CHAPTER 60.

ELECTIONS.

Section numbers to notes refer to Revised Statutes of 1901.

An action can not be maintained against a county for the printing of election ballots unless the county council has made an appropriation to pay for such printing, Board v. Babcock, 33 App. 349.

6248. Canvassing votes, disputed ballots.

All ballots that are objected to by any or all members of a canvassing board should be preserved as protested ballots, whether such ballots are counted or not. Tombaugh v. Grogg, 156 Ind. 355.

The slight soiling of a ballot, which reasonably appears to have been the result of accident, or want of due care, is not such a distinguishing mark as renders the ballot void. Tombaugh v. Grogg, 156 Ind. 355.

If a ballot is not marked in the circle to indicate the voting of a straight ticket, but is marked opposite the names of candidates, the ballot is to be counted for the persons that are properly marked as voted for, although the ballot may be marked in favor of two persons for the same office in other instances. Borders v. Williams, 155 Ind. 36.

6258. Constitutional amendment, voting on.

In order that a proposed constitutional amendment submitted to the voters of the state for ratification shall be adopted, a majority of the electors of the state must vote in its favor, and courts take judicial notice of the number of voters who vote at a general election. In re Denny, 156 Ind. 104.

[Acts 1905, p. 189. In force April 15, 1905.]

6270. Canvassing boards.-1. That in each county in the state the county board of election commissioners shall constitute a county board of canvassers, who shall canvass and estimate the certificates, poll lists and tally papers returned by each inspector of elections in the county, for which purpose the board shall assemble in the circuit court room in the court house, at six o'clock p. m., upon the day of each election; and that in each city in the state, the city board of election commissioners shall constitute a city board of canvassers, who shall canvass and estimate the certificates, poll lists, and tally papers returned by each. inspector of election at all city elections, for which purpose the board shall assemble in the council chamber of said city at six (6) o'clock p. m. upon the day of said election.

This act supersedes sections 6270-6275, Burns' R. S. 1901.

6271. Chairman-Clerk.-2. The members of such county board shall select one of their number as chairman, and the clerk of the circuit court shall act as clerk of the county board; and the members of such city board shall select one of their number as chairman, and the clerk of such city shall act as clerk of the said board.

6272.-Clerical assistance.-3. Each of such board of canvassers shall employ such clerical assistance as in its judgment may be deemed necessary for the proper canvassing and tabulating of the vote: Provided, That not more than one-half of the clerks employed upon such work of canvassing shall be members of the same political party; and such clerks shall be paid for their services a reasonable compensation to be fixed by said board of canvassers, not, however, to exceed the sum of fifty cents per hour to each clerk for the time actually employed upon such canvass, and the order of said county board upon the county treasurer for clerical services rendered said county board shall be sufficient authority to the county treasurer to pay to the holder of the same the amount therein fixed: Provided, There is money in the treasury for that purpose; if there be no funds to pay such order when presented the treasurer shall indorse thereon "Not paid for want of funds," and the day of such presentment over his signature, which shall entitle such order to draw thenceforth legal interest; and the order of such city board upon the city treasurer for clerical services rendered such city board. shall be sufficient authority for the city treasurer to pay to the holder of the same the amount therein fixed: Provided, There is money in the city treasury for that purpose, and if there be no funds to pay such order or orders when presented the treasurer shall endorse thereon "Not paid for want of funds," and the date of such presentment over his signature, which shall entitle such order to draw henceforth legal interest.

The members of any such board shall receive for their services as board of canvassers such amount as may be fixed by the board of commissioners or common council as the case may be.

6273. Board's duties.-4. Such county or city board when organized shall carefully compare and examine the papers intrusted to it, and aggregate and tabulate from them the vote of the county, or the vote of the city, as the case may be, a statement of which shall be drawn up by the clerk which shall contain the names of the persons voted for, the office, the number of votes given in each precinct, ward or township in a county election, and in each ward and precinct in a city election to each person; the number of votes given to each in the county or city and also the aggregate number of votes given, which statement shall be signed by each member of such board, and canvass sheets together with such certificates, poll books and tally papers shall be delivered to the clerk, and by him filed in his office; and the same shall be preserved by him open to the inspection of any legal voter.

6274. Certificate.-5. Such county board shall declare the persons having the highest number of votes given for any office to be filled by the voters of a single county duly elected to such office, and certify the same in the statement above required; and such city board shall declare the persons having the highest number of votes given for any office to be filled by the voters of a city election, duly elected to such office, and certify the same in the statement above required.

6275. Tie vote.-6. If two or more persons shall have the highest and equal number of votes for a single office to be filled by the voters of such county or city, such county or city board shall declare that no person is elected to fill such office, and shall certify the same in the statement above provided and when filed the clerk shall certify the fact to the tribunal whose duty it is to supply vacancies in such office, or to issue writ of election to fill the same as the case may require.

