Weakley v. Wolf
| Decision Date | 10 June 1897 |
| Docket Number | 18,241 |
| Citation | 47 N.E. 466,148 Ind. 208 |
| Parties | Weakley v. Wolf |
| Court | Indiana Supreme Court |
From the Shelby Circuit Court.
Reversed.
T. B Adams, Isaac Carter, D. L. Wilson and W. A. Yarling, for appellant.
L. F Wilson, D. H. Thompson, A. F. Wray, T. H. Campbell, K. M Hord and E. K. Adams, for appellee.
At the regular election, held May 5, 1896, in the city of Shelbyville, as duly certified to by the board of canvassers of said election, at their meeting held May 6, 1896, it appears that 652 votes were cast and counted for the several candidates for councilmen of the fourth ward of said city, of which votes the appellant received 307, the appellee 305, and a third candidate 40; and thereupon the said board of canvassers declared the appellant duly elected to said office.
On the same day, in accordance with the provisions of section 6323, Burns' R. S. 1894 (4767, R. S. 1881), the appellee filed in the office of the clerk of the Shelby Circuit Court his complaint against the appellant for a contest of said election.
A change of venue being taken from the regular judge, the special judge below was appointed to try the cause. On hearing the evidence, the court found that eleven ballots with distinguishing marks had been counted for said candidates, of which defective ballots seven had been counted for the appellant, three for the appellee, and one for the third candidate. Deducting the defective ballots so cast and counted for the several candidates, the court found that the appellee had a plurality of two votes, and declared him elected.
The alleged defective ballots were all cast in the third precinct of the ward; and no other irregularity is charged to have occurred at the election.
In the third precinct the appellant received and had counted for him 123 votes, the appellee 116, and the third candidate 21; while two mutilated ballots were not counted for any one, but were sealed up and preserved as required by law. No question is made as to those two mutilated ballots. Of the eleven alleged defective ballots which were counted, none were protested, but all were placed with the other ballots which had been counted for the candidates, and, together with such ballots so counted, were destroyed, as provided by statute in case of ballots counted and undisputed and not protested.
Many errors are assigned on this appeal, but only that relating to the overruling of the motion for a new trial is discussed by counsel. At the outset, however, we are met with some contentions by appellee which must first be considered.
It is contended that we have no jurisdiction of this appeal, for the reason, as urged, that the statute above cited, and being the only one under which provision is made for contests for municipal offices, does not give the right of appeal from decisions of circuit courts in such contests.
Previous to 1881 there was no statute providing for contests for municipal offices; and the only mode of questioning the validity of the election of a city officer was by an information in the nature of a quo warranto. Gass v. State, 34 Ind. 425.
By the act of May 4, 1852, concerning election contests (1 R. S. 1852, p. 269; 1 Gavin & Hord, p. 316; 1 Davis, R. S. 1876, p. 448), provision was made for contests for county and township offices before the board of county commissioners, with the right of appeal to the circuit court, "as from other decisions of such board;" and by an act approved March 2, 1859 (Acts 1859, p. 35; 1 Gavin & Hord, p. 319; 1 Davis, R. S. 1876, p. 451), a further appeal was allowed in such cases to the Supreme Court, "as in other civil cases."
Those statutes were substantially re-enacted in the act concerning elections and the contests thereof, approved April 21, 1881, Acts 1881, p. 498, sections 6299-6324, Burns' R. S. 1894 (4743-4768, R. S. 1881); and there was added, in section 90 of said act, the provision for contesting municipal offices under which the action in the case at bar was brought. This section reads as follows:
It thus appears that contests for municipal offices are to be tried "in the manner provided by law for the contest of county and township offices." This section having been introduced into the act long in force for the contest of county and township offices, and it being expressly provided that the contest as to municipal offices should be tried in the same manner as in the case of county and township offices, it would seem to follow that all the incidents of the contest should be as near alike in both cases as might be. This would appear to include whatever relates to pleadings, notice, motions, change of venue, new trial, exceptions, appeal, and anything else that may be deemed necessary to secure a fair and impartial determination of the rights of the parties.
While the right of appeal to this court in municipal election contests does not seem to have been heretofore called in question or expressly passed upon, yet, in Gimbel v. Green, 134 Ind. 628, 33 N.E. 964, such an appeal was entertained by the court, jurisdiction assumed and the case decided.
Before the enactment of the statute under consideration, the right to hold a municipal office might, as we have seen, have been determined by quo warranto proceedings, and in such action there might have been an appeal taken to this court. In extending the remedy by contest to the determination of the right to hold such offices, it is not to be presumed that the legislature intended to lessen rather than enlarge the scope of the remedy that already existed. A statute will not, in general, be so interpreted, unless its words will admit of no other meaning, as to impair rights already existing. Bruce v. Schuyler, 4 Gilman 221, 46 Am. Dec. 447. Unless, therefore, it is expressly, or by necessary implication, provided in a statute that there shall be no right of appeal from a final judgment of the circuit court such right should be presumed to exist.
In section 4322, Burns' R. S. 1894 (3301, R. S. 1881), it is provided, among other things, that the final order of the board of county commissioners declaring that a town has been incorporated "shall be conclusive of such incorporation" in all courts and places in this state; and it was at first accordingly held in many cases that there could be no appeal from such an order. But in Grusenmeyer v. City of Logansport, 76 Ind. 549, those decisions were overruled, and it was held that, since, by section 7859, Burns' R. S. 1894 (5772, R. S. 1881), appeals from decisions of county boards generally are provided for, those two statutes should be read together, and that an appeal would therefore lie from an order of the board declaring that a town has been incorporated, inasmuch as the general act provides for the appeal and the special act does not, either "expressly or by necessary implication," deny such right of appeal; and this is still the rule.
There is in the statute under consideration no express denial of the right of appeal from the circuit court to this court, while the implication, instead of being against such right, is, as we have seen, strongly in its favor. But the general statute concerning appeals from the circuit court to this court, section 644, Burns' R. S. 1894 (632, R. S. 1881), provides that "Appeals may be taken from the circuit courts and superior courts to the Supreme Court, by either party, from all final judgments," except in certain actions originating before a justice of the peace. These two statutes should also be read together; and as the statute providing for municipal election contests does not, either "expressly or by necessary implication" deny the right of appeal from the final judgment of the circuit court in such a contest, it should be held also that, under the general statute, the appeal will lie.
It is also contended by appellee that no question arises in this case as to any matter requiring an examination of the evidence, for the reason that the bill of exceptions containing the evidence is not in the record. This contention is based upon the fact that it appears that the bill of exceptions and the longhand manuscript of the evidence were both filed in the clerk's office on the 21st day of April, 1897, but that it does not appear whether the longhand manuscript was so filed before it was incorporated in the bill. This objection would undoubtedly have been fatal to the validity of the bill of exceptions under the law as it formerly stood. Smith v. State, 145 Ind. 176, 42 N.E. 1019; Beatty v. Miller, 146 Ind. 231, 44 N.E. 8.
The record on this appeal, however, was filed in this court April 23, 1897; while on March 8, 1897, an act was approved which greatly simplifies the manner of bringing up the evidence on appeal. Acts 1897, p. 244. That act was in force from and after its passage, and was therefore the law upon the subject before the case at bar was filed or pending on appeal in this court.
The first section of the act, omitting the enacting clause, reads as follows: ...
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