State Ex Rel. Robertson v. Circuit Court of Lake Co.

CONCURRING OPINION. I concur in the result reached in the prevailing opinion but cannot concur in all the reasons given therein.

These are original actions in this court in which the relators seek writs of prohibition to prohibit respondent circuit courts and the judges thereof from entertaining jurisdiction of petitions filed before them seeking a recount of the votes cast in their respective counties at the general election held November 8, 1938, for the office of United States Senate, and for all the state offices voted upon at said general election except that of Secretary of State.

The relator in Number 27,159 is Frederick Van Nuys, who is seeking to prohibit such proceedings in the seven named counties as to the votes cast for the office of United States Senator. The relators in Number 27160 are Joseph M. Robertson and ten other candidates for state offices who seek to prohibit the recount proceedings as to the votes cast for the said respective state offices in the said seven named counties. After lengthy oral arguments were had and memorandums filed, a temporary writ of prohibition was issued in each case. The question now presented is whether or not said temporary writ shall be dissolved or made permanent.

The responses filed by the various respondents show that verified petitions for a recount of the votes were filed in the respective counties of Lake, Vanderburgh, Vigo, Vermillion, Marion, Clark, and Franklin counties, and in no other counties in the state. No question here is presented as to the sufficiency of the several petitions filed in the said counties. The sole question presented in this action is one of jurisdiction. It is contended by the petitioners herein that the several circuit courts or the judge thereof have no jurisdiction to recount the votes within the territorial limits of their respective counties in case of United States Senator or candidates for state office, while the respondents contend that the circuit court does have jurisdiction to conduct such recount proceedings and to recount the votes cast for the office of United States Senate and for state offices in their respective jurisdictions. Both the petitioners and respondents rely upon chapter 47, of the Acts of 1881 and chapter 94, Acts of 1921. Prior to 1881 there was no statutory provision for a recount of ballots cast at any election. The General Assembly of 1881 enacted chapter 47 and by this act made provisions for a recount of ballots cast at an election. The recount sections of this chapter are sections 61 to 65, inclusive. As far as we have been able to learn this is the first time since the enactment of this statute that the court has been called upon to apply the various provisions thereof to the election of United States Senate or to state offices, but has been invoked many times as shown by the decided cases in Indiana in contests for local offices. Section 61 of this act provides:

"At any time within ten days after the Thursday next succeeding any election, any candidate for office at such election desiring to contest the same may petition in writing the Circuit Court, if in session, or the Judge thereof in vacation, for a recount of the ballots cast at such election, by three commissioners, to be appointed by the Court or Judge, two of whom shall be of different political parties; . . ." (Our italics.)

Section 62 provides:

"Upon the petition of such candidate, duly verified, showing that he desires to contest such election, and honestly believes that there was a mistake or fraud committed in the official count, and that he desires a recount of the ballots cast at said election for the office for which he was a candidate, and upon proof that he has served a written notice upon the opposing candidate, of the time and place of such application, five days before the hearing, and upon his furnishing a written undertaking, with sufficient freehold surety, that he will pay all the costs of such recount, the Court or Judge shall grant the prayer of said petition, and order said recount to be made." (Our italics.)

It is by virtue of the language found in section 61, to wit:"any candidate for office at such election desiring to contestthe same" that the respondents herein base their contention that a candidate for United States Senate or candidate for state office may ask for a recount of the ballots cast at such election, and it is upon the language found in section 62 that said respondents contend that the recount is limited to the recounting of the ballots cast in the county in which the petition is filed. As stated above, the provisions of sections 61 to 65, inclusive, have been invoked many times in this state in contest proceedings for township and county offices. In the many cases found in our official reports, involving recount proceedings, we find no case where a part only of the ballots cast for the contesting parties were counted, but in every instance all of the votes cast for the particular office contested were recounted. Respondents in this case have not directed our attention to a single instance in which a recount of the votes were had for any office, where less than all of the votes cast for that particular office were recounted. In case of township trustees all of the votes cast in that particular township must be recounted although fraud be alleged in only a part of the precincts composing that township. Likewise in county offices where fraud is alleged to have occurred in certain designated precincts less than the whole, the recount of the voted are not limited to a recount of the precincts in which fraud or irregularity is alleged to have occurred, but all of the votes cast in the entire county are recounted. Thus it will be seen that the courts of Indiana since the enactment of the 1881 statute have universally and without a single exception construed this act as providing for a recount of all the ballots cast at the election for the particular office contested. The only authority for recounting all of the ballots cast flows from the language employed in said act. This is true even though the office voted for and being contested, involved more than one county, such as judge of circuit courts, where the circuit was composed of more than one county. As far as we are advised it has never been contended that less than all of the votes cast could determine who received the highest number of votes cast at such election. Indeed we find in section 64, Acts 1881, the following language:

