Bishop v. State ex rel. Griner

• Decision Date: 04 January 1898
• Citation: 48 N.E. 1038,149 Ind. 223
• Parties: BISHOP v. STATE ex rel. GRINER, Pros. Atty.
• Court: Indiana Supreme Court

149 Ind. 223

48 N.E. 1038

BISHOP

v.STATE ex rel.

GRINER, Pros. Atty.

Supreme Court of Indiana.

Jan. 4, 1898.

Appeal from circuit court, Jay county; J. W. Headington, Judge.

Action by the state of Indiana, on the relation of Daniel E. Griner, prosecuting attorney, against Peter L. Bishop. From a judgment for plaintiff, defendant appeals. Reversed.

John M. Smith and Frank H. Snyder, for appellant. D. T. Taylor and D. E. Griner, for appellee.

JORDAN, J.

This action was prosecuted in the lower court upon information, in the name of the state, on the relation of the prosecuting attorney, for the purpose of ousting the appellant from the office of township trustee. A judgment of ouster was rendered, from which appellant prosecutes this appeal. The errors assigned are: (1) That the court erred in overruling a demurrer to the information; (2) error in sustaining a demurrer to the answer.

The information charges, substantially, that the defendant, Peter L. Bishop, at the November election of 1894, was elected township trustee of Bearcreek township, in Jay county, Ind., for a term of four years, and that on the 6th day of August, 1895, he duly qualified as such trustee, and entered upon the discharge of the duties of the office; that subsequently, on the 9th day of October, 1896, the defendant was duly appointed and commissioned, by the postoffice department of the United States, postmaster at the village of Bryant, in said county of Jay, for a term of four years, and duly qualified as such postmaster at said time, and entered upon the discharge of the duties thereof, and from said day on has continued to hold said office of postmaster, and discharge the duties thereof. By reason of his accepting and entering upon the discharge of the duties of postmaster at Bryant, it is charged that he forfeited and surrendered the office of township trustee, and the prayer is that he be ousted therefrom. The state bases its right to expel appellant from the office in question on section 9 of article 2 of the constitution, which is as follows: “No person holding a lucrative office or appointment under the United States, or under this state, shall be eligible to a seat in the general assembly; nor shall any person hold more than one lucrative office at the same time, except as by this constitution expressly permitted: provided, that officers in the militia to which there is attached no annual salary, and the office of deputy postmaster, where the compensation does not exceed ninety dollars per annum, shall not be deemed lucrative: and provided, also, that counties containing less than one thousand polls may confer the office of clerk, recorder and auditor, or any two of said offices, upon the same person.” The contention of counsel for appellee is that appellant, by accepting the office of postmaster, when he was an incumbent of another lucrative office created by the laws of this state, violated the above provision of the constitution, prohibiting one from holding two lucrative offices; and it is claimed that by this unlawful act he ipso facto surrendered his right to longer hold the office of trustee, and the latter office thereby became vacant. This proposition counsel for appellant to an extent controvert, and they insist that the information is insufficient for its failure to negative the exception in section 9, supra, which provides that the office of deputy postmaster, where the compensation does not exceed $90 per annum, shall not be deemed lucrative. Their insistence is that the pleading, upon any view of the case, must affirmatively disclose that the post office in question does not fall within this exception. Counsel, in their brief, say: “When our constitution was constructed and created, there was one ‘general post office at Washington, D. C.,’ and the postmaster general was in charge, and denominated ‘postmaster,’ and the different offices throughout the country were known, and in fact designated, as ‘deputy postmasters,’ by the federal statute. This was true until 1876, when the post offices were designated as 1st, 2d, 3d, and 4th class, and the lower class only are appointed by the postmaster general. The others are appointed by the president. In this latter statute the word ‘deputy’ was dropped, and the offices classified as we have said.” In support of their contention they argue that the term “deputy postmaster,” as employed in the constitution means and includes what is now generally denominated “postmaster,” and if the state relies on the positive prohibition of the constitution, to oust appellant from the office of trustee, it must, at least, by proper averments, show that the annual compensation of the post office accepted and held by him exceeded $90, and thereby place him beyond the exception. On the other hand, counsel for the state contend that the information is sufficient, and in support of their contention they say that, at the time of the adoption of the constitution, the various post offices throughout the state were filled by officials denominated and known as “postmasters,” and the term “deputy postmaster,” as used in the constitution, was understood and intended to apply only to a person who was an assistant or deputy of a local postmaster, and for whose acts the latter officer was liable. Therefore they contend that inasmuch as the appellant was a postmaster, and not a deputy postmaster, he in no manner can avail himself of the exception to the prohibition against holding at the same time more than one lucrative office.

