Cadwell v. Teany

• Decision Date: 02 June 1927
• Docket Number: No. 25217.,25217.
• Parties: CADWELL et al. v. TEANY et al.
• Court: Indiana Supreme Court

199 Ind. 634

157 N.E. 51

CADWELL et al.

v.TEANY et al.

No. 25217.

Supreme Court of Indiana.

June 2, 1927.

Appeal from Dearborn Circuit Court; Burton B. Berry, Judge.

Suit by information in the nature of a quo warranto by Louis Teany and others against Erastus W. Cadwell and others. Judgment for relators, and respondents appeal. Affirmed.Crawford A. Peters, of Aurora, and Richard L. Ewbank, of Indianapolis, for appellants.

Wickens & Hamilton, of Greensburg, and McMullen & McMullen, of Aurora, for appellees.

TRAVIS, C. J.

This is a suit by information in the nature of a quo warranto by the appellees, who were the relators in the court below, against the appellants who were respondents. Sections 1208, 1209, 1212, 1215, and 1218, Burns' 1926. Relators Libbert, Marshall, Dorrell, and Thompson were elected at the general election November, 1921, to the offices of mayor, councilman for the first ward, councilman for the second ward, and councilman at large, respectively, for the city of Aurora. Respondents Teaney and Fleming were members of the common council of said city by virtue of an election held in November, 1921. Their terms of office began January 1, 1922, as did those of the relators. They were made respondents for the reason that they did not consent to join as relators in this action. There had been held in May, 1925, pursuant to the statutes of this state, a primary election for the purpose of nominating candidates on the Democratic and Republican tickets, which candidates were to be upon the official ballot to be voted at the election in November, 1925. On the 10th day of October, 1925, certain citizens duly filed their petition with the city clerk of said city nominating as candidates for the Citizens' party a ticket to be placed upon the official ballot to be used in the election November, 1925. Thereafter and prior to the day of election, a suit in the nature of mandamus was brought by certain citizens of said city against the board of election commissioners of said city and Jesse Henry, city clerk, and Joseph Kinnett, which suit proceeded to issue and trial, which resulted in a judgment in favor of the relators and against respondents. The election commissioners were ordered to print said Citizens' ticket upon the official ballot to be voted at the November election, 1925. The respondents appealed from this judgment to the Supreme Court and gave bond for $500. Thereafter respondents, as appellants, withdrew their brief on appeal, and thereafter said appeal was dismissed for failure of appellants to file a brief. Henry et al. v. State ex. rel. Thuermer, 197 Ind. 675, 151 N. E. 824. The entry of the judgment in the order book in the suit to mandate had not at that time been signed by the trial judge. In the allegations in the information in this action it appears that the election commissioners, who were respondents in the mandate proceeding, disobeyed the mandate and submitted ballots to the election inspectors upon which were printed the candidates named at the primary election for both the Democratic and Republican tickets, but did not have printed thereon the candidates named by petition for the Citizens' party ticket. At the election held the winning candidates were from both the Democratic and Republican tickets, the candidates of neither party ticket as a whole having been elected. The board of election commissioners delivered to the candidates receiving the highest number of votes certificates of election,and the persons holding these certificates took oaths of office, filed bonds where necessary, and on the first Monday in January, at noon, 1926, demanded the respective offices from those who held office by virtue of the preceding election until noon, the first Monday of January, 1926. The several officers, part of whom are relators in this action, who had been elected at the November election 1921, surrendered such offices under protest, which protest was reduced to writing and delivered to those who claimed the offices by virtue of certificates of election based upon the election November, 1925. Thereafter, January 12, 1926, relators brought this action, which inquired into the right of the respondents to hold the offices of which they are now in possession.

The errors relied upon to reverse the judgment herein are based upon two motions which attack the jurisdiction of the court, both as to the persons and to the subject-matter, which were both overruled, and respondents' separate and several demurrers to the information, which were overruled, and to relators' separate and several demurrers, to respondents' affirmative answer, which was sustained, and to the action of the court overruling respondents' motion for a new trial. To hold that the motions in question are well taken would result in a multiplicity of suits, the ultimate decision in each suit depending entirely upon whether or not respondents had been legally elected.

[1] Under the motions hereinbefore referred to, respondents relied upon the proposition that there was a misjoinder of parties in this action, in that inquiry might not be made in one action as to the rights of several parties to hold offices now in their possession, but that the action should be separate for each office. The opinion of the court is that both motions were correctly overruled. In this action the rights of the different persons to hold the separate city offices and which were in question all depend upon one and the same election. If the election was bad as to one, it was bad as to all. Commonwealth v. Stevens, 168 Pa. 582, 32 A. 111.

Respondents' demurrer to the complaint and their affirmative answer bring before the court the same question of law presented by the motions, and challenge the jurisdiction of the court, and also the right of the parties to sue.

[2] Under the demurrers appellants make the proposition that because the terms of office of the relators expired at noon the first Monday in January, 1926, and that they had surrendered their several offices, they did not have such an interest as would legally support them as relators in an information in the nature of a quo warranto. This proposition assumes that the relators are not suing as citizens, but only from an interest they would derive as such officials. Relators by virtue of their election November, 1921, and having qualified and entered upon their official offices January, 1922, were entitled to hold such offices for a term of four years and until their successors were duly and legally elected and qualified as their successors according to law. If there had been no election, or, there having been an election, if void, there is no one to succeed them. And, according to the statute, they had a right to the several offices to hold over until they were succeeded in office as provided by law. They therefore had an interest that would support them as relators in this action. The action of the court overruling the demurrers to the complaint did not constitute error.

Under the same reasoning the action of the...