"When said recount is finished, the commissioners, or a majority of them, shall make out a certificate, under their hands, stating the number of votes that each of said candidates has received for said office in each township and precinct, and which of said candidates, as shown by the said recount, received the highest number of votes, and what his majority or plurality was, and said certificate shall be filed with the Clerk of the Circuit Court, and by him recorded in the order book of said Court. . . ."

Such a certificate could not be made without a recount of all the ballots cast of such candidates. Such a practical, universal and uniform interpretation of the statute over many, many years becomes binding upon the courts as a judicial interpretation thereof. It is provided by law who shall vote for designated offices. The suffrage for township trustees is limited to the legally qualified electors who reside within the geographical limits of the township. County offices, such as county auditor, county recorder, county treasurer and the like, are limited to the legally qualified electors living within the territorial limits of the county. The votes for city officials are limited to the qualified electors living within the corporate limits of the city. The judge of the circuit court is elected by the qualified electors living within the boundaries of the judicial circuit. United States Senator and state officials are elected by the qualified electors living within the territorial boundaries of the entire state. The very foundation of our democratic form of government is based upon universal suffrage. For any court or commission or any other designated body to declare one of many opposing candidates elected to an office by a recount of less than all of the votes cast for that office would be in violation of the very fundamental constitutional rights of universal suffrage. This proposition was very forcefully expressed in an opinion delivered to the legislative contest committee when they were considering what is known as the Denton-Willoughby contest. We quote from the opinion of Arthur Gilliom, Attorney General of Indiana, found in Reports and Opinions of the Attorney General of Indiana 1925-1926, pages 671, 675, 676, 678, as follows:

"Furthermore the legislature has provided for recounts within a limited time in counties where errors are claimed, provision being made to recount votes cast both by ballot and voting machines. The result of such recount proceedings are available as evidence of what the vote actually was in contest proceedings. It is clear that when a contest is based on the theory that one candidate received a higher number of votes than did another, and provision has been made by the Legislature for a contest of that theory, that all votes must be counted and that the contestee is entitled to have the facts determined by the best evidence, viz: by the legal ballots themselves and by the results shown by voting machines where they are used.

". . . . .

"It is clearly not competent for the Legislature to empower a committee of its own members under a delegation of general powers to make a limited inquiry into the questions of who received the most votes, as it is asked to do in the specifications, and to determine who shall occupy the highest office in a coordinate branch of the government. Such an attempt would violate the constitutional principle on which the government is divided into coordinate branches, the chief officers of which are elected by the people, as provided by the constitution; and an attempt to determine who of several candidates shall sit as a judge of the Supreme Court by virtue of having received the highest number of votes without counting all of the votes cast would violate the constitutional right of the people to have their judges elected on the principle of universal suffrage. The presumption is that the legislature intended not to legislate in violation of the constitution of the State."