We regret that counsel in this appeal have not given us the aid which they should, in our search for a solution of the controversy on the point involved. The inquiry, under the circumstances, is: What is the correct interpretation of the term “deputy postmaster,” as employed in section 9 of article 2 of the constitution? The precise question, so far as we have been able to ascertain, has not heretofore been considered by this court. In the cases of Foltz v. Kerlin, 105 Ind. 221, 4 N. E. 439, and 5 N. E. 672, and Wood v. State, 130 Ind. 364, 30 N. E. 309, the interpretation of the term “deputy postmaster,” as now involved, does not seem to have been presented nor considered.

In order to discover the true sense of the term in question, and thereby determine if the exception in controversy can be of any avail to the appellant in this action, we may properly examine the postal laws of the United States passed by congress prior to the constitutional convention of 1850, which framed our present fundamental law, and learn from such facts if the term “deputy postmaster” was employed therein, and what duties were assigned to such officer. An inspection of the several acts of congress relative to the postal affairs of the national government passed between the years 1789 and 1827 discloses that the term “deputy postmaster” was used therein, and in other acts subsequently passed, and that it was intended to, and did, apply to the persons who were intrusted with the distribution of the United States mail at the various localities where it was delivered. The postmaster general was considered the executive head of the post-office department, and those who served under him at the various towns and cities throughout the country were considered his deputies. See 1 Stat. 733; 4 Stat. 102. By the act of July 2, 1836, the president was authorized, with the advice and consent of the senate, to appoint a “deputy postmaster” for each post office where the commissions allowed amounted to $1,000 and over, for the year ending June 30, 1835. 5 Stat. 80. In the act of March 3, 1845, the term “deputy postmaster” is again used, and likewise in the act of March 1, 1847, wherein certain pay is directed to be allowed to “deputy postmasters” in lieu of commissions previously paid. 5 Stat. 732; 9 Stat. 147. By an act of March 3, 1847, the postmaster general is directed to establish a post office at Astoria, Or., and appoint a “deputy postmaster” to discharge the duties thereof. 9 Stat. 189, 200. By the act of March 3, 1851, the postmaster general was directed to furnish stamps, etc., to all deputy postmasters. 9 Stat. 589. Section 6 of the act of March 3, 1853, provided certain regulations in regard to “deputy postmasters.” 10 Stat. 249, 255. It is apparent, therefore, that the statutes of the United States, passed before and long after the adoption of our constitution, applied the term “deputy postmaster” to each and all persons who were incumbents of, and discharged the duties of, the post offices established at the towns and cities throughout the nation. That these officials, in a legal sense, to a certain extent, were each considered as the deputy of the postmaster general, is evident. In fact, in many of the decisions of the federal courts the term “deputy postmaster” was applied to a person filling a post office, and such officer is said to be the deputy of the postmaster general. Boody v. U. S., 3 Fed. Cas. 860;Postmaster General v. Early, 12 Wheat. 135;U. S. v. Le Baron, 19 How. 73;Ware v. U. S., 4 Wall. 617, 625;Postmaster General v. Furber, 4 Mason, 333, 19 Fed. Cas. 1098. Many other cases may be found to the same effect, but those to which we have referred will suffice for the purpose which we have in view.

Turning to the proceedings of the constitutional convention leading up to the framing and adoption of the section in controversy, and it appears that, after several propositions were made to exempt postmasters where the office did not exceed a certain annual compensation from the term “lucrative office,” the matter of holding more than one lucrative office at the same time was finally referred to the committee on revision and phraseology, and was embodied in the following sections:

“Sec. 6. No person holding any lucrative office or appointment under the United States or this state, shall be eligible to a seat in either branch of the general assembly: provided, that offices in the...