Tremain, C. J.
This is an original action filed in this court by the State of Indiana on the relation of Joseph M. Robertson et al. against seven circuit courts and the judges thereof, to wit: Lake, Vigo, Vanderburgh, Marion, Franklin, Clark, and Vermillion counties. By permission, and upon their petition, the opposing candidates to the relators have been permitted to intervene as respondents.
It is alleged in the petition that a general election was held in the State of Indiana on November 8, 1938, for the purpose of electing state officers; that the relators and respondents received votes as follows:
Treasurer of State
Relator Votes Respondent Votes
Joseph M. Robertson____776,280 Arthur H. Berndt......771,875
Superintendent of Public Instruction
Floyd I. McMurray.....780,062 Norman J. Lasher......768,983
Clerk of the Supreme and Appellate Courts
Paul Stump...........779,074 Paul C. Wetter.........770,428
Judge Supreme Court, First District
Curtis G. Shake........775,606 Arthur Rogers ........773,225
Judge Supreme Court, Third District
H. Nathan Swaim......775,344 Edgar M. Blessing.....772,187
Judge Supreme Court, Fifth District
Michael L. Fansler.....774,629 Harry L. Crumpacker.. .771,879
Judges op Appellate Court, First District
Relator Votes Respondent Votes
A. Jewel Stevenson.....776,067 Chauncey W. Duncan.. .771,067
William H. Bridwell____776,453 Edgar Durre..........769,832
Judges op Appellate Court, Second District
Huber M. DeVoss......774,037 Dan C. Flanagan.......772,376
Harvey J. Curtis.......775,701' Fred E. Hines.........770,814
Auditor op State
Frank G. Thompson____776,992 Louis R. Markum.......771,408
The vote of the respective candidates was certified to the Secretary of State, who issued certificates of election to the successful candidates, relators herein, executed by the Governor of the state.
T. Joseph Sullivan, John W. Gerdink, John W. Spencer, Jr., Earl R. Cox, Roscoe C. O’Byrne, George C. Kopp, and G. Edward Bingham are respectively the judges of the circuit courts named. The defeated candidates for said offices, on the 18th and 19th days of November, 1938, filed in said seven circuit courts separate petitions for a recount of the votes cast in each of said counties at the November election, 1938. Copies of the petitions filed by said respective candidates are filed as exhibits to the petition filed herein.
It is alleged that the circuit courts and the judges thereof, named as respondents herein, are without jurisdiction of the subject-matter of said recount proceed-' ings instituted in said respective courts by the defeated candidates for the offices hereinbefore set out, for the reason that the petitions filed in said Vermillion, Franklin, and Clark Circuit Courts allege that said recounts and corrections of the vote cast for the respective offices at said election are sought pursuant to the provisions of chapter 47 of the Acts of the General Assembly of the State of Indiana adopted at a Special Session in 1881; that said statute does not authorize or contemplate a recount of votes cast for state officers by a proceeding filed in the circuit court; that said defeated candidates
have not asked in their petition for a recount of all the votes cast in the State of Indiana for the offices for which they were candidates at said general election; that, if it should be held that chapter 47 of the Acts of 1881 authorizes a recount, then the statute is unconstitutional and void for the reason that the General Assembly has no constitutional authority to enact special or local laws applicable to less than all counties of the state in respect to a determination of the result for a general election for state offices, and has no authority to delegate to a defeated candidate the right to select counties in which such special proceedings for recounts may be instituted; that in the petitions for recounts filed by the defeated candidates in Vanderburgh, Vigo, Lake, and Marion Circuit Courts, it is alleged that the proceedings are filed pursuant to the provisions of chapter 94 of the Acts of the General Assembly of the State of Indiana of 1921, sections 29-2111 to 29-2120 Burns’ Ind. St. 1933 (§§7398 to 7407 Baldwin’s 1934); that said act is unconstitutional and void for the reason that it violates sections 22 and 23 of Article 4 of the Constitution of the State of Indiana; that said statute attempts to provide for a recount of only part of the votes cast for the state officers at said election; that it attempts to provide for part only of the paper ballots cast at said general election, without providing for a recount of all the paper ballots cast throughout the state; that said chapter 94 of the Acts of 1921 is not general and uniform in its operation throughout the state, in that it attempts to make the certificate of a recount of the votes cast on paper ballots, in counties where both voting machines and paper ballots for state officers are used, prima facie proof of the facts therein recited in any contest proceeding and conclusive for all other purposes, notwithstanding there is no other statute in the state providing that the certificate of any such
recount shall be prima facie evidence thereof in any contest proceeding where paper ballots only are used; that said chapter 94, Acts 1921, is not of general and uniform application throughout the state.