As stated above, the United States Senator and state officers are elected by all of the qualified electors of the state, and it would therefore seem clear that in order to give effect to the constitutional right of the people to elect such officers by universal suffrage no less than all the votes cast for the office could be permitted, as a limited inquiry into the question of who received the most votes would be in direct conflict with the above stated constitutional principle. To so hold would be identical with a holding that a candidate for any office elected by the entire suffrage of the state, could be elected by a limited suffrage in the first instance, which obviously could not be done. Therefore, taking into consideration the long and uniform interpretation of the act of 1881, supra, to the effect that in a recount proceeding all of the votes cast for the contested office must be recounted and upon the sound and fundamental principle as stated in the opinion of the Attorney General above quoted, we are forced to the conclusion that the act of 1881 contemplates the recount of all the votes cast for the offices embraced within its provisions, and it was not the legislative intent to permit a limited inquiry in recount proceedings. There are various provisions in the act of 1881 that are difficult to reconcile with the view that said act applies to or that the legislature ever intended for it to apply to candidates who are elected by the entire suffrage of the state. For example the act provides that the order entered by the circuit court should provide, "that each of the candidates may be present during said recount." It would, of course, be impossible if a recount were had before the circuit court in each of the ninety-two counties of the state for the candidate to be present in each of said counties at the same time. We also call attention to section 64 quoted above with reference to the certificate made by the recount commissioners.

It will further be noted that no adequate provisions are made in said act whereby a circuit court in one county in which a contest proceeding was filed to secure the ballots from the other counties, but the fact that no adequate provisions are made or whether or not the provisions are adequate does not determine, however, the question of whether said act confers jurisdiction upon the various circuit courts to recount the ballots for said officers or for the office of United States Senate within their respective jurisdictions. But if jurisdiction is conferred upon circuit courts of this state or the Judges thereof, to recount the ballots cast for the office of United States Senate or for state offices, it is jurisdiction to count all the ballots cast in the entire state and not limited to a recount of the ballots cast in certain counties selected by the losing candidate.

Respondents contend that jurisdiction is conferred by language found in section 61 of said act of 1881 namely "any candidate" and says that this language is broad enough to include a candidate for the office of United States Senate and candidate for state office. This is true, but the whole act must be considered in order to grasp its true and proper meaning. If we give to the words "any candidate" their broad and all-inclusive meaning, the same broad and all-inclusive meaning should also be given to the phrase "a recount of the ballots cast at said election" found in the same section and also the phrase "a recount of the ballots cast at said election for the office for which he was a candidate," found in section 62 of said act and hold that said phrases mean all the ballots and not a limited number of ballots. It could hardly be said with any degree of logic that in case where the entire suffrage of the state is exercised, that a recount of a part of the ballots would satisfy the demand of the language "a recount of the ballots cast at said election for the office for which he was a candidate." So, whether the act of 1881 be construed to embrace candidates for the office of United States Senate and candidates for State office or not, it follows that the circuit courts and the judges thereof who are respondents herein have no jurisdiction to conduct recount proceedings, which are limited to a recount of the votes cast within their jurisdiction.

The respondents seek to avoid the obvious interpretation above stated, namely, that the statute clearly contemplates the recount of all the ballots cast at the election for the office contested, by taking the position that the successful candidate had the right to institute proceedings in the remaining counties, and thus the aggregate would constitute all of the ballots counted. In short their position is that a successful candidate is given the right under the 1881 statute, supra, to contest his own election. This would be an anomalous situation for a successful candidate by a proceeding aided by the ancillary proceeding of a recount to seek to change the result which he obviously desired at the election. It would not only be an anomalous situation, but a very foolish one, for if the successful candidate, after he had succeeded in the election, if he did not desire the office, all he would need to do would be to resign or fail to qualify. To contest, Webster says means, "to strive to be elected; to dispute the declared result of an election." So from the common sense interpretation of the word "contest" as used in election statutes, certainly does not contemplate that the successful party would institute a contest proceeding to contest his own election. It will also be noted that the statute of 1881, supra, as far as contest of election is concerned is a re-enactment of a former statute. Sections 61 to 65, inclusive, which are the recount sections, were incorporated in the act of 1881 and became the first statute authorizing recount proceedings of any kind. Section 66, which is the first provision of the contest portion of said statute, provides:

"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 contestor; the person whose election is contested, as the contestee." (Our italics.)

