101 Ind. 36 | Ind. | 1885
The relator filed an information Id the nature of a quo warranto, claiming a right to the office of township trustee of Duck Creek township, Madison county. It was alleged in his petition, or information, that he had been duly elected, was eligible, and had received the certificate of election and had qualified by giving bond and taking the oath of office. The first paragraph of the appellee’s answer is the general denial, and the second is a special paragraph, alleging
We regard this answer as sufficient. If the appellee did actually receive the highest number of voes cast, he, and not the relator, was entitled to the office. The certificate of the election officers was not conclusive evidence of the relator’s election, but was only prima facie evidence of that fact. American Law of Election, sections 219 and 221. An election is ultimately decided, not by the certificate of election, but by the ballots, and the eligible candidate who received the highest number is entitled to the office. Dobyns v. Weadon, 50 Ind. 298; Hadley v. Gutridge, 58 Ind. 302; Reynolds v. State, ex rel., 61 Ind. 392.
As the certificate of the election officers conferred only a prima facie right to the office, the appellee was entitled to overthrow it by showing that it had been ascertained, in the method prescribed by law, that the certificate was founded upon an unsubstantial basis, and that the appellee, and not the relator, had received the highest number of votes. The “ recount” made under the provisions of the statute, and the certificate issued by the commissioners, disclosed the fact that the certificate did not entitle the relator to the office claimed, and the only way in which the question could be authoritatively settled was by a judicial investigation.
The appellee was not obliged to resort to the statutory ■method of contesting the relator’s title to the office, but had ••a right to defeat the relator by showing that he was not elected to the office. It has often been held that it is proper to try /title to an office by quo warranto, even where a statutory ■method is prescribed. State, ex rel., v. Gallagher, 81 Ind. 558; State, ex rel., v. Adams, 65 Ind. 393; Reynolds v. State, ex rel., 61 Ind. 392; Barkwell v. State, ex rel., 4 Ind. 179; Huddleston v. Pearson, 6 Ind. 337. If it be true that the appellee might .‘have commenced proceedings by an information to settle his right to the office, then, surely, it must be true that when an ■information is filed against him assailing his title, he may defend by showing the grounds upon which his title rests. Whatever form the contest may assume, the pivotal question is, Who received the highest number of votes? and of this ■.fact the original ballots cast by the voters is the best evidence. Reynolds v. State, ex rel., supra.
It was proper to produce on the trial the original ballots, ¡and if it appeared from them that the appellee was legally •.chosen, it was the duty of the court to award him the office.
There was no error in permitting Andrew J. Behymer, the inspector of the election, to testify that he placed the ballots ■and election papers in a bag, sealed it and delivered it to the clerk. It was his duty to do this, and it was competent to prove that he had performed this duty. Nor was there any •error in permitting him to identify the bag and papers. It was unquestionably competent to permit the clerk, or his deputy, to testify as to when and from whom they received the bag, and to identify it as the one delivered to them by the inspector.
The fact that the bag had been opened, and the ballots counted by the commissioners appointed by the court, did not render the ballots incompetent evidence. It can not be presumed that these officers, or any others, acted illegally or corruptly. It is a familiar rule that officers are presumed to have faithfully performed their duty, and that the presumption is against bad faith and dishonesty. It was incumbent upon the relator to show some facts impeaching the acts of the officers in order to entitle him to insist upon a rejection of the ballots, and here nothing of the kind was shown.
Entries or papers written by public officers in the course •of the performance of official acts are competent evidence. It was the duty of the inspector of the election to make an •endorsement upon the bag containing the ballots and election papers, and it was competent, under the rule just stated, to read this endorsement in evidence. Upon the same principle it was competent to read in evidence the affidavit of the inspector made in accordance with the provisions of the statute.
There was no error in permitting the bond executed by-Patrick Shay, the appellee, to be read in evidence; it tended to show that he had qualified according to law, and to prove that he had not abandoned the office.
"We perceive no valid objection to the ruling permitting the entry of the order directing a “ re-count ” to be made. The order was one which the statute authorized the court to make,, and tended to show that the persons who recounted the ballots had legal authority to examine them. It also tended to-show that the bag containing them was opened by persons-duly authorized, and to rebut the inference, which might otherwise have arisen, that they were improperly examined after they had' been sealed up and delivered to the clerk.
The court permitted the certificate of the commissioners, appointed by the court to make the “ re-count ” to be introduced, and this ruling is attacked upon the ground that such a certificate is only evidence in case contest is made under the statute. We can not adopt the construction of the statute for which the relator contends. The certificate may be used in a contest \mder the statute, but there are no limiting- or restraining words, and we think that, as it is an instrument made in accordance with law by persons duly authorized, it is competent evidence in any legal contest between the parties, no matter what form the contest may assume. The leading purpose of the statute is to enable a candidate to ascertain, by a “ re-count ” of the ballots, whether or not the election officers did their duty and correctly counted the ballots. When a “ re-count ” is made, it is the duty of the commissioners to make a certificate showing the result of their examination, and the certificate is, therefore, an official document exhibiting the result of their examination. It seems clear that, as they had authority to make the examination, and as they were-charged with the duty of issuing the certificate, it must be evidence in any legal contest for possession of the office. The-
We think that the finding of the court is well supported by the evidence.
Judgment affirmed.