188 Ind. 222 | Ind. | 1919
— This is an appeal from a judgment in favor of appellee in a mandamus proceeding brought to compel appellants to recognize relator as the trustee ■from the second ward of the town of Oakland City, and to permit him to discharge the duties of that office to which he claims to be legally elected.
The material facts disclosed by the record show that Oakland City is a town in Gibson county having five wards and five town-trustees. On November 2, 1915, a general election for municipal purposes was held in Oakland City, at which' relator was a candidate for the office of town trustee from the second ward against Walter Turner and William Stewart. The election resulted in a tie vote between relator and Turner-, they having received a greater number of votes than Stewart. November 3, 1915, the vote of the two precincts into which the town was divided was canvassed by the election commissioners consisting of the town clerk, Cora Mahall, and Carl Powers and John J. Wallace. After canvassing the vote the result, showing the tie vote between relator and Turner, was certified to the town clerk, who
The facts stated are sufficient for an understanding of the questions involved. ■ The trial court overruled a demurrer addressed to the complaint by appellants, to which ruling an exception was reserved. On request the court found the facts specially and pronounced its conclusions of law thereon in favor of appellee. Exceptions were reserved to the conclusions of law. .The questions thus reserved are assigned as error.
The statutes on the subject are somewhat confused and conflicting, and their meaning is not altogether clear; but, after a consideration of the cases cited and an examination of the previous legislation on the subject the court is of the opinion that the provision for deciding a tie vote by the casting of lots embodied in §15, supra, of the act applies to all town elections. 1 R. S. 1852 p. 482; Acts 1873 p. 218, amending §§16, 17, Acts 1852, supra.
An examination of the act of 1852, supra; cited shows that the eleventh section provides for the holding of the first election of municipal officers after the incorporation of a town; §12 provides for subsequent elections of town officers to be held annually on the first
, When considered in connection with the other sections of the act to which reference is made, it is clear that the section quoted applied not only to the first election after the incorporation of a town, but to all subsequent elections as well. Under that act an entire new board of town trustees was elected each year; and, so long as . that condition continued unchanged, this court held that the entire sectiori, including the latter part with reference to the filing of the certificate of the inspectors with the county clerk, applied to all town elections. Dinwiddle v. Town of Rushville (1871), 37 Ind. 66; Pratt v. Luther (1873), 45 Ind. 250.
In 1881 an act was passed changing the terms for
The statutes to which reference has been made stood without substantial change until 1905. §§4327-4333 Burns 1901. Section 16 of the act of 1852, supra, has been carried forward in all subsequent legislation on the subject, and was embodied without'' substantial change as §15 of the act of 1905 concerning municipal corporations. Acts 1905 p. 219, supra. While other sections of the act of 1905 have been amended, §15 is still the law.
The trial court did not err in the construction placed on the statute. Appellants’ demurrer was properly overruled, and the conclusions of law announced by the court are correct. Judgment affirmed.
Note.- — Reported in 122 N. E. 769. Mandamus against public officers, 98 Am. St. 863.