The above section, read in connection with section 61, which is the first section of the recount statute, provides:

"At any time within ten days after the Thursday next succeeding any election, any candidate for office at such election desiring to contest the same, may petition in writing the Circuit Court, if in session, or the Judge thereof in vacation, for a recount of the ballots cast at such election, . . ."

So the plain and obvious meaning of these provisions of the statute is that any candidate for office at such election desiring to contest the election of any person declaredelected, may petition for a recount and the person whose election is contested would be known as the contestee and it would be clear that the candidate declared elected could not be both the contestor and the contestee. It seems to us so obvious from the whole tenor of the contest and recount statute of 1881 that the legislature never contemplated that the successful candidate at an election should become the contestor under the provisions of the contest and recount statute. Such an interpretation and construction of the statute is in harmony with the conclusion reached in the first part of this opinion and answers the argument of the respondents to the effect that if contest proceedings are instituted by the unsuccessful candidates in certain counties of the state of their own selection, that the successful candidate might also institute proceedings in other counties if he believed fraud had been committed or a mistake in the counting was made, and that he had received more votes in such other counties than had been counted for him and thus procure a recount in all the counties of the state. Suppose that, in a contest proceeding for county office the successful candidate had been elected by only a few votes; the unsuccessful candidate institutes proceedings to contest and petition for a recount of the votes, alleging irregularity and mistake in the counting of the votes in certain voting precincts of the county. In such case it does not devolve upon the successful candidate to institute proceedings alleging fraud or mistake in the counting of the votes in other precincts of the same county in order to secure a recount of all the votes in the voting unit. This would be necessary as a logical consequence if respondents' position were logical, but according to our interpretation of the statute it would not be necessary for the successful candidate to institute such proceedings in order to secure a recount of all the ballots cast for that office in that election, for, if the unsuccessful candidates petition for a recount, he would know that all the ballots cast would be recounted, and thus secure a fair and equitable determination of the important question, to wit, who of the candidates received the highest number of votes cast. We can see no valid reason why the same rule that has been applied by the courts of this state in every contest proceeding of which we have any knowledge should not also be applied in this case. In case of township, county, circuit or other local contest, and recount proceedings are had, all of the votes cast for that office have been recounted notwithstanding the fact that the petition for a recount designated only a part of the voting precincts in which fraud was alleged. So when a contest for a state office or for the office of United States Senator is being contested and a recount of the ballots asked in order to avoid a gross injustice to the successful candidate and to secure a fair and full determination of the question before one tribunal, where the same measuring stick would be applied to both parties alike, it would appear that equity and common sense would demand that all of the votes cast for such office should likewise be counted. This is not only equitable, just and fair, but is in accord with all of the decided cases in this state. It would be grossly unfair to attribute any other motive to the legislature in enacting the 1881 statute, to attribute such a motive, unless we found express words to that effect.

Respondents say that the election laws, including the statutes relating to contests and recounts, should receive a liberal construction in order to accomplish the purpose intended.

The right to a recount of ballots was unknown at common law. This right is of statutory origin, and the rule of law governing courts in cases such as the ones here presented was well stated by Myers, J., in the case of Martin v. Schulte (1932),204 Ind. 431, 435, 182 N.E. 703, as follows:

"Since appellant's right to contest the nomination of appellee depends on statutory affirmance, he must assume the burden of the well-settled rule that one who seeks the benefit of a statute must, without the aid of any intendment, bring himself strictly within its spirit as well as its letter. Board v. Jarnecke (1905), 164 Ind. 658, 664, 74 N.E. 520; Barker v. State (1919), 188 Ind. 263, 267, 120 N.E. 593, and cases there cited; Alyea v. State (1926), 198 Ind. 364, 152 N.E. 801, 153 N.E. 775."

And so with the parties here who seek to have a partial recount, they must point to some statutory provision which confers such right upon them without the aid of any intendment. No such provision is pointed to by the respondents in the act of 1881, and we have been unable to find any.

