Board of Com'rs of Dearborn County v. Droege

• Decision Date: 03 October 1946
• Docket Number: 28255.
• Citation: 68 N.E.2d 650,224 Ind. 446
• Parties: BOARD OF COM'RS OF DEARBORN COUNTY v. DROEGE et al.
• Court: Indiana Supreme Court

68 N.E.2d 650

224 Ind. 446

BOARD OF COM'RS OF DEARBORN COUNTY v. DROEGE et al.

No. 28255.

Supreme Court of Indiana

October 3, 1946

Appeal from Dearborn Circuit Court; Curtis W Thompson, judge.

Hartell F. Denmure, of Aurora, for appellant.

Charles A. Lowe, of Lawrenceburg, for appellee.

O'MALLEY Judge.

The instant case grew out of the action of the Board of County Commissioners of Dearborn County in appointing Melvin Licking, Trustee of Caesar Creek Township, to take the place of Martin H. Westmeyer. Westmeyer was the duly qualified and acting trustee from January 1, 1943, to March 1945. In February 1945, Westmeyer's wife filed a verified statement with the Clerk of the Dearborn Circuit Court under and pursuant to § 22-1203, Burns' 1933, wherein she charged him with insanity. Proceedings were had in conformity with the statute and Westmeyer, having been found to be insane, was committed to the Madison State Hospital, where he was confined from that time until the time of the trial in the lower court. On March 20, 1945, these facts were brought to the attention of the Board of County Commissioners of Dearborn County, by presentation of a transcript of the insanity proceedings, and the Board thereupon found the office of Trustee of Caesar Creek Township to be vacant and appointed Melvin Licking to fill such vacancy. From this action of the Board, the appellees appealed to the Circuit Court of Dearborn County. There was a trial in the Circuit Court and at its conclusion, it was adjudged that the action of the Board of County Commissioners, in declaring that a vacancy existed in the office of Trustee of Caesar Creek Township and in appointing Melvin Licking to fill the vacancy, was void and of no effect. From this judgment the appellant appealed.

The boards of county commissioners of the various counties have not been authorized to remove trustees from office under any set of circumstances, but when there is a vacancy, the proper board of county commissioners can appoint a qualified person to fill such vacancy. In the instant case the Board merely recognized a vacancy in the office before making the appointment. If no vacancy existed, then there was no duty imposed on the board to fill the office. If no duty was imposed, the action in filling the vacancy was improper, and can be tested in the proper court in a proceeding brought for that purpose. The case of Board of Commissioners of Knox County v Johnson, 1890, 124 Ind. 145, 24 N.E. 148, 7 L.R.A. 684 16 Am.St.Rep. 88, cited by the appellees, involved the removal of a county superintendent of schools from office under a statute...