163 Ind. 478 | Ind. | 1904
It appears from the record that appellees were, petitioners before the board of commissioners of Miami county for the construction of free gravel roads in Harrison township, in said county, under the act of 1901 '(Acts 1901, p. 449), and that such proceedings were had' in said cause that the question of building said free gravel roads was submitted to the voters of said township on February 7, 1903, at a special election called for that purpose by said board of commissioners. On February 12, 1903, a statement of the polls and votes cast in the two
It is first insisted by appellants that the court below erred in overruling their motions to dismiss the appeal from the board of commissioners, and to strike from the files the amended petition and statement of contest for the following reasons: (1) The petition and statement of contest filed by appellees was not verified, as required by §6314 Burns 1901, and, for want of such verification, the board of commissioners and the court below on appeal had no jurisdiction of said proceeding, and there was no right to amend the petition in the court below. (2) Uo final judgment or decision was rendered in said proceeding by the board of commissioners when the same was appealed to the court below. (3) Uo affidavit was filed with the auditor by appellees, showing that they had a right t'o appeal said proceeding, as required by §7859 Burns 1901, at or before the time the same was appealed by the appellees to the court below. (4) The transcript filed by the auditor in the court below did not contain all the proceedings before the board of commissioners in said gravel road proceeding.
It is settled that any person interested as a taxpayer or otherwise may appear before the board of commissioners and contest the result of a' railroad or gravel road election, or an election for the incorporation of a town, and, if aggrieved by the decision, take an appeal to the circuit ¡court. Board, etc., v. Conner (1900), 155 Ind. 484; Harris v. Millege (1898), 151 Ind. 70; Goddard v. Stockman (1881), 74 Ind. 400.
In Board, etc., v. Conner, supra, this court, speaking of gravel road elections and the right to contest the same, quoted with approval the following from Goddard v. Stockman, supra: “The statute expressly gives to any
It is evident under the cases cited that the general law providing for contesting elections has no application to railroad and gravel road elections or elections for the incorporation of towns. The case of Farlow v. Hougham (1882), 87 Ind. 540, cited by appellants, is, therefore, not in point here. The special election held on February 7, 1903, the return of said election made by the election officers t'o the board of commissioners, and the petition calling in question the result of said election as reported by said election officers, filed' by appellees on February 12, 1903, before said board, were all in said proceeding for the construction of free gravel roads in Harrison township, and a part thereof. Appellees’ said petition was a pleading in said cause.
It appears from the record that before the court below overruled appellants’ motion to dismiss the appeal and their motion to strike from the files appellees’ amended
Section 7859 Burns 1901, cited by appellants, requires a person not a party to a proceeding before the board of commissioners to file an affidavit showing his interest, before he can appeal; but as appellees were parties to the proceeding before the board of commissioners, they were not required to comply with said provision. The act under which this proceeding was brought and the election held provides that “if at such election a majority of those voting on said question are in favor of building such road
It is clear, from the foregoing' provision of said act, that when said board of commissioners rejected the petition of appellees disputing the correctness of the result of said election as reported by the election officers, and approved said return, showing that a majority of the votes cast at said election was against the building of said road, this was, in effect, a decision and judgment that the “election had failed to carry in favor of” the. proposed improvement, and, as such, it was a final decision, and said proceeding was at an end. When this judgment of the board was rendered, the law fixed the rights and liabilities of the parties, to said proceeding. The proceeding before the board of commissioners was ex parte, there were no parties adverse t'o the petitioners, and no judgment for costs was necessary, as all the costs were by statute charged against the petitioners, and were collectible from them by fee bill issued by the auditor to the sheriff. They could pay the cost as the law provides, or be compelled to do so by a fee bill, or they could appeal to the circuit court.