It is alleged that the respondent circuit courts are attempting and threatening to assume jurisdiction in said respective causes and will do so unless prohibited by this court. Other allegations allege the necessity of issuing the temporary writ of prohibition which heretofore has been issued. The respondents have answered the petition and the cause is now before this court for final determination.
Each of the petitions for the recount, filed as an exhibit to relators’ petition herein, alleged that each “petitioner desires to contest said election for said office by the remedy or remedies provided by law and available to your petitioner for contesting said election for said State Office.”
The only question involved under the Constitution and the laws of this state is whether a circuit court has jurisdiction to entertain a proceeding for a recount and contest of an election of state officers. The jurisdiction and duties of a circuit court of the State of Indiana, and the methods prescribed by which the court shall exercise its jurisdiction, must be conferred by constitutional and legislative authority. If the Legislature has failed to prescribe a method for the recount and contest of the election of state officers by a proceeding instituted in a circuit court in the state, then such court is wholly without jurisdiction. The burden is upon those seeking such recount and contest proceeding in the circuit court to point out a law expressly vesting that authority in such courts. The common law made no provision for recount and contest of the ballots cast at an election. It is a familiar rule that statutes granting jurisdiction which was not given at
common law are to be strictly construed, and one seeking to take advantage of such statute must bring himself clearly within its spirit as well as within its letter.
Martin
v.
Schulte
(1933), 204 Ind. 431, 182 N. E. 703, and cases there cited.
Sutherland’s Statutory Construction, Vol. 2, pp. 1048, 1049, secs. 565, 566, announces the rule as follows:
‘.‘A statutory remedy or proceeding is confined to the very case provided for and extends to no other. It cannot be enlarged by construction; nor be made available or valid except on the statutory conditions, that is, by strictly following the directions of the act.
“A party seeking the benefit of such a statute must bring himself strictly not only within tbe spirit but its letter; he can take nothing by intendment.”
It is not doubted that a recount proceeding is ministerial and not judicial. The proceeding is a special statutory one. The respondents have the burden to point out a statute expressly authorizing the procedure which they have adopted and “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.”
Martin
v.
Schulte, supra,
page 435;
Williams
v.
Bell
(1915), 184 Ind. 156, 110 N. E. 753.
In
Layman
v.
Dixon
(1917), 63 Ind. App. 501, 114 N. E. 698, that court had under consideration a petition for a recount only of the ballots cast for the office of township trustee. The court there held that it is only when a candidate desires to contest an election that he may invoke the aid of the statute. The court pointed out that the Legislature expressly provided that the petition to .recount must show “that he (the candidate) desires to contest such election.” In the instant case the respondents, both in their brief and oral argument, appar
ently claim the right to recount only, but, nevertheless, allege in their petitions that they desire to contest the election. This allegation is expressly provided by the statute and held to be necessary by the authorities cited above.
The defeated candidates, respondents herein, assert that as to the contest in the three counties where the vote was by paper ballot only, the authority is expressly granted to them to demand a recount, in the counties selected by them, in a proceeding filed in the circuit court; that in the four counties where both voting machines and paper ballots are used, the same authority is granted by statute. In the first three counties, the authority, they assert, is granted by sections 61 to 65 of chapter 47 of the Acts of 1881, sections 29-2101 to 29-2105 Bums’ Ind. St. 1933 (§§7388 to 7392 Baldwin’s 1934), and as to the last four counties, the authority is granted by chapter 94 of the Acts of 1921, sections 29-2111 td 29-2120 Burns’ Ind. St. 1933 (§§7398 to 7407 Baldwin’s 1934).
As to the first proposition, the 1881 act provides (section 61, section 29-2101 Burns 1933, §7388 Baldwin’s 1934) that “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.” The contention is that under this provision authority is granted to any candidate for a state office to proceed as provided by the statute for a recount of the ballots in the county chosen by the defeated candidate, and that the statute grants such authority without a recount of all the votes cast for the candidate in the state at large.
The statute uses the term “any candidate.” The contestors assert that the word “any” is all-inclusive and
embraces candidates in any unit—that is, town- ship, county, municipality, district, or the state, who may demand a recount of the ballots; and that the term is broad enough to permit any candidate to demand a recount of any part or portion of the unit in which the recount is had. There is no other reference in the statute with respect to state officers demanding a recount by a proceeding filed in a circuit court of the state. If this court is to give to the word “any” the broad construction placed upon it by the contestors, the same broad construction must be applied to the provision which immediately follows, that the recount must be “of the ballots cast at such election.”
