Albaugh v. State ex rel. Titsworth
| Decision Date | 17 June 1896 |
| Docket Number | 17,790 |
| Citation | 44 N.E. 355,145 Ind. 356 |
| Parties | Albaugh v. State ex rel. Titsworth |
| Court | Indiana Supreme Court |
From the Benton Circuit Court.
Reversed.
E. F McCabe, for appellant.
Fraser & Isham, for appellee.
The appellant, who had been previously elected to the office of township trustee of Oak Grove township, Benton county, was holding over, because of the death of one elected as his successor, but who had failed to qualify. On the 6th day of November, 1894, the relator was duly elected to said office. On the 16th day of November, 1894, the relator's agent visited the office of the auditor of said county, taking the certificate of the relator's election and exhibiting it to said auditor. At the same time said agent had in his possession a document signed by the relator and others, claimed to have been a bond for the faithful discharge of his duties as trustee of said township. Said agent had also, at the same time, a written oath, taken by the relator, as to the faithful discharge of his duties as such trustee. This document said agent did not exhibit to said auditor, but he did inquire as to when the auditor "was going to approve trustee bonds," telling him at the same time that he had Titsworth's bond, and the auditor, who was of the opinion that the term of office of trustees, then recently elected, would not begin until the following August, answered that "he would not approve any bonds of trustees until along the next summer." The document mentioned was not left with or tendered to the auditor, but was subsequently lost by said agent. On the 27th day of June, 1895, the relator filed with said auditor a bond and oath of office, to the approval of that officer, and on August 15, 1895, instituted this proceeding in quo warranto to oust the appellant from said office of trustee, and to recover the emoluments of said office. In addition to the facts already stated, it was shown, upon the trial, that the appellant had maintained the view, which he had stated after the election in 1894, that he was entitled to occupy the office in question until in August 1895. The relator's certificate of election gave the date of the beginning of his term of office as "the first Monday in August, 1895." It is a matter of general notoriety that the prevailing impression was that the terms of office of trustees then elected would begin on the first Monday in August, 1895, under and pursuant to the act of March 9, 1889 (Acts 1889, p. 344), notwithstanding the act of March 2, 1893 (Acts 1893, p. 192), which changed the time for elections to such office from April to November. It is a fair inference also, from the circumstances and the conduct of the relator, that it was his opinion that the term of the office to which he had been elected, did not begin until the first Monday in August, 1895. It is now conceded, however, that the term of said office might have begun at any time within ten days after said election, upon the qualification of the relator therefor.
The appellant's theory of the controversy is, that the relator, by his failure to file his bond and take the oath of office within such period of ten days after said election, waived his right to do so later, and on the 27th day of June, 1895, and that he, the appellant, was entitled to hold over further because of such failure by the relator.
The lower court denied this theory, and ousted the appellant and gave judgment against him for $ 338.00, the emoluments of said office from the 16th day of November, 1894, to the time of the trial.
The statute provides, that "If any officer of whom an official bond is required shall fail, within ten days after the commencement of his term of office and receipt of his commission or certificate, to give bond in the manner prescribed by law, the office shall be vacant." R. S. 1894, section 7542. Upon this provision the appellant predicates his theory of the case.
This provision of the statute is, with respect to the question here involved, the same that was passed upon in Board of Commissioners, etc., v. Johnson, 124 Ind. 145 (7 L.R.A. 684, 24 N.E. 148). That provision was to the effect that "upon failure to * * * to give such bond, his office shall become immediately vacant." It was held that the requirement was directory, and not mandatory. It was said: ...
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