We will next consider the fourth and last reason urged by appellants to sustain their contention that the court erred in overruling their motions to dismiss the appeal and their motions to reject appellees’ amended petition. It was not assigned in the motions to dismiss the appeal, nor in the motions to reject appellees’ amended petition,
Section 7861 Burns 1901 provides: “Within twenty days after the filing of such appeal bond, the auditor shall make out a complete transcript of the proceedings of said board relating to the proceedings appealed from, and shall
It was held in Board, etc., v. Loeb, supra, that if material papers are not filed in the circuit court on appeal from the board of commissioners, they may be obtained on motion of either party. So in this case, if any of the papers filed before the board of commissioners in said gravel road ease were not filed by the auditor in the court below, or if any proceeding of the board of commissioners in said case was not contained in the transcript as required by said §7861, supra, either party could on motion have had said auditor file such papers and certify and file such proceedings in the court below. So far as the record shows, no such motion was made by either party, nor, as we have already said, was any mention made in appellants’ motions to dismiss the appeal, or in their motions to reject appellees’ amended petition, that the transcript filed by the auditor in the court below did not contain all the proceedings of the board of commissioners in said gravel road case, nor was the same referred to in any way in said motions. If said motions, or either of them, had objected to the tranfccript, or asked to dismiss the appeal for said reason, or if the question had been seasonably presented to the court below, and appellees then failed or neglected to cause such proceedings t'o be certified and filed, a different question would be presented,
Appellants, to sustain this contention, cito Shirk v. Moore (1884), 96 Ind. 199, where an appeal from the board of commissioners in a gravel road proceeding was dismissed on a motion assigning as a cause ‘that the circuit court had no jurisdiction.” But in that case, which was a proceeding commenced before a board of commissioners to construct gravel roads under the act of 1877 (Acts 1877, p. 82, §§5091-5103 R. S. 1881), no appeal bond had been filed with and approved by the auditor within thirty days after the decision appealed from was made, as required by §5773 R. S. 1881, and the transcript delivered by the county auditor to the clerk of the circuit court did not contain all the proceedings of the board of commissioners in said case concerning questions triable on appeal to the circuit court. Furthermore, said auditor did not deliver to said clerk one of the material papers filed in said cause before the board of commissioners, upon which an issue had been made before said board of commissioners, which was a question to be presented to and determined by the circuit court on appeal. As no appeal bond was filed with and approved by the auditor in said case, it is clear that the circuit court had no jurisdiction, and the appeal was properly dismissed for that reason.
Appellants insist that appellees’ amended petition filed in the court below was not sufficient to withstand their demurrer for want of facts, because it was not alleged that any of the ballots were protested and preserved. This in
Under the assignment of error that the court erred in overruling the motion for a new trial, appellants first insist, that the court erred in admitting in evidence the original petition for the construction of gravel roads in Harrison township, and the proceedings of the- board of commissioners in said cause, including the order for said special -election. The real question at issue was whether a majority of the votes cast at said special election was for
It is next contended by appellants that as the evidence showed that all the ballots cast at said special election were destroyed after they were counted, as provided in the election law, and that no ballots were protested or preserved and returned to the clerk’s office, that the court erred in permitting witnesses to testify on behalf of appellees that they voted for the construction of free gravel roads at said special election; citing Weakley v. Wolf, supra, and Hall v. Campbell, supra. This contention is the same as appellants’ objection to the sufficiency of the amended petition to contest, and is predicated upon the rule declared in Weakley v. Wolf, supra, and Hall v. Campbell, supra, which we have held does not apply to contests of gravel road elections. In actions to contest the election of public officers prior to the enactment of the Australian ballot law, the original ballots, when their identity was established, were the best evidence, but, if they had been destroyed, parol evidence was admissible for the purpose of ascertaining the correct vote; and it has been held that the voter may testify as to the contents of the ballot cast by him — that is, the names of the candidates for whom he voted, though he can not be compelled to do so. Williams v. Stein (1871), 38 Ind. 89, 93, 94, 10 Am. Rep. 97; Cooley, Const. Lim. (7th ed.), 910-913.