“The ballots”
must be construed as all-inclusive as is the word “any,” and to include all of the ballots cast in the entire state. By giving the broad construction to both parts of this statute, the conclusion inevitably follows that the recount must be of all ballots cast in the state as a whole, or, in the case of the recount in lesser units, the recount must be of all the ballots cast in the entire unit. When the statute provided for a recount “of the ballots cast at such election,” it did not mean ballots cast in one precinct, one township, or one county, when applied to a recount upon the part of a candidate for a state office to be elected by the people at large. The contestors will not be permitted to place a broad construction upon the word “any,” used in the beginning of section 61 and a narrow construction upon the latter provisions of the same section. Other provisions of the statute are incompatible with the view that the Legislature intended the act to apply to a recount of less than the whole unit. “Each of the candidates may be present during said recount.” (Section 63, chapter 47, Acts 1881, section 29-2103 Burns’ 1933, §7390 Baldwin’s 1934.) He could not be present in 92 counties of the state in event suits were filed in each. Section 69, chapter 47, Acts 1881,
section 29-2204 Burns 1933, provides that each party-may be present, etc., in a hearing before the legislative committee.
The same reasoning with reference to the Act of 1881 applies with equal force to chapter 94 of the Acts of 1921, sections 29-2111 to 29-2120 Burns 1933 (§§7398-7407 Baldwin’s,
supra).
That act does not contain an express grant to the courts of the state .to entertain a petition for recounting a portion of any voting unit. There is no provision in any of the statutes pertaining to elections in this state whereby a candidate for office may petition a circuit court for a recount in a township of one precinct only, or in a county of one township or one precinct, or in a municipality of one precinct or one ward, or in the State of Indiana for a recount in seven counties, one county, one municipality, one township, or one precinct. On the contrary, the legislative enactments upon the subject clearly indicate the intention upon the part of the Legislature to recount all ballots .cast at such election for or against the candidate demanding the recount. A search of the many decisions of this court involving recount and contest of elections reveals that in 122 years of its history it has never been contended or presented for judicial determination that a defeated candidate may demand and be entitled to a recount of less than the entire unit involved in the election. That is a proposition unheard of and unknown to the law in this state.
The respondents assert in Proposition II of their brief that “the recount statutes of the State of Indiana are an integral and component part of the election laws of the state.” In Proposition IX they say that “the recount statutes are general laws and are not local or special laws.” In this assertion they are correct. But, notwithstanding their premise that the election laws are general and not special in their application, they
assert a right to recount the ballots cast in seven counties, selected by them, in a state election, and from a recount of the seven counties only, ask that a candidate for a state office may be declared defeated or elected as revealed by that recount. As authority for their position they cite chapter 94 of the Acts of the General Assembly of 1921, sections 29-2111 to 29-2120 Burns’ Ind. St. 1933, and assert that such proceeding is authorized. An examination of that chapter reveals the following title:
“Am act to provide for recount and correction in township, city, county, circuit, district and state elections where voting machines and paper ballots are used.”
The title of an act may limit the scope of an act, but it cannot broaden or extend the effect of the act as expressed in the body thereof.
Section 10 of this act, section 29-2120 Burns’ Ind. St. 1933 (§7407 Baldwin’s Ind. St. 1934), reads as follows:
“The provisions of this act shall not be construed as repealing or in conflict with any other laws now in existence upon the subject of recount of votes cast at any election whether cast on machines or by paper ballots but shall be construed as supplemental to any such law.”
Since the act of 1921 is supplemental, it should be construed, if possible, so as not to be inconsistent with the act of 1881.
Section 1 of the Act of 1921 provides “for a recount of the votes cast within the bounds of the county wherein such court has jurisdiction.” If this language must be construed as providing for a partial recount of the votes cast for a candidate elected in a state-wide election, the act is unconstitutional, for it is local and special, since there is no act providing for such a partial
recount in counties where paper ballots are used. In construing statutes, courts will seek a construction that avoids unconstitutionality.