6275a. Defective papers-Duty of board.-7. No tally papers, poll book or certificates returned from any election by board of judges thereof shall be rejected for want of form, or for lack of being strictly in accordance with the directions contained in the election laws if the same can be satisfactorily understood, and such board of canvassers shall in no case reject the returns from any precinct if the same be certified by the board of election of that precinct as required by law, and returned by the inspector or one of the judges of said board.

6275b. Evidence, hearing, witness in contempt.-8. County or city. boards of election commissioners and county or city boards of canvassers in matters concerning the sufficiency or validity of any nominating certificate or petition, may examine on oath any person touching any material matter connected with or bearing on the proper discharge of their duties. Any member of the board may administer such oath. Either of said boards is given full power to send for persons and papers, and compel the witnesses to answer under oath touching any questions which may properly come before said board. The sheriff of the county in county elections and city marshal or superintendent or chief of police in city

elections shall serve all process, and obey all orders of such board, and shall during the canvass provide a deputy who shall remain in attendance upon such board of canvassers, and shall be paid by the county or city for such services at the rate of two dollars for every eight hours of such attendance. In case of the refusal of any person subpoenaed to attend or testify such fact shall be reported forthwith by such board of election commissioners or said board of canvassers, to any circuit or other court of general jurisdiction of the county, or to a judge thereof, and such court or judge shall order such witnesses to attend and testify, and on failure or refusal to obey such order such witnesses shall be dealt with as for contempt.

6275c. Disputes - Decision by circuit judge. — 9. -9. In case of a disagreement between the members of the county or city board of canvassers as to how the vote of any precinct shall be counted the matter in dispute shall be forthwith reported by said board to the judge of the circuit court in a brief written statement setting forth the grounds of disagreement together with all papers concerning the matter, and such judge shall summarily determine said dispute, and direct how such vote shall be counted, and such determination shall be final as regards the action of said board of canvassers.

6275d. Election returns, inspector and clerks.-10. It shall be the duty of each inspector of elections as soon as the certificates required by law to be signed by the precinct election boards have been signed, to deliver the same with one of the lists of voters and one of the tally papers containing the vote of the precinct for all state, district and county officers voted for and with the bags required by law to be returned by said inspector to the clerk of the circuit court at the court house for the use of the board of canvassers, and in city elections to the city clerk, and that there may be no delay in the canvassing of the vote of any county or city it is declared to be the duty of the clerk to keep the clerk's office open all night upon the night of any election at which county or city officers are voted for.

6275e. Township papers.-11. The tally papers for township elections shall be kept separate and apart from those upon which are recorded the votes cast for candidates for state, district and county offices, and the vote for township offices shall be canvassed as heretofore provided by law. Provided, however, That in all townships having more than ten (10) voting precincts the vote thereof for township officers shall be canvassed by the county board of canvassers as herein provided for all county elections.

6275f. Petition for nomination.-12. No name upon any petition for nomination shall be considered by the city or county board of election commissioners unless the same be signed by the petitioner in person or by his mark duly attested, and no petition for nomination shall be effectual to authorize the name petitioned for to appear upon the official ballot unless the signatures of such petition to the number required by law shall be duly acknowledged before some officer authorized to take acknowledgments.

Elections can be contested only on the grounds specified by statute, and the statement of contest must specify particularly each cause for contest. Borders v. Williams, 155 Ind. 36.

The statute providing for the contest of the election of persons to office does not apply to the contest of an election on the question of constructing free gravel roads. Strebin v. Lavengood, 163 Ind. 478.

3317. Subpoenas, trial, practice.

When the cause of contest is a failure of the election officers to count ballots cast for the contestor in a designated precinct, it is error to admit in evidence ballots cast for the contestor in another precinct which were not counted for him. Borders v. Williams, 155 Ind. 36.

What are to be considered as distinguishing marks on ballots so as to justify their rejection by a board of election canvassers. Borders v. Williams, 155 Ind. 36; Tombaugh v. Grogg, 156 Ind. 355.

[Acts 1903, p. 278. In force April 23, 1903.]

6329. Purchasing machines.-4. The board of commissioners of every county in this state in which is located a city having a population of thirty-six thousand or more, according to the last preceding United States census, shall and the board of commissioners of all other counties in this State may, adopt and purchase or procure for use in the various precincts of the county, any voting machine approved in the manner above set forth in this act by the voting machine commission, and none other: Provided, That the board of commissioners shall purchase or procure no voting machine unless the party or parties selling it shall guarantee, in writing, to keep the machine in working order for not less than five (5) years without additional cost to the county, and give a bond conditional to that effect; but it shall be the duty of such board of commissioners to adopt and purchase or procure no such machine unless they are themselves satisfied that it complies with the requirements of section 3 of this act, and that it is thoroughly reliable and correct in its operation, readily understood and operated, can not be fraudulently manipulated, and will unquestionably maintain the secrecy of the ballot. If it shall be impossible to supply each and every election district with a voting machine, or voting machines, at any election following the adoption of such machines in a county, as many may be supplied as it is possible to procure, and the same shall be used in such pre