City of Terre Haute v. Burns

• Decision Date: 25 October 1917
• Docket Number: No. 9279.,9279.
• Citation: 70 Ind.App. 712,117 N.E. 519
• Parties: CITY OF TERRE HAUTE v. BURNS.
• Court: Indiana Appellate Court

70 Ind.App. 712

117 N.E. 519

CITY OF TERRE HAUTE

v.BURNS.

No. 9279.

Appellate Court of Indiana, Division No. 1.

Oct. 25, 1917.

Appeal from Circuit Court, Clay County; John M. Rawley, Judge.

On rehearing. Denied.

For former opinion, see 116 N. E. 604.

Geo. W. Wells, of Terre Haute, and Curtis G. Scofield, of Brazil, for appellant. Davis, Bogart & Royse, of Terre Haute, for appellee.

FELT, J.

Appellee insists that a rehearing should be granted, and that the judgment should be affirmed for several alleged reasons, the principal ones being as follows: (1) That this court erred in holding that Don M. Roberts was the de facto city civil engineer; and (2) in holding that a de jure officer cannot recover the salary attached to the office from the municipality under which he holds such office, for a period of time during which the office was held by a de facto officer who discharged the duties of the office and received the salary for the period in controversy.

[1] The original opinion clearly states that there is a conflict of authority on the latter proposition, and cites authorities supporting both views. We have reviewed many of the decisions, and are content with the conclusion reached and announced in the original opinion.

[2] However, appellee now contends that such conclusion is in conflict with the decision of the Supreme Court in the case of State ex rel. Worrell v. Carr, 129 Ind. 44, 28 N. E. 88, 13 L. R. A. 177, 28 Am. St. Rep. 163. This case received careful consideration when the opinion was written, and we have again examined it to determine whether we were right in the conclusion then reached that the facts of that case on which the opinion is based are so radically different from those of the case at bar that it is not a precedent we should follow in this case. As to the questions actually decided there is no necessary conflict in the two decisions. Opinions are to be read and considered in the light of the facts on which they are based and the questions actually presented to and decided by the court. What is said beyond that is mere obiter dicta, is not an essential part of the opinion, does not amount to a decision of the question discussed, and is binding on no one.

In the case at bar appellee did not have possession of the office or discharge the duties thereof. In the Worrell-Carr Case, supra, Worrell was not only the de jure officer, but he was in actual possession of the office provided by the proper authorities and...