Section 2 provides for the filing of a petition by an unsuccessful candidate, which must contain an allegation “that he desires a recount and correction of the votes cast on said machine, or machines, and the paper ballots cast, at said election for the office for which he was a candidate.” If this last-quoted clause is construed as meaning
all
“ballots cast at said election for the office,” and it is construed with the provision of section 1, providing “for a recount of the votes cast within the bounds of the county where such court has jurisdiction,” and as limiting the jurisdiction to a recount in cases where “the votes cast within the bounds of the county” are
all
of the “ballots cast at said election for the office,” the statute would be limited to recounts in elections for offices, all the votes for which are cast within the confines of one county. That much jurisdiction is clearly conferred by the statute, and a construction limiting the language used to such situations avoids unconstitutionality.
Such a constitutional construction does not authorize the thing which the respondents are asserting jurisdiction to do.
By section 10 the 1921 act is made a part and parcel of all other election laws then existing. It is pointed out in
Jordan
v.
Peacock
(1926), 84 Ind. App. 86, 150 N. E. 60, that the 1921 act provides for a recount of votes when both ballots and voting machines are used, and that the act is supplemental to and does not repeal existing laws upon the subject of recount of votes. Also see
Humphries
v.
Peacock
(1928), 88 Ind. App. 349, 164 N. E. 27. It is as much a part of the 1881 act as if
it had been contained in it from the date of its enactment.
Since the two acts must be read together, it will be noted that there remains the special provisions provided by the act of 1881 for recount and contest of elections, one by justices of the peace, others by commissioners, courts, and Legislature, depending upon the voting unit involved. Among the special provisions provided is the one specifying the manner of a contest for a state office before the General Assembly. There is nothing in. the act of 1921 to limit or abridge that provision of the 1881 act. In the enactment of the 1921 act the Legislature evidently had in mind all of the provisions of the 1881 act and entertained a definite purpose to make the 1921 act supplemental thereto. Knowing that the 1881 act made specific provisions for the recount and contest of a state election, it was entirely proper and necessary to embody in the title and body of the statute a reference to “state elections.” This phrase added nothing to the law as then existing, but since the 1921 act, by its own terms, became a part of the 1881 act and must be read in connection with all of the provisions of the 1881 act, it necessarily follows and seems perfectly clear that the provision for the legislative procedure in reference to state offices remained and is unmodified and unlimited.
The respondents have called attention to no specific statute authorizing the procedure adopted by them, nor have they produced a decision of any court in this state upholding their contention. In the absence of such statute or court ruling they have cited, and, of course, rely upon, an opinion of the Attorney General of the State of Indiana given to the Legislature then in session under date of February 14, 1925, as found in Reports and Opinions of Attorney General of 1925 and 1926, page 671. This opinion was requested by the Legislature which then had before it a contest for the office of
Judge of the Supreme Court. The Legislature asked the Attorney General for an interpretation of the 1881 act.
The question before the Legislature was presented by a verified petition executed by an elector of the state, who alleged that in the general election of 1924 George K. Denton and Benjamin M. Willoughby were opposing candidates for the office of Judge of the Supreme Court of the State of Indiana; that a tabulation of all the votes cast in the state was certified to the Secretary of State, and by the Secretary of State to the Governor. The total tabulation revealed that Willoughby received 601,861 votes and Denton received 601,860 votes; that a certificate of election was issued by the Secretary of State and the Governor to Judge Willoughby. The petitioner alleged that there had been irregularity and malconduct of the boards of canvassers and the clerks of the circuit courts in six counties, naming them, and specifically alleged the fact concerning the alleged irregularity and misconduct in that the clerks of the respective six counties had certified to the Secretary of State totals of the vote cast in those counties which were incorrect, and, if corrected, Mr. Den-ton would have received a plurality in the entire state of 935 votes. There was a prayer that the Legislature then in session should proceed to hear and try the case as provided by section 69 of chapter 47 of the Acts of 1881, which reads as follows:
“Each house shall choose by a
viva voce
vote seven members of its own body, and the members thus selected shall constitute a committee to try and determine such contested election, and for that purpose shall hold their meetings publicly, at the capítol, at such time and place as they may designate, and may adjourn from day to day, or to a day certain, until such trial shall be determined; shall have power to send for persons and papers and
to take all necessary means to procure testimony,
extending like privileges to the contestor and the
contestee, and shall report their judgment in the premises to both branches of the General Assembly, which report shall be entered on the journals of the respective houses, and the judgment of such committee shall be conclusive; and if such election be adjudged invalid, such office Shall be vacant.”
