177 Ind. 607 | Ind. | 1912
This action was instituted by appellant under §6995 Burns 1908, §4743 R. S. 1881, before tbe Board of Commissioners of Jackson County to contest tbe election of appellee to the office of sheriff of that county. Tbe two parties were rival candidates for that office. Upon issues
Section 6995, supra, reads as follows: “The election of any person declared elected by popular vote to any office, whether state, county, township or municipal, may be contested by any elector who was entitled to vote for such person. The person contesting such election shall be known as the eontestor; the person whose election is contested, as the contestee.”
Section 7008 Burns 1908, §4756 R. S. 1881, states the causes on which any such contest may be waged, as follows: “First. For irregularity or malconduct of any member or officer of the proper board of judges or canvassers. Second. "When the contestee was ineligible. Third. "When the contestee, previous to such election, shall have been convicted of an infamous crime, such conviction not having been reversed nor such person pardoned at the time of such election. Fourth. On account of illegal votes.”
Appellant’s amended complaint, under five specifications, attempted to state facts establishing grounds for contest under the first, second and fourth causes. Specifications four and five, relating to the second statutory cause, were stricken out on appellee’s motion, and appellant makes no complaint of that action. Omitting specifications four and five, the complaint is as follows: ‘ ‘ The eontestor complains of said contestee and says: That on the 8th day of November, 1910, that there was a general election held throughout the State of Indiana, for the purpose of electing State, County and Township officers: That at said election in said Jackson County, Indiana, this eontestor and said contestee were candidates in said county of Jackson for the office of sheriff of said county; that this eontestor and said contestee were the
The allegations with respect to each of the other thirty-three precincts in the county are in terms the same as the one just quoted, except as to number of votes counted for each of the candidates in the various precincts. The complaint contains these further allegations: “Specification 3. Contestor alleges that in each and all of the thirty-four precincts in Jackson County, Indiana, illegal votes were cast and counted for the contestee for said office; that contestor cannot give the number of illegal votes cast and counted for contestee in any of said precincts because all the votes cast and counted are now preserved according to law, and are in the custody of the officer entitled to have charge of them, and contestor does not have access to them and cannot examine said ballots; that if illegal votes had not have been cast and counted for contestee in each of said precincts of Jackson County, the total vote cast in all of said precincts would have shown that contestor received the highest number of legal votes cast for said office at the said election. Wherefore, contestor prays that each and all of the ballots cast and voted for the candidates for the office of sheriff of said' county at said election in all of said precincts in Jackson County, Indiana, as preserved, filed with and now held by the Clerk of the Jackson Circuit Court, be re-counted and canvassed, and the correct vote received by the respective candidates for said office be ascertained and established, and that contestor be held and declared to be the duly elected sheriff of said county, and for all other proper relief.” Appellee’s demurrer to the complaint was for want of jurisdiction over the subject-matter of the action, and for want of facts alleged to constitute a cause of action.
It is first contended on the part of appellee that the ob
But none of these laws repealed the preexisting laws enacted in 1881 (Acts 1881 [s. s,] p. 482, §§4738-4768 R. S. 1881) providing for a contest of an election, or for a recount of the ballots. To the extent that ballots were destroyed in compliance with the law, the contest and recount statutes could not operate on or review them with a view of determining the correctness of the count, and the rights of contest and recount were narrowed and limited in their scope, so far as the ballots were concerned, to an examination of those preserved only. Bechtel v. Albin (1893), 134 Ind. 193, 33 N. E. 967; Hall v. Campbell (1903), 161 Ind. 406, 68 N. E. 892; State, ex rel., v. Thornburg, supra.
Before the enactment of the election law of 1889 (Acts 1889 p. 157) the preservation of the ballots was required,
"While the complaint in question is in a sense general in its averments of irregularity and malconduct of the election officers in the counting of the ballots in each precinct, it does make allegations of facts in relation thereto, which, if shown by the ballots themselves, would change the declared result and give appellant a majority of the legal votes cast, and this brings it within the purview of the first cause of contest, and in reality within the rule declared in the ease cited. It fairly advised the appellee of the cause of contest, and that an examination of the ballots would be required to determine it. A rule often quoted in disposing of objections to pleadings in election cases is stated in the case of Mann v. Cassidy (1857), 1 Brews. (Pa.) 11, 26, as follows: “It is obvious that if the court were to require the same precision and certainty in an election petition as in the pleadings between parties to a suit at law, the object of which pleadings is to produce a single issue, the difficulty of stating precisely the manner in which a fraud has been perpetrated or an undue return made, would, to a great degree, nullify the law itself, which designs that such charges should be investigated. The rule must not be held so strict as to afford protection to fraud, by which the will of the people is set at naught; nor so loose as to permit the acts of sworn officers, chosen by the people, to be inquired into without an adequate and well defined cause.”
In the case of Kreitz v. Behrensmeyer (1888), 125 Ill. 141, 17 N. E. 232, 8 Am. St. 349, at page 172, the court said: “More particularity in pleading is not required than the nature of the subject is reasonably susceptible of, and it is obvious, in the very nature of things, that in most instances the candidate defeated by a miscount cannot know whose
7. The fact that the contest statute provides a quick and easy method of determining a controversy in which not only the candidates for the office but the public are concerned, and requires its submission to an inferior tri-' bunal not familiar with the technical procedure of ordinary civil actions, taken in connection with the very nature of the proceeding, implies that the most rigid strictness in pleading is not to be required in the statement of the grounds of contest. That the complaint or statement of cause of contest was sufficient to withstand a demurrer, is sustained by the following cases: Nickols v. Ragsdale (1867), 28 Ind. 131; Dobyns v. Weadon, supra; Hadley v. Gutridge, supra; Hall v. Campbell, supra; Leonard v. Woolford, supra; Muir v. Beauchamp (1900), 91 Md. 650, 47 Atl. 821; Lawrence v. Wheeler (1908), 77 Kan. 209, 93 Pac. 602; Minor v Kidder (1872), 43 Cal. 229; Election Cases (1870), 65 Pa. St. 20, 36; Kilburn v. Patterson (1887), 98 N. C. 593, 3 S. E. 491. See, also, 7 Ency. Pl. and Pr. 384; 15 Cyc. 404.
The cause is reversed, with instructions to the lower court
Note.—Reported in 98 N. E. 724. See, also, under (1 and 2) 15 Cye. 429; (3 and 5) 15 Cyc. 404, 429; (4) 31 Cye. 110. As to what irregularities will avoid elections, see 90 Am. St. 45. As to the effect of an election where the majority vote was for an ineligible candidate, see 124 Am. St. 211.