*1 Relation of Thomas J. on the Wheeler of Indiana Wesley Shelby Jr., Raliff, Court, Honorable W. Circuit Judge Shelby Special Circuit Court. May 6, 1977.] Filed 1276S447.

[No. VJheeler, Indianapolis, Lieber, Ronald James K. S. Smith, Connersville, Indianapolis, Himelick, Himelick & for relator. Evans, counsel, Evans, Bose, McKinney M. &

William Indianapolis, respondent. us, the case before J. In

DeBruler, granted petition court of Sheaffer to votes cast Fayette County for the office of Senator for District carry appointed recount. a recount commission to out the Wheeler, apparent winner of the election for that Relator unsuccessfully sought Sheaffer, dismis- opponent office entry petition prior in the trial court of sal granted order, petition we and thereafter his writ of mandate. prohibition and alternative writ jurisdiction to the trial court had no Eelator contends that *2 to appoint a commission the recount and to recount order which the was the recount it, office for effectuate because one, relying upon legislative this Court’s requested awas Pike Beaman v. Court opinions in ex rel. Circuit of 190, 671; County, (1951) and ex rel. 229 Ind. N.E.2d 96 126, Reeves, (1951) Re v. 229 Ind. 838. Acker 95 N.E.2d jurisdiction contends was spondent the hand that on other statute, upon it to the recount make these orders conferred being (Burns 1972), Ind. 3-1-27-1 to which Code 3-1-27-17 § § any any which public for provides that candidate for office right cast, recount of an election is held has to a votes appointment of provides for courts and further carry such recounts. recount commissions to 4, provides: 10, of Article the Indiana Constitution § House, assembled, judge . the elec- “Each shall . . when tions, .” . qualifications, returns its members. . and of own above, provision Acker cases cited In the Beaman and directly operate upon so as courts of this state was held to jurisdiction of votes deprive them all to order recounts of to legislative appoint offices or to commissions to cast The based votes cast for offices at election. Court reasoning holdings large upon in measure this Court’s these McAfee, Ind. 29 Lucas 217 N.E.2d in prerogative observed that constitutional where this Court qualifications legislatures their sit as courts of of to origin was was ancient further described members own follows: as legisla- right essential to “The is deemed the enactment interruption maintain confusion and

tion without to authority proper where functions balance government between coordinate branches. It are divided judicial than subject interference or control to more subject die- judicial of this court to the functions departments.” tates of the or Ind. executive 539-40, at 29 N.E.2d at 405. Central to the view taken Court of this constitutional provision concept separation pro powers. ways.

vision of the Constitution functions in two assigns governmental It duty judge first qualifications to the Houses of the second, judicial then ousts and executive branches jurisdiction subject. governmental authority over the exclusively parcelled protected thus out and rests Upon premises with each house. It cannot shared. be these ordering this Court cast concluded a recount votes legislative seat, for a a trial court the constitu had violated tionally government by engaging structure established exclusively Legislature. which is for the

However, respondent agree court does not Beaman jurisdictional and Acker cases settle the case before points us It now. out that the present recount statute decided, amended in after those cases were conforms *3 requirements to the 4, 10, of Article the of because results § longer the Legislature recount resolving bind the a con- test formerly over a seat as case, had been the but such re- presently Legislature sults are only forwarded to the “for action as may appropriate.” that find Ind. Code 3-1-27-14. Under the recount statute effective § at the time the Beaman and decided, Acker cases were the results aof required recount were in case of contest accepted to be as “prima evidence of the votes cast for such . .”. facie office. Ch. 208, § ^[1945] Ind. Acts 888, by the tri- bunal hearing the contest. Ch. 208, §352 ^[1945] Ind. Acts 895. This Legislature alteration in the manner in the which uses the recount results does not take the court’s act outside scope the the prohibition. of constitutional The distinction by pointed germane the is not to the constitu- tional presented, gravamen because the of the constitu- tional is not binding the effect the of court’s the but the action participation to the Constitution reserved court in a legislative branch. Supreme Roude Court in of the United States decision 15, 804, Hartke, 31 L.Ed.2d

bush 405 U.S. 92 S.Ct. v. a 1, by respondents. that Court held that is In case cited by an general election ordered in a of votes cast infringement upon constitu was Indiana court not under Article power tional of the United States Senate Constitution, provides: of the United States which § Returns, Judge Elections, House shall “Each be Qualifications . its own . .” Members. dealing opinion, Supreme it was As in its noted Court relationship question, with a federal constitutional sovereign governments. faced separate Here between we are question, which a balance with state constitutional and the same must coordinate of the maintained branches be between government. light sovereign difference reason- In this ing opinion insufficiently convince persuasive prior precedent us to overrule of this Court. argue jurisdiction in

Respondents also that we should find the trial races courts to order such recounts of Legislature has, by enacting because the the amend ment of aftermath the Beaman willingness cases, expressed Acker to have provide through procedure it courts assistance the recount resolving point certainly persuasive contests. practical point 4, 10, part However, Article view. § Constitution, supreme “is effec Indiana law tively legislatures, congresses, executives, controls courts and supra. people.” Reeves, rel. Acker As con ex light context, past strued in its historical pronounce Court, provision ments of this our effec Constitution *4 tively prevents engaging the courts of this from in together cooperative Legislature efforts "with the to determine legislative the correct outcome elections under for offices dispute circumstances a arisen in the where has aftermath of such elections rival between candidates.

300 prohibition hereby writ of perma- is made

nent hereby and alternative writ made is of mandate absolute. Prentice, concur;

Arterburn JJ., Givan, C.J., dissents opinion Hunter, J., with in which concurs.

Dissenting Opinion respectively majority C.J. I this dissent Givan, case. I would follow State ex rel. Beaman v. Circuit Court of County, (1951) Pike 229 Ind. N.E.2d Reeves, ex rel. Acker 229 Ind. 95 N.E.2d V. wholly agree general separation principle with the powers set out those cases. agree respondent I

However also with the court in this ruling legislature case that since the in Beaman Acker the amended statute so that the results for- of a legislature only warded “for as that such action may appropriate.” find IC 3-1-27-14. clearly of this opinion.

All set majority out in the How- majority opinion ever the also states: pointed “This distinction not germane presented, to the constitutional because the gravamen of the constitutional is not bind- ing the effect of court’s but action participation by reserved court in legislative the Constitution to the branch.” agree majority regard. I do not with the A reasonable philosophy counting extension of such would be that the votes the election boards initial election would legislative prerogative be an invasion of the and that legislative various bodies should their either choose members without benefit of election or that all cast votes would be counting. espouse them for forwarded to official I cannot principle. always it It is obvious has been the intent public requisite to consider the vote of primary as the attaining body. a seat in a A merely recount is *5 voting process provided has been an extension of this legislature effort correctness in an to assure the legisla- way is in of the vote invasion of the count. for, clearly prerogative in the ma- tive demonstrated original jority opinion, neither the vote nor the recount absolutely binding body. results on After the legisla- voting have been tabulated certified to constitutionally ture, pass upon is then free to qualifications persons involved. legislature’s they

It intent clear that seems manner the election boards and courts to desire function set out in the I would dissolve the writ statute. permit and would court to function the statute. under

Hunter, J., concurs. Reported at 362 N.E.2d 477.

Note. — Weyls L.

Scott Indiana. May 10, 1977.] 976S282. Filed

[No.