It is said in McCrary, Elections (3d ed.), §456: “In Reed v. Kneass [1850], 2 Pars. 584, Brightly, Elec. Cas., 366, it was insisted by counsel that a voter should not be
While §13 of article 2 of the Constitution secures to the voter at the election of public officers the protection of secx’ecy, the same has no application to railroad or gravel road elections. This is true because said section of the Constitution only applies to such elections as the Constitution requires to be by ballot. There is no provision of the Constitution requiring that railroad or gravel road elections shall be by ballot. The legislature has the power to provide that such elections shall be viva voce, or be determined by petition or remonstrance of the voters of the
During the trial appellees called one Grindle as a witness, who testified that he voted in favor of building said free gravel roads, and as to the contents.of his ballot, and how he marked the same. On cross-examination he testified that he had made an affidavit as to how he voted. He was then cross-examined at length about the contents of the affidavit and the circumstances under which it was signed and sworn to. The affidavit was shown to the witness, and he was asked about the marks upon it. The witness had not been asked anything about said affidavit, nor did he testify concerning the same on his examination in chief, but on redirect examination he testified that' the affidavit was true, and the same was read as a part of said reexamination. Affidavits of three or more other witnesses as to how they voted, and the contents of their ballots, and how they were marked, were read in evidence as a part of the redirect examinations of said witnesses under substantially the same circumstances. To the reading of each of said affidavits in evidence, appellants objected at the time, and assigned the admission thereof as causes for a new trial.
Appellants called out for the first time on crosg-exam
It is next insisted by appellants that the court invaded the province of the jury and committed reversible error, in instructing the jury that, in determining the credibility of the witnesses and the weight to be given to their testimony, the jury should consider their interest, if any, their manner and conduct while testifying, etc., citing Unruh v. State, ex rel. (1886), 105 Ind. 117, 124. Appellants claim that the word “might” or “may” should have been employed by the court instead of the word “should.” The court by said instruction informed the jury that it was their duty to consider all the things enumerated, in de
The third instruction given to the jury by the court is substantially a copy of one sustained by this court in Pfaffenback v. Lake Shore, etc., R. Co. (1895), 142 Ind. 246, 249-251, but appellant's object to the word “circumstances” as last used in said instruction. While the latter part of said instruction contains some, verbal inaccuracies, and can not be commended as a model, yet when read in connection with all the other instructions given in the cause, it is clear that the jury, being, as we must presume, men of average intelligence, were not misled thereby.
The court by instruction six informed the jury that, although it was alleged in the petition “that the election boaxd in the north precinct in said township was organized in pursuance of an unlawful conspiracy betweexx ap
Appellants contend that the theory of the appellees’ petition was the alleged unlawful conspiracy, and nothing else, and that the court, in instructing the jury that appellees were not obliged to prove the alleged conspiracy, but' were entitled to recover if they proved that a majority of the legal votes cast at said election were in favor of. building said free gravel roads, disregarded said theory of the case and committed an error. The gravamen of appellees’ petition was that more legal votes were cast at said election for building said free gravel roads than were cast against building the same, and not the alleged conspiracy. Appellees’ right to recover did not, therefore, depend upon proof of the unlawful conspiracy alleged, but upon proof that a majority of the votes cast at said election was in favor of building said free gravel roads. In such a case proof of the conspiracy is not necessary. Jenner v. Carson (1887), 111 Ind. 522, and authorities cited; Severinghaus v. Beckman (1894), 9 Ind. App. 388.
Appellants complain of two instructions given by the court which enumerated certain alleged acts and conduct of the election officers and others who testified as witnesses in the cause, which tended to show the motives, bias, prejudice, feeling, and interest of said witnesses, and informed the jury that if such matters had been established
Some other questions are argued in the briefs, but what we have already said disposes of all questions presented as required by the rules of court.
Judgment affirmed.