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Rose v. Jeffersonville (Ind.)..

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Central Hudson Gas & Electric Co. v.
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Union Sanitary Mfg. Co. v. Davis (Ind.
App.)

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Union Traction Co. of Indiana v. McVey
(Ind.)

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State Liability Board of Awards, Snyder v. (Ohio).

268

State Public Utilities Commission v. Chicago & W. T. R. Co. (III.)..

325

State Public Utilities Commission v. Romberg (Ill.).

191

State Savings & Trust Co. of Marion
County, Crittenberger v. (Ind. App.)... 225
Stauffer v. Koch (Mass.).

Stehr, People v. (N. Y.).

Stephens v. Hoffman (Ill.).

Stevens, State v. (Ind. App.).

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Stevens, Vandalia R. Co. v. (Ind. App.)..1001
Stimson v. Krueger (Ind. App.)..
Stitt, People v. (Ill.)...
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THE

NORTHEASTERN REPORTER

VOLUME 114

(185 Ind. 326)

CITY OF SHELBYVILLE v. ADAMS.
(No. 22991.)

(Supreme Court of Indiana. Nov. 10, 1916.) APPEAL AND ERROR 773(5)—Brief-FAILURE OF APPELLEE TO FILE-REVERSAL.

Where, on an appeal presenting the question of validity of a city ordinance and involving matters of great public concern, appellee filed no brief, the judgment will be reversed, with instructions to set aside ruling in favor of appellee and for resubmission of the same. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3110; Dec. Dig. 773(5).]

Appeal from Circuit Court, Shelby County; Alonzo Blair, Judge.

Action by the City of Shelbyville against William Adams. From judgment for defendant plaintiff appeals. Reversed, with instructions.

R. W. Harrison, of Shelbyville, for appellant. Wray & Campbell, of Shelbyville, for appellee.

MORRIS, J. This appeal presents the question of the validity of a city ordinance, and involves matters of great public concern. Appellee has filed no brief, and, because thereof, the judgment is reversed, with instructions to set aside the court's ruling on appellee's demurrer, and for a resubmission of the same. See Burroughs v. Burroughs (1913) 180 Ind. 380, 381, 103 N. E. 1, and authorities cited.

(185 Ind. 305)

EVISTON, County Auditor, v. STATE ex rel. HARTER. (No. 23175.)

(Supreme Court of Indiana. Nov. 2, 1916.)

registration of voters (Acts 1915, c. 126), ordered a complete registration on account of the destruction of the pollbooks of a precinct, his decision was not so palpably wrong as to warrant interference therewith by mandamus to compel him to place on the registration books the name of one who failed to register, but whose name had been on the destroyed books, especially where the remedy was first invoked after the registration period had ended. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 151; Dec. Dig. 74(2).]

3. MANDAMUS 74(2)

REGISTRATION OF VOTERS-DETERMINATION OF AUDITOR.

As the registration law (Acts 1915, c. 126) invests the county auditor with the primary duty of determining the necessity of a complete new registration of voters, his determination that such complete registration be had, though erroneous, if acted on in good faith by the proper election officers, could not be assailed by mandate, after the registration period had ended, to compel him to place on the registration books the name of a voter, registered for a prior general election, the pollbooks of which had been destroyed, who failed to register.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 151; Dec. Dig. 74(2).] 4. ELECTIONS 113-REGISTRATION OF VOTERS-ATTACK OF DETERMINATION OF COUNTY AUDITOR.

Where a county auditor determined that a complete registration of voters was unnecessary, notwithstanding the books of a precinct had been destroyed, and a supplemental registration only was held, after the end of the registration period no voter of the precinct could be heard to complain that complete registration was necessary.

[Ed. Note.-For other cases, see Elections, Cent. Dig. 109; Dec. Dig. 113.]

Appeal from Circuit Court, Huntington County; Wm. D. Hamer, Special Judge.

Mandamus by the State, on the relation of Heber P. Harter, against Ovid E. Eviston, From a Auditor of Huntington County. judgment for relator sustaining demurrer 1. ELECTIONS 106-REGISTRATION OF VOT-to the answer, defendant appeals. Judgment reversed, with instructions to overrule demurrer.

ERS-DUTY OF AUDITOR.

It was the duty of the auditor of a county, previous to issuing notice of the time and place of the session of registration boards, to decide whether complete or supplemental registration was necessary.

[Ed. Note.-For other cases, see Elections, Cent. Dig. 103; Dec. Dig. 106.] 2. MANDAMUS 74(2) REGISTRATION OF VOTERS-DECISION OF COUNTY AUditor. Where a county auditor, following the interpretation of the committee appointed by the Governor to construe the registration law, as amended in 1915 to provide for a permanent

Cline & Cline and C. W. Watkins, all of Huntington, and A. G. Cavins and E. M. White, both of Indianapolis, for appellant. C. K. Lucas, of Huntington, for appellee.

