Grieble v. State ex rel. Niezer

• Decision Date: 30 June 1887
• Citation: 12 N.E. 700,111 Ind. 369
• Parties: Grieble v. State ex rel. Niezer.
• Court: Indiana Supreme Court

111 Ind. 369

12 N.E. 700

Grieble

v.State ex rel.

Niezer.

Supreme Court of Indiana.

June 30, 1887.

Appeal from circuit court, Allen county.Morris & Barrett and Bell & Morris, for appellant.

Niblack, J.

This proceeding is based upon an information in the nature of a quo warranto against Adolph Louis Grieble in the name of the state, and on the relation of John B. Niezer. The information gives the court to understand and to be informed that on the seventh day of November, 1882, at a general election held on that day in the county of Allen, in this state, the said Grieble was duly elected auditor of said county of Allen, and that, after having duly qualified, he, on the seventeenth day of that month, entered upon the duties of the office to which he had been so elected; that, under the constitution and laws of this state, the said Grieble was entitled to hold said office for and during the period of four years from the thirteenth day of said month of November, 1882, and until his successor should be elected and qualified; that at the general election held in said county of Allen on the second day of November, 1886, the relator, Niezer, was lawfully elected auditor of that county as the successor of the said Grieble; that the said relator was at the time of his said election, and still is, eligible to the office of auditor to which he was so elected; that on the sixth day of the said month of November, 1886, a commission was duly issued to the relator by the governor in pursuance of his said election, and that on the thirteenth day of said month he, the relator, executed an official bond as such auditor, and took the oath of office required by law; that on the seventeenth day of said month of November, 1886, the relator demanded of the said Grieble that he should surrender said office of auditor, and all the books, papers, and property pertaining to the same, to him, the relator, but that the said Grieble wholly failed and refused, and still fails and refuses, to comply with said demand, and has ever since usurped, and illegally continued to hold, said office, and still continues to hold the same, and to perform the duties pertaining thereto, in violation of the rights and to the prejudice of the relator. Wherefore the relator prays that the said Grieble be ousted from said office, and that he, the relator, may be declared entitled to the possession thereof, and that he may have all other and proper relief.

A demurrer to the information being first overruled, Grieble answered, admitting that he was elected auditor of Allen county on the seventh day of November, 1882, as alleged in the information, but averring that at that time one Martin E. Argo was the incumbent of said office, and that on the seventeenth day of that month the said Argo requested him, the said Grieble, to take immediate possession, and to enter upon the duties of the office; that he, the said Grieble, thereupon informed the said Argo that his term of office would not commence until either the first day of March, or the first day of November, of the year 1883; that the said Argo nevertheless desired that he, the said Grieble, should immediately take possession of the office, which he consented to do, and did at once, continuing ever since in the possession of the same, and in the discharge of the duties thereof, under a claim that his term of office will not expire until the first day of November, 1887, at which time he will be ready to surrender the office to which the relator has been elected, as stated in the information; that the relator's term of office does not begin until said first day of November, 1887.

The relator replied that Argo was elected auditor of said county of Allen at a general election held on the second Tuesday in October, 1878, for the term of four years, commencing on the seventh day of November, 1878, that, after havinggiven bond and qualified as the law required, he, on said seventh day of November, 1878, took possession of the office, and entered upon the discharge of his duties as such auditor, and so continued for the full term of four years thereafter; that after the expiration of his term of office, to-wit, on the seventeenth day of November, 1882, he surrended the office to the respondent, Grieble, who had been, on the seventh day of that month, properly elected to the office as the successor of him, the said Argo, and who had previously given bond and qualified as the auditor elect of said county of Allen; that he, the said Argo, so surrendered the office because his term of office had expired, and because the said Grieble was lawfully entitled to the possession of the office as his successor therein, and for no other reasons; that the said Grieble, as such successor, has held said office ever since the seventeenth day of November, 1882, and for the full term of four years. Grieble demurred to this reply; but, his demurrer being overruled, he elected to stand upon the demurrer, and declined to make further defense. The court thereupon entered judgment in favor of the relator, and ordered Grieble to deliver to him the possession of the office, together with all the books, papers, and property pertaining thereto. Error was assigned upon the overruling of the demurrers to the information and the reply, respectively.

An information in the nature of a quo warranto is the appropriate remedy for obtaining the possession of an office to which a person has been legally elected, and has become duly qualified to hold. It is also the proper remedy for the removal of the incumbent of an office who has usurped and illegally continues to hold it, and both remedies may be sought by the same information. Rev. St. 1881, §§ 1131-1134; 5 Wait, Act. & Def. 259, 263; People v. Forquer, Breese, 104; St. Louis Co. v. Sparks, 10 Mo. 117;In re Strong, 20 Pick. 484;Sudbury v. Stearns, 21 Pick. 148;Lindsey v. Attorney General, 33 Miss. 508;People v. Kip, 4 Cow. 382, and note; Gass v. State, 34 Ind. 425. There is consequently no serious objection to the substantial sufficiency of the information.

The reply raises the question as to when the term of a county auditor either begins, or may begin, under the present constitution of this state, and certain statutes having reference to that subject. Before the adoption of our present constitution, the office of county auditor was only a statutory office. Section 44 of the second article of chapter 7 of the Revised Statutes of 1843 provided that the “county auditor shall hold his office for the term of five years from the first Monday in March next succeeding his election, and until his successor is chosen and qualified.” Rev. St. 1843, p. 188. Section 49 of the same article further provided that, when a vacancy should happen in the office of county...