments sustaining demurrers to the complaints, plaintiffs appeal. Appeals dismissed.
Wm. J. Whinery, of Hammond, and George P. Rose, of Gary, for appellants.
Joseph E. Brown, William H. Matthew, of Gary, and Bomberger, Peters & Morthland, of Hammond, for appellees.
The state of Indiana on relation of a resident voter and taxpayer of North township, in Lake county, Ind., brought an action against the appellees, as constituting the county board of election commissioners, to compel them by mandamus to place the names of six designated persons upon the official ballot to be voted in said township at the election held November 7, 1922, as candidates for the office of justice of the peace of that township. A like suit was also brought on the relation of a resident voter and taxpayer of Calumet township against the members of said board to compel them, by mandamus, to place the names of four designated persons on the official ballot as candidates in that township. A demurrer for want of facts to constitute a cause of action was sustained to the complaint in each case, and judgment was entered thereon against the plaintiff for costs.
Each plaintiff excepted to the ruling against him, and perfected an appeal. The two appeals were argued together, and as the questions for decision in both are the same, they will be disposed of by one opinion. The city of Hammond is in North township, and the city of Gary is in Calumet township.
Each of these is a city of the second class, as shown by the last census (Acts 1915, c. 65, p. 126, Burns' Supp. 1921, § 8643c), but neither of them is the county seat of government; that being at Crown Point. There were also two other cities and two incorporated towns in North township, and one incorporated town in Calumet township. The Constitution of Indiana provides that “a competent number of justices of the peace shall be elected by the voters in each township,” who “shall continue in office four years,” and whose “powers and duties shall be prescribed by law.” Const. art. 7, § 14; Burns' 1914, § 174.
Statutes have been in force for many years providing that-
“The number of justices of the peace in each township shall be regulated by the board of county commissioners of the county, by proper order of record.” Section 1700, Burns' 1914; section 1418, R. S. 1881.
But the number shall not exceed two for each township, with one additional for each incorporated town and each incorporated city in the township, not exceeding five in any township containing a city of 100,000 inhabitants. Section 1700, Burns' 1914; Acts 1913, c. 308, p. 834.
However, no statute ever undertook to declare what was the least number at which the justices of the peace in any township might be fixed by an order of the board of commissioners, and the only limitation on the power of the board to reduce the number was the constitutional provision that a “competent number” shall be elected in each township, until the passage of the act hereinafter set out.
In 1921 an act was passed by the Legislature and approved by the Governor, which provides as follows:
Acts 1921, c. 57, p. 136; Burns' Supp. 1921, § 1700a.
At the primary election, on May 2, 1922, the board of election commissioners of Lake county (the appellees) prepared ballots for North township and for Calumet township, respectively, which contained the names of certain persons seeking nomination for the office of justice of the peace, with the direction to the voters to “vote for one only.” One candidate in each township received more votes than his rivals, and the appellees, as such board, planned to print on the official ballot for each township only the name of the one candidate who received the highest number of votes at the primary. Only four persons were candidates for the nomination in North township, each of whom received some votes at the primary, and out of sixteen candidates in Calumet township six received more votes than their competitors. But demands upon appellees, as such board, by the relator who is a voter and taxpayer of North township, that they print four names on the ballot to be voted at the November election in that township, and by the relator in the other suit that they print six names on the ballot for Calumet township, were refused.
[1][2][3] The complaint in each case proceeded on the theory that the act of 1921 (chapter 57, p. 136) above set out is unconstitutional. Each alleged all of the facts stated above, except those which are known to the courts without being pleaded. The courts have judicial knowledge of the laws and the census without direct allegations as to those matters. State ex rel. v. Wheeler, 172 Ind. 578, 582, 89 N. E. 1, 19 Ann. Cas. 834;City of Huntington v. Cast, 149 Ind. 255, 258, 48 N. E. 1025; Section 383, Burns' 1914; section 374, R. S. 1881; Ewbank, Manual (2d Ed.) § 123, pp. 260, 264. But they cannot have judicial knowledge of any action of the board of commissioners of Lake county fixing the number of justices of the peace in North township or Calumet township, nor whether it ever took any...
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