We, therefore, conclude that a contest proceeding, regardless of the office contested, necessarily brings before the tribunal authorized to recount the ballots all ballots cast for that office and thus uniformity is preserved and any other construction would violate the right of universal suffrage guaranteed to the people by our constitution, and we further conclude that a successful candidate cannot contest his own election, but only an elector or unsuccessful candidate can institute such proceedings.

The only other statute involved in this proceeding is chapter 94 of the Acts of 1921. The title of this act is, "An Act to provide for recount and correction in township, city, county, circuit, district and state elections where voting machines and paper ballots are used." This statute affects the recount in the counties of Lake, Marion, Vigo, and Vanderburgh, as these are the only counties in which contest proceedings have been filed by the losing candidates which used both voting machines and paper ballots in registering the votes cast at the election of November 8, 1938. The first section of this statute provides:

"That at any time within ten (10) days after the Thursday next succeeding any election, wherein the votes are cast by means of voting machines and paper ballots, any candidate for office at such elections, desiring to contest the same, may petition in writing, the circuit court, if in session, or the judge thereof in vacation, for a recount of the votes cast within the bounds of the county wherein such court has jurisdiction." (Our italics.)

The second section directs and states what shall be alleged in the petition; the third section provides the time for the hearing of said petition; the fourth section makes provision for the appointment of a recount commission to assist the court in the recount and the correction of the votes and provides for watchers and fixes the compensation to be paid; section five provides for the manner of recount; section six provides for the issuance of a certificate by the recount commission stating the number of votes received by each candidate and the recording of such certificate in the order book of the court and provides that such certificate or the record thereof shall be prima facie proof of the facts therein recited in any contest proceeding; section seven provides for the safe custody of the election machines and the ballots and other records; section eight provides for the payment of costs; section nine has to do with the jurisdiction of superior courts in recount proceedings; section ten provides that the act shall be construed supplemental to other laws; and the last section, section eleven, is an emergency clause.

It is contended by the petitioners herein that the act of 1921 is unconstitutional, being in violation of section 22, article 4, of the constitution of Indiana, which provides:

"The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say; . . ."

Sub-section 16 provides:

"Providing for opening and conducting elections of state, county, or township officers, and designating the places of voting."

Also section 23, article 14, of the constitution of Indiana, which provides:

"In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state."

It must be conceded that the provision concerning elections includes within its spirit the requirement of uniformity of procedure in determining the results of elections. The harm arising out of local or special laws is not in the fact that they are local and special, but the harm is in the lack of uniformity in operation. The respondents contend that counties using voting machines or both voting machines and paper ballots form a class sufficient to justify a classification of such counties, and, therefore, counties using both voting machines and paper ballots constitute a distinct class, that would justify a class for legislative purposes. The existence of certain facts such as the use of voting machines and paper ballots in certain counties might form a proper basis for classifying such counties for certain purposes and not for other purposes. The fact that voting machines are used in certain counties and not in others, together with the further fact that voting machines are complicated mechanical devices, such that an ordinary layman might not be competent to inspect and tabulate the votes registered by such complicated machines or to determine whether or not the machine properly registered the votes as cast, or whether or not the machine had been unlawfully tampered with, would, we think, furnish a proper basis for legislative classification as to the method provided for the recounting of the votes. The legislature might reasonably classify such counties for the purpose of setting up special methods of rechecking or recounting the votes tabulated in such counties and might very properly delegate to such a special commission the right to recount the paper ballots cast in such counties. Such a classification, we think, would be reasonable and constitutional. But another question is presented in this case and that is: conceding the right of the legislature to classify counties using voting machines or voting machines and paper ballots, for the purpose of providing for a special method of tabulating the votes or recounting the votes in such counties different from that provided for in other counties, can such classification furnish a proper basis for classifying the counties as to the right of a recount?

