State ex rel. Waymire v. Shay

• Decision Date: 24 February 1885
• Docket Number: 11,942
• Citation: 101 Ind. 36
• Parties: The State, ex rel. Waymire, v. Shay
• Court: Indiana Supreme Court

101 Ind. 36

The State, ex rel. Waymire, v. Shay

No. 11,942

Supreme Court of Indiana

February 24, 1885

From the Madison Circuit Court.

Judgment affirmed.

M. S Robinson and J. W. Lovett, for appellant.

H. D Thompson and T. B. Orr, for appellee.

OPINION

Elliott J.

The relator filed an information in the nature of a quo warranto, claiming a right to the office of township trustee of Duck Creek township, Madison county. It was alleged in his petition, or information, that he had been duly elected, was eligible, and had received the certificate of election and had qualified by giving bond and taking the oath of office. The first paragraph of the appellee's answer is the general denial, and the second is a special paragraph, alleging that the relator and the appellee were the only candidates for the office in controversy, that the latter was eligible to the office, that he received one hundred and seven of the votes cast at the election, and that the relator received one hundred and six; that by mistake of the election officers one hundred and fourteen of the votes were counted for the relator and only ninety-eight were counted for the appellee; that the appellee instituted proceedings under the statute to have the votes again counted; that notice was given, and by agreement Thomas J. McMahan, John W. Pence and DeWitt C. Chipman were appointed commissioners to recount the ballots; that they did recount them and did ascertain that a mistake was made in the first count, and that the appellee, and not the relator, had received the highest number of votes cast at the election.

We regard this answer as sufficient. If the appellee did actually receive the highest number of votes cast, he, and not the relator, was entitled to the office. The certificate of the election officers was not conclusive evidence of the relator's election, but was only prima facie evidence of that fact. American Law of Election, sections 219 and 221. An election is ultimately decided, not by the certificate of election, but by the ballots, and the eligible candidate who received the highest number is entitled to the office. Dobyns v. Weadon, 50 Ind. 298; Hadley v. Gutridge, 58 Ind. 302; Reynolds v. State, ex rel., 61 Ind. 392.

As the certificate of the election officers conferred only a prima facie right to the office, the appellee was entitled to overthrow it by showing that it had been ascertained, in the method prescribed by law, that the certificate was founded upon an unsubstantial basis, and that the appellee, and not the relator, had received the highest number of votes. The "recount" made under the provisions of the statute, and the certificate issued by the commissioners, disclosed the fact that the certificate did not entitle the relator to the office claimed, and the only way in which the question could be authoritatively settled was by a judicial investigation.

The appellee had a right to vindicate his title to the office by showing that he did in fact receive the highest number of votes cast. A defendant in such a proceeding as this may, by answer, assert his claim to the office which the relator seeks to secure. Elam v. State, ex rel., 75 Ind. 518. The appellee was not bound to confine the controversy to the single question of the force and effect of the certificate of the election officers, but had a right to go into the merits of the controversy, and have the question of the title to the office finally settled. The filing of the information was a challenge to the appellee to show his right to the office, and it devolved upon him to meet the claim of the relator by all such defences as he possessed. It may well be doubted whether if the appellee had omitted to set forth his title to the office he would not have been concluded from ever afterwards asserting it. It was, at all events, proper to settle the entire controversy in one action.

The appellee was not obliged to resort to the statutory method of contesting the relator's title to the office, but had a right to defeat the relator by showing that he was not elected to the office. It has often been held that it is proper to try title to an office by quo warranto, even where a statutory method is prescribed. State, ex rel., v. Gallagher, 81 Ind. 558; State, ex rel., v. Adams, 65 Ind. 393; Reynolds v. State, ex rel., 61 Ind. 392; Barkwell v. State, ex rel., 4 Ind. 179; Huddleston v. Pearson, 6 Ind. 337. If it be true that the appellee might have commenced proceedings by an information to settle his right to the office, then, surely, it must be true that when an information is filed against him assailing his title, he may defend by showing the grounds upon which his title rests. Whatever form the contest may assume, the pivotal question is, Who received the highest number of votes? and of this fact the original ballots cast by the voters is the best evidence. Reynolds v. State, ex rel., supra.

It was proper to produce on the trial the original ballots, and if it appeared from them that the appellee was legally chosen it was the duty of the court to award him the office. The statute does not contemplate a trial of the force and effect of the certificate merely, but contemplates a trial of the general question, Who is legally entitled to the office? for it provides "that judgment shall be rendered upon the rights of the parties." R. S. 1881, sec. 1136. A judgment upon the rights of the parties can not be...