The procedure provided by this section was followed. The legislative committee appointed to determine the matter asked the Attorney General for an opinion concerning the law applicable to the case. In an extended opinion the Attorney General reviewed the statute authorizing the procedure and pointed out that it was shown by the certificate of the Secretary of State that Judge Willoughby received one more vote than did his opponent, upon which a certificate of election was issued to him, and he qualified by taking office. After errors had been discovered in the six counties, which, if corrected, would have given the plurality to Mr. Denton, such corrections were made in the respective counties and new certificates were- filed by the clerks of the courts with the Secretary of State. The Attorney General pointed out that the law provided for but one certificate from each county and did not provide for corrections or amendments of the returns. He then said:
“Whether or not there should be opportunities for corrections of returns is purely a question of legislative policy. In Indiana the policy as determined by the legislature is against correction of returns. The legislative reasons for such a policy apparently include the consideration that the opportunity for fraud in changing returns in case of a close vote should not be afforded and that it is better policy to permit errors to go uncorrected on the theory that honest errors will fairly well equalize themselves between contesting candidates rather than to place temptation before certifying officers by providing for the corrections of returns.”
After citing a California case the Attorney General further said:
“Thus it appears that your committee is requested to consider corrected returns when there is no warrant in law for such returns.”
He then pointed out that:
“Where the gist of the charge in specifications is that a candidate who failed to be declared elected received the highest number of votes cast the contestee is entitled to have the question thus presented determined by the best evidence as to what the total vote cast for each candidate actually was. . . . 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.
. . the absence of authority to your committee to grant the relief prayed for, that is, to declare Mr. Denton elected on the theory that he received the highest number of votes in the entire state, forces the conclusion that the legislature did not intend to authorize such a contest.”
The Attorney General then pointed o.ut that the elector who filed the proceedings evidently did so upon a construction of the statute that the legislative committee was authorized to review the election of Denton and Willoughby by a correction of the total votes cast in six counties only of the entire state. The Attorney General said upon that proposition:
“The construction evidently placed on said section (6998) by the elector who filed said specifications would render the same unconstitutional. 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 co-ordinate branch of the government. Such an attempt would violate the constitutional principle on which the government is divided into co-ordinate branches, the chief officers of which are elected by the people, as provided by the constitution; 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.”
Accordingly, the Attorney General advised the Legislature that it was without jurisdiction to entertain the petition filed, and the same was dismissed.
In the instant case the respondents are not only asking a recount and contest in but seven counties of the state, but they are asking this court to write into the statute something that is not there. They ask the court to say that “any candidate for office at such election” may have a recount in a state-wide election by a procedure filed in the circuit court of one county for a recount of the votes of that county only. As pointed out by the Attorney General in the Denton-Willoughby case, the recount of one county might have changed the result, but it would be unavailing in the face of a certificate executed by the Secretary of State to the candidate who received a plurality of all votes cast as shown by the record; that the only manner in which that question can be determined is by a count of all the votes cast in the state. There is as much reason to hold that a candidate for sheriff of a county may legally demand a recount and contest by -counting the ballots cast in one township, or a candidate for mayor by recounting the ballots cast in one ward or precinct. If a candidate for state office may proceed as respondents have in the instant case, he may reduce the number to one county, one township, or one. city ward. The absurdity of such proposition is at once apparent. Before this may be done, new action will have to be taken by the Legislature, which may include an amendment to the Constitution. To say the least, the election laws are
confusing and not coordinate. Without question a revision of the election laws is needed in this state.
By reading the 1881 and 1921 acts together, it is clear that, if a recount is contemplated, it must be had through a contest before the General Assem bly, conducted by a legislative committee, and not otherwise.
Furthermore, in order to follow the respondents’ course, there must be read into the statute a proviso expressly authorizing a recount of ballots cast in a state-wide election by filing a petition in a circuit court for the recount of the ballots cast in that county only. The statute does not now authorize that procedure. It is clear that such statute would be unconstitutional, but, because this case may be decided on other than constitutional grounds, it is unnecessary to discuss that question. The respondents have wholly failed to point to any statute authorizing a partial recount of all the votes cast in any unit, be it township, city, county, district, or state. Unless and until a constitutional statute can be furnished authorizing such procedure, it must be held that the seven circuit courts, respondents hereto, possessed no jurisdiction to hear or determine the matters presented by the several petitions filed asking for a recount of the votes in the particular county.
It is ordered that the temporary writ of prohibition heretofore issued be made permanent, and that each of the courts and the judges, thereof, to wit: the circuit court of Lake, Vigo, Vanderburgh, Marion, Franklin, Clark, and Vermillion counties, be prohibited from hearing and determining the several petitions filed by their corespondents.
Shake, J., and Fansler, J., not participating.