The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1899-12-09

pers and documents rendered for our con-
sideration competent evidence fer any pur-
pose or are they merely ex parte state
ments which, under the rules of evidence.
are inadmissible to establish any facts?
Are the papers purporting to be amended
certificates from Knox, Johnson, Magofin
and Pike counties and the voluminous rec
ord from the city of Louisville such off,
cial documents as import absolute verify
and therefore competent evidence or are
they extraofficial, ex parte and incompe-
tent as evidence in any court or before any
tribunal where the rules Of evidence OBJ
tain? In considering the questions sub
mitted we must be guided by the rules of
law We cannot depart from the beaten
path, for it is the safe path.
"We consider first the question as to.
whether or not the powers conferred on us
as canvassing board authorized us to ex-
ercise judicial powers. An appeal to the
provisions of the statute ought to furnish
a ready answer to this question. Whatever
powers and jurisdiction the act confers we
may lawfully exercise. Whatever powers
and jurisdiction it has not conferred we
may not lawfully assume to exercise We
mark the limit of our Jurisdiction If the
law omits to clothe this board. sitting as
canvassing board. with jurisdiction and
power to look into and revise election re-
turns as certified by the proper authorities
from the various counties of the State we
cannot write into the law such authority.
We have no right to add TO or subtract
from the plain terms of the statute"
After quoting extracts from the new
election law, defining the powers of the
board, the opinion reads: 1T is evident
from the law that the state board of cleo
tion commissioners when sitting as board
of contest is clothed with powers and juris-
diction which II does not possess and can
not assume to exercise when sitting as at
present in a mere ministerial capacity. AS
a board of contest, it possesses the powers
and functions of a court. 1t may set aside
facie case, and when authorized by the law
and the evidence. cast out precincts or
whole counties and award the certificate to
a candidate other than the one having a
majority upon the face of the returns. But
these are powers which the board can only
exercise when sitting as a board of contest.
We must assume that the Legislature by
the enactment of Section II of the law
which provides for board of contest, in
tended not only TO limit the power of this
body, when sitting as a board of canvas
sers, but to confer all the judicial power
and authority which the board could law
fully exercise, alone upon the board of
contest. To hold otherwise would be to
destroy the entire force of the section,
creating board of contest and comforting
on it responsible duties and large jurisdic-
ton.
CANDIDATES MAY CONTEST
This law has carefully guarde the rights
of all candidates.; while they may not con-
test their rights to an office before the can
vassing board, they unquestionably have
such right before the board of contest
The remedy is plain and speedy. Every
candidate WHO is defeated on the face of
the returns, may before the tribunal, pro-
vided by law. test the question of his right
to the office, and nothing that the can
vassing board may do or can do, will in any
degree or in any manner whatever affect
his right.
'Such is our construction of the present
law, and we are fortified in the correctness
depreciation which the Court of Appeals of
this State has placed upon kindred stat
utes. but by all the law or the land so far
as We have been able TO examine it. The
board, under the present law, as a can
vassing board possesses no other or greater
powers than those conferred on the Gov
ernor. attorney general and secretary of
state"
To emphasize the correctness of this con-
clusion, the writer's of the majority opin-.
ion quote largely from the statute and nu-
merous authorities. and then proceed as
follows: But the question to whether
or not the powers and jurisdiction Of this
board. as at present organized, are purely
ministerial or both ministerial and Judi
cial is not of supreme Importance in this
proceeding when we come TO consider the
papers and documents offered as testimony,
and upon which we are requested to act
These papers are clearly incompetent testi-
mony for any purpose, and it would be so
held, we apprehend, not only in all courts.
but 1t would be so held by us if we were
now sitting board of contest
IF this board was clothed with unlim-
tied judicial powers it would not consider
the ex parte statements and extraofflcial
certificates here submitted. 1t could not do
so without violating the most familiar rules
of evidence
Every citizen is entitled to his day in
court. He cannot be deprived of life, lib
erty or property except by the due process
of law. 1t is not due process OF law If he
is not given an opportunity to meet his ad-
versary and to cross-examine the witness
offering against him and to produce testi-
mony in his own behalf. 1t would be mon
the face of the returns TO have been
elected TO an Office of high or low degree
could be deprived of that Office on mere
ex parte afidavits which he had never had
an Opportunity to inspect, and before he
had ueen given any opportunity to offer
evidence in his own behalf Such is not,
never was and never viii be the law in any
civilized state in the world. What we have
said with respect TO the ex parte affidavits
amended returns from certain counties,
which in every instance only purport to
have been signed by a majority of the
country boards and which do not certify
any fact authorized by the law to be cer-
titled TO this board.
USE OF MILITIA CONDEMNED.
'It is contended by counsel for the DEM
ocratic candidates that the military force
Of the State was wrongfuhy called out on
the day of the recent election with a view
of intimidating the citizens and voters OF
crtx x,fI Tor ,I