The subject of the act of 1921 is recount, and not the method used in recounting the votes cast. The first section of this act purports to grant the right to recount the ballots cast for a candidate for state office within the limits of the county when voting machines and paper ballots are used, but does not grant that right in any other county. Does the fact that voting machines are used in certain counties or voting machines and paper ballots used in certain counties furnish a sound basis for classifying those counties into a group and giving an unsuccessful candidate at an election the right to have the votes recounted in such counties and not in others, furnish a proper basis for such classification? The right given by the statute for a recount is one thing, while the method employed in making the recount is another. They are entirely and fundamentally different. The right to a recount is the substantive right, while the method used in recounting is the adjective part of the law and constitutes the machinery to secure the substantive right granted. Suppose that all of the large counties of the State of Indiana vote either by voting machines or by combinations of voting machines and paper ballots and were heavily inclined to one major political party and all the smaller counties used paper ballots only and were inclined to the opposite political party and the legislature would enact a law granting the right to a recount in all counties using voting machines or in all counties using a combination of voting machines and paper ballots, and denied the right of a recount in the smaller counties using only paper ballots. It is obvious beyond argument that such a law would be a special and local law and would violate the letter and spirit of the constitutional provision relating to local and special laws and would permit the very thing that the constitutional provisions herein referred to were designated to prevent. So that is in effect what the 1921 statute accomplishes. It purports to grant the right to a recount of ballots in certain counties, to wit: those using voting machines and paper ballots, and makes no provision for a recount of ballots in counties using paper ballots only.

There is nothing inherent in the use of voting machines or in using voting machines in connection with paper ballots that could possibly furnish a proper basis for classifying such counties with reference to the right to have a recount. While such facts might furnish a proper basis for classifying such counties as to the method employed or the machinery set up for effecting such a recount. The right to have ballots recounted as stated above is a far different subject than the subject of "method used" in the recounting of ballots, and while such facts may furnish a proper basis for one classification is no argument that it furnishes a proper basis for the other. It seems clear that the act of 1921 in so far as it purports to grant the right of a recount of ballots within the territorial limits of the county and denies the right to a recount in other counties not coming within the purview of the statute is clearly a local and special law and is violative of the above named constitutional provisions of Indiana. Any construction of the act of 1881 or the act of 1921, which permits an unsuccessful candidate to choose the counties in which a recount of the ballots will be had to the exclusion of all others has the same effect as though the legislature itself had made the choice by legislative enactment. If the legislature has no such power it then cannot delegate or vest in any unsuccessful candidate the power to make such a choice. By the act of 1921 the legislature attempted to classify counties using both voting machines and paper ballots and granting to an unsuccessful candidate the right to effect a recount in any of such counties to the exclusion of all others. Such facts furnish no basis whatever for making such a classification. In the case of Bedford Stone Quarries Company v. Bough (1907), 168 Ind. 671, 674, 80 N.E. 529, this court said:

"The legislature may make a classification for legislative purposes, but it must have some reasonable basis upon which to stand. It is evident that differences which would serve for a classification for some purposes would furnish no reason for a classification for legislative purposes. Such legislation must not only operate equally upon all within the class, but the classification must furnish a reason for and justify the making of the class; that is, the reason for the classification must inhere in the subject-matter, and rest upon some reason which is natural and substantial, and not artificial."

Many cases in Indiana might be cited in support of the above rule, but the rule is so uniform and so clearly stated in the above case and is adhered to in all of our cases upon that subject that further citations are unnecessary.

Our conclusion is that the act of 1881, if it grants the right to a recount of ballots cast either for the office of United States Senate or state officers, it clearly contemplates that all of the ballots cast should be recounted and no limited or partial recount is either expressly or by reasonable inference provided for in said statute, and, therefore, no jurisdiction is in any of the respondent circuit courts to proceed with the recount of ballots cast in their respective jurisdictions only, which is sought to be done by the petitions filed, and that the contestors have not attempted to invoke the jurisdiction of any of the respondents to recount all the votes cast for the respective offices; and we further conclude that the act of 1921, chapter 94, is void and unconstitutional and violative of section 22, article 4, and section 23, of article 4, of the constitution of Indiana in that it constitutes a special and local law granting to certain counties the right to recount ballots for state officers and for the office of United States Senator, cast in their respective jurisdictions and makes no provision for the recount of all the ballots cast in the state for such offices and in so far as said act attempts to confer such right the same is unconstitutional and void.