MORRIS, J. Mandamus action by appellee against the appellant. The complaint, among other things, alleges that relator is, and continuously has been for more than

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
114 N.E.-1

two years, a bona fide resident of precinct numbered 3, in Huntington township, in Huntington county; that in 1914 he duly registered for the general election of that year, and voted at such election; that his name does not appear on the 1916 registration books of said precinct; that on October 11, 1916, he appeared before appellant auditor and filed his own affidavit to the effect that he registered and voted in the precinct in 1914, and also filed the affidavits of two freeholders of the precinct to the effect that he had resided continuously in the precinct during the past two years; that he thereupon demanded of appellant that his name be entered on the registration books of the precinct; that the demand was refused. Appellant filed an answer, which, among other things, avers that the pollbooks of said precinct, of the 1914 election, were destroyed previous to September 24, 1916, by the clerk of the circuit court; that there was no other official list of the persons who voted, at the 1914 election, in the precinct; that 15 days previous to October 9, 1916, he determined and decided that, because of such facts, the registration records of the precinct were unfit to be used in the 1916 registration, and that it was necessary to have a complete registration, in the precinct, on October 9, 1916, of all the voters thereof; that, pursuant to such determination, statutory notices were published and posted of a complete registration; that a complete registration was had on October 9th, and relator did not register during the session of the board, either personally or by affidavit. The trial court sustained a demurrer to the answer, and appellant declined to further plead.

Our registration law was amended, in 1915, so as to provide for a permanent registration of voters. Acts 1915, p. 530. As applicable to the election of 1916, it contemplat

ed the use of the 1914 registration books as a basis, and the elimination therefrom of the names of those not entitled to vote in 1916, and adding thereto, by supplemental registration, the names of those acquiring the right to vote by moving into the precinct, reaching the age of 21 years, etc. Section 1 of the amended act contains this proviso:

*

* Provided, that in the event that the registration books of any precinct shall have been destroyed, or mutilated, or are inaccessible, or are for any other reasonable cause unfit to be used, there shall be a registration of all voters resident within such precinct, and every voter who is a resident of any such precinct shall be required to appear in person at a session of the registration board and announce his name, and present his application and be duly registered, at some session of the registration board, prior to the general election. Acts 1915, p. 530.

*

The act requires that a voter, who duly registered in 1914, but failed to vote at the election of that year, may not vote now without again registering. Section 8 of the act

"The names of the registered voters who failed to exercise the right of suffrage at the last ed by comparing the registration books used for general election next preceding shall be determinthe identification of voters and the books kept by the poll clerks at the last general election next preceding."

Section 6 of the act requires the county auditor to give 10 days' notice of the time and place of the session of registration boards, and provides for two kinds of notice, one where the registration is supplemental, and the other where complete. The statutory form of the latter is as follows:

"Every voter of the precinct is required to register at the session of the board, unless prevented by sickness of himself, or his unavoidable absence from the county, or by reason of his being quarantined. If he fails to so register he shall have no right to vote at the November election."

Previous to August 1, 1916, the Governor of this state appointed three experienced lawyers to construe the registration law as amended in 1915. The chairman of the Democratic, Republican, and Progressive State Central Committee each nominated one of the committee afterwards selected by the Governor.

This committee reported to the Governor, and its report was concurred in by the three state chairmen and published under the authority of the State Board of Elec

tion Commissioners. Similar committees

have been heretofore appointed, and their interpretations of new election laws have Parvin v. Wimberg (1891) 130 Ind. 561, 30 been carefully considered by the courts. See N. E. 790, 15 L. R. A. 775, 30 Am. St. Rep. 254. The report of this committee (1916) shows that, as it construed our registration law, a complete new registration of all voters destroyed, because, as it construed the law, was required where the pollbooks had been there would otherwise be no legal way to

purge the registration books of the names of persons who registered in 1914, but did not that this construction of the law was adopted vote at the subsequent election. It appears by appellant, and he issued the statutory notice for a complete new registration. Such registration was held on October 9th, and relator failed to register, and failed to make any objection to the method pursued until after the legal adjournment of the board. On October 11th when the registration period was ended, he sought to have his name entered on the registration books, on a theory inconsistent with that adopted by the auditor and acted on by the registration board and

voters.

[1] We do not deem it necessary to discuss at length the proper construction of the law. It was the duty of the auditor, previous to the issuance of notice, to decide whether complete or supplemental registration was necessary. He made a decision which relator claims was erroneous, and not binding on him, but relator stood by, notwithstand

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