Tombaugh v. Grogg
| Decision Date | 15 October 1896 |
| Docket Number | 17,725 |
| Citation | 44 N.E. 994,146 Ind. 99 |
| Parties | Tombaugh v. Grogg |
| Court | Indiana Supreme Court |
From the Miami Circuit Court.
Reversed.
Loveland & Loveland and N. N. Antrim, for appellant.
F. D Butler and C. A. Cole, for appellee.
Appellant and appellee were opposing candidates for the office of township trustee at the November election, 1894, and appellee was declared elected to said office. At the proper time appellant filed a statement of the grounds of contest with the county auditor, as required by section 6314, Burns' R. S. 1894 (4758, R. S. 1881). And on November 20 the auditor issued a notice to the board of commissioners, naming Samuel King, Ezekial V. Robbins, and James W. Knox, as the members thereof to meet on November 30, at the courthouse, to hear and determine the case of the appellant v. this appellee, as well as four other contested election cases. This notice was served by the sheriff on the persons named therein on said day. The auditor also issued the proper notice to appellee which was served on him. The board of commissioners did not meet on the 30th of November, the date fixed by the auditor.
On December 3, 1894, the board of commissioners, Lewis Bond, Daniel King and David Stitt, met in regular session, and on December 6, the fourth day of said regular term, by order of the board, a nunc pro tunc entry was made, setting forth the foregoing facts and also other matters, showing why said board did not meet on November 30 to try said election contests. From this entry it appears that Jesse W. Knox was not a member of the board of commissioners when said notice was issued, nor when the same was served on him, but David Stitt was, from and after November 16, 1894, the commissioner from the first district, having succeeded said Knox on said day, as was adjudged by the Miami Circuit Court. That on November 26, 1894, a writ of mandate and prohibition was, by order of the Miami Circuit Court, duly issued, commanding said Robbins not to act with said Knox or recognize him as a member of the board of commissioners, and that he only act in conjunction with said King and one Stitt, and that said Knox be prohibited from acting as a member of said board or interfering then with the business thereof, until the further order of the court, which order and writ were made perpetual on December 3, 1894. That Daniel King, one of the commissioners named in said notice, was sick when the same was served on him, and was unable to attend the meeting of the board on November 30, 1894, and said David Stitt had not been notified of said meeting and was not then present to participate in the proceedings of said board, and there was no meeting on said day as no quorum was then present; that on said 30th day of November, at the time set for the hearing of said contest, appellee and his attorney acknowledged service of said notice of contest and entered his appearance thereto. At the time said entry was ordered by said board and the same was made, appellee was present and entered a special appearance and filed written objections to said entry, upon the ground that the board had no jurisdiction. Appellee, in compliance with the order of the board, filed his answer on December 7, and on the same day appellant filed a reply. Afterwards, on December 11, appellee filed objections in writing to the jurisdiction of the board of the subject-matter of the action. These objections were overruled by the board, and the trial was commenced and proceeded from day to day until December 13, when appellee objected to the board hearing further evidence in said cause for the reason that the regular term expired the day before, December 12, and the board had not been called in special session by the auditor. The objection was overruled, and the board proceeded with the trial from day to day until December 15, when final judgment was rendered in favor of appellant, from which appellee appealed to the court below, where he filed a motion to vacate the judgment of the board and dismiss the proceeding for the following reasons:
which motion was sustained by the court and said cause dismissed, to which appellant excepted at the time.
The errors assigned call in question the action of the court below in sustaining said motion.
It will be observed that the only question presented is whether the board of commissioners had jurisdiction over the subject of the action.
It is a general rule that statutes providing for contesting elections should be liberally construed in order that the will of the people in the choice of public officers may not be defeated by any merely formal or technical objections. Hadley v. Gutridge, 58 Ind. 302. This rule of construction is to be kept in view in the determination of the question presented by the appeal.
It is shown by the record that appellant complied with all the requirements of the statute, and was entitled to have his action against appellee tried. The cause of the failure of the board to meet at the time fixed by the auditor is fully shown, but whatever the cause may have been, it is evident that appellant was not responsible therefor.
The notice to the board was served on King and Robbins, who were then members of the board, and on Knox, who had been a member, and was claiming to hold until December 3, the first day of the December term of the board. He was a de facto member of the board when served...
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