193 Ind. 288 | Ind. | 1923
This is an appeal from an interlocutory order granting a temporary injunction, relative to the removal of the county seat of Jennings county.
July 3, 1916, Joseph D. Cone and others filed with the auditor of Jennings county a petition praying for an election on the question of relocating the county seat of said county at North Vernon. The auditor immediately on said day referred the petition to the board of commissioners, then in regular session, who forthwith took said petition under consideration, and ordered an election to be held on September 26, 1916. July 7, 1916, Crist and others sued for a temporary injunction to prevent the holding of such election, the application for which was denied, which’ denial, on appeal to the Supreme Court, was affirmed June 27, 1918, and on
Appellee’s complaint is in three paragraphs, the first of which proceeds upon the theory that the special election held July 22 is illegal and void and conferred no jurisdiction or authority upon the appellants, board of commissioners, the auditor and clerk of Jennings county, to proceed in the premises under authority of the returns of said election to relocate the county seat of Jennings county, for the reason, as alleged, that the order of said county commissioners setting the date for the special election was not made within the time provided by law; that the special election so ordered by the board of commissioners was not held within the time provided by law; and that, by the order of the board of commissioners appellant auditor of Jennings county, caused the ballots for said election to be printed, which ballots after being printed were delivered to said auditor; that a sufficient number of applicátions for absent voters’ ballots was not provided; and that appellant, clerk of the Jennings Circuit Court, furnished applications for the use of absent voters favoring relocation, but refused applications to applicants known to
The second and third paragraphs of complaint proceed upon the theory that, through a conspiracy of certain precinct election officers in the nighttime preceding the day of election, the election paraphernalia was removed from the regular polling place to another secret place, and early in the morning of the election day, persons favorable to relocation were called and appointed to the places of the duly appointed election officials who were opposed to relocation and before the hour provided for opening the polls, and that, upon the new location of such precinct being found by the election officials opposed to relocation, such officials demanded their positions as such prior to six o’clock a.m., the time for opening the polls, but were excluded from such election room, and that no notice had been given to the voters of the change of such voting place in such precincts and that thereby many voters in each of such precincts who were opposed to relocation were prevented from voting at such election; that illegal votes in favor of relocation were counted by several of the
The relief asked under the second and third paragraphs of complaint is that, upon the final hearing of this cause, the certificate of the result of the election be corrected and reformed to speak the truth, and that the defendant clerk of the Jennings Circuit Court, may be ordered and directed to make out and file with the defendant auditor of Jennings county a correct certificate of the result of said election; and praying for an injunction enjoining the auditor and the board of commission
For answer to the complaint, the defendants" filed their plea in abatement. Appellee moved to strike out the plea in abatement, for the reasons that it was filed after a full appearance to the action, and. that the matters and things alleged in the plea go to the right of the plaintiff in the action and are' not in abatement, and that the action is upon an application for a temporary injunction to which no answer of any kind is permitted under contemplation of the statute. The motion to strike out the plea in abatement was sustained by the trial court, and thereafter, the hearing for a temporary injunction was had upon the evidence, based upon the verified complaint on behalf of plaintiff, and an affidavit on behalf of defendants which was in the identical language of the plea in abatement, and other affidavits by members of the board of commissioners, clerk of the Jennings Circuit Court, members- of election boards, and others, in denial of the facts alleged in the complaint. The court thereupon found for the plaintiff and that he was entitled to a temporary injunction as prayed, which was followed by judgment granting a temporary injunction.
Appellant assigns as errors: (1) that the court erred in sustaining appellee’s motion to strike out the plea in abatement; (2) in granting the temporary injunction.
The plea in abatement, after alleging the date upon which said special election was held, the purpose thereof, and that it was held by virtue of the special act in question, quoted from that part of §9, Acts 1913 p. 906, of the act which relates to the canvass of the' vote, the certificate of the result thereof by the clerk to the auditor, and the filing thereof with the petition
It is to be noted that after the plea in abatement was stricken out, appellants filed the identical instrument as part of its evidence in defense of appellee’s prayer for temporary injunction. The court assumed jurisdiction of the subject-matter, which was all that it could have done by a finding adverse to appellants upon the plea in abatement, could it have been regularly tried. This plea did not affirm matter extrinsic to the complaint which could abate the action; 'it denied the complaint to bar the action. The ruling of the court sustaining the motion to strike out the plea in abatement was not erroneous.
The board of commissioners, by virtue of the proceeding instituted by the petition for the relocation of the county seat, had the inherent power to go behind the returns of the election, as made by the certificate of the clerk of the circuit court to the auditor of the county, and ascertain and purge the polls of all illegal ballots voted. The election could be carried or defeated only by legal ballots, and the commissioners had the right, either at a regular session or at the special session, upon the call of the auditor as provided in the act, either upon its own motion or the motion of any interested party properly qualified, to examine into and to determine the question of the legality of the votes. Board, etc., v. Branhan (1923), ante 195; Galvin v. Logan (1914), 182 Ind. 647; Strebin v. Lavengood (1904), 163 Ind. 478; Goddard v. Stockman, Treas. (1881), 74 Ind. 400.
Concerning the first paragraph of complaint, the board of commissioners has the right to try and determine the question of the legality of the preparation of the ballots alleged to have been used for such election, and also any matters alleged which
But appellee makes his first vigorous attack upon the special act itself as being in violation of the general laws relative to the relocation of county seats, as a regulation of county business, and thereby being in contravention of the provisions of Art. 4, §22 of the Constitution.
Against the contention that the special act under consideration is void because in conflict with Art. 4, §22, of the Constitution pertaining to the regulation of county and township business, it is deemed that the question is settled in this state that such is not the correct conclusion. Mode v. Beasley (1896), 148 Ind. 306. Furthermore, the question of this special act being in violation of Art. 4, §22, Constitution, as stated, has been before this court and decided contrary to the contention of appellee. Crist v. Molony, supra.
It is also maintained that the special law is void be-. cause in violation of Art. 4, §23, of the Constitution. Such contention is not without merit if held to a time prior to 1868, under the rule as laid down by this court in the case of Thomas v. Board of Commissioners (1854), 5 Ind. 4. Upon the authority of numerous decided cases from this court, and from the courts of other states which have constitutional limitations akin to the one here in question, the rule is firmly fixed that the question whether or not a general law can be made applicable, or that a special law is in violation of said section of the constitution because a general law can be made applicable, is necessarily one of legislative discretion, and not one of judicial determination. Mode
This question in relation to this special act has been before this court and decided contrary to the contention of appellee. Crist v. Molony, supra.
The court now adheres to its position and opinion upon the constitutional questions raised as rendered in "the case of Crist v. Molony, supra. All other questions in either of the three paragraphs of complaint can be tried and determined by the board of commissioners under a protest of the election held, from which determination and judgment rendered by the board of commissioners, appellee will have his right to appeal. There being no question properly before the trial court which might not be rightfully tried and determined before the board of commissioners in this special proceeding for the relocation of the county seat, the trial court is without authority to determine the irregularities as alleged concerning such special election, and therefore erred in granting the temporary injunction.
Judgment reversed, with instructions to dissolve the temporary injunction.