Couch v. State ex rel. Brown
| Decision Date | 07 November 1907 |
| Docket Number | 20,963 |
| Citation | 82 N.E. 457,169 Ind. 269 |
| Parties | Couch et al. v. State, ex rel. Brown |
| Court | Indiana Supreme Court |
From Jefferson Circuit Court; Hiram Francisco, Judge.
Action by the State of Indiana, on the relation of William Brown against John G. Couch and others. From a judgment for plaintiff, defendants appeal.
Affirmed.
W. T Friedley and George B. Hall, for appellants.
An alternative writ of mandate was issued by the Switzerland Circuit Court upon the application of relator, requiring appellants and others to show cause why they should not surrender to him possession of the office of trustee of the fifth ward of the town of Patriot. Appellants' motions to quash the writ, and demurrers thereto, were overruled, issues of fact were joined, and the cause transferred to the court below. A trial by the court was had, with special findings and conclusions of law, and judgment rendered thereon in favor of the relator.
Errors have been assigned upon the overruling of appellants' motion to quash the writ and the demurrer thereto, and upon the several conclusions of law stated.
It appears, from the allegations of the alternative writ, that on November 7, 1905, a general election of municipal officers was held in the town of Patriot, and relator and appellant Rush Platt were opposing and the only candidates for the office of trustee of the fifth ward of said town. Relator was a resident of the ward and in all respects--particularly averred--legally qualified to hold said office. He received the highest number of votes, and was by the election board duly declared elected as such trustee for the term beginning on the first Monday of May, 1906, and ending on the first Monday of January, 1910. A certificate of his election was signed and issued to him by the election board, and on November 10, 1905, he subscribed and took the oath of office, which oath was written upon the back of such certificate. On the first Monday of May, 1906, the board of trustees of said town was convened according to law, and comprised the following members: John G. Couch, Frank McHuron, Harvey Elliott, Henry Schroeder and the relator, and while so convened relator presented his certificate of election and official oath to Rosman I. White, the town clerk of said town, and requested that the same be filed, and to the members of said board, and demanded possession of said office, but Couch and Schroeder together with appellant Rush Platt, who was then and there present, and who had been trustee from said ward for the term immediately preceding, over the votes and protests of Elliott and McHuron, refused to permit relator to take said office or to participate in the proceedings of the board, and said clerk refused to receive and file such election certificate and oath, and said Platt continued in possession of said office, and refused to surrender the same or anything connected therewith.
It is contended that the motion to quash the alternative writ and the demurrer thereto should have been sustained, for the reason that the relator had a complete remedy at law. The doctrine that a writ of mandate is not proper and will not be granted, where the applicant has another adequate remedy, has been frequently declared by this court. State, ex rel., v. Real Estate, etc., Assn. (1898), 151 Ind. 502, 51 N.E. 1061; Wampler v. State, ex rel. (1897), 148 Ind. 557, 38 L. R. A. 829, 47 N.E. 1068; State, ex rel., v. Board, etc. (1891), 131 Ind. 90, 30 N.E. 892; Harrison School Tp. v. McGregor (1884), 96 Ind. 185; State, ex rel., v. Board, etc. (1865), 25 Ind. 210; Board, etc., v. Hicks (1851), 2 Ind. *527.
Appellants' application of this principle to the case at bar proceeds upon the assumption that this is an action to try the title to an office. This assumption is erroneous, and it must be observed and borne in mind that no adversary claims to the right of possession or title to the office named appears from the complaint. The complaint proceeds upon the theory that relator was duly elected, commissioned and qualified as trustee from the fifth ward, and that appellants arbitrarily refused to receive and honor his certificate of election or admit him to membership upon the board of trustees. It is clearly shown that relator was clothed with a prima facie title to the office, and the right to enjoy the privileges and exercise the functions thereof. It is true that a writ of mandamus cannot be rightfully invoked to settle a doubtful claim to an office, or to have the title thereto adjudicated as between adverse claimants, and in such case an information in the nature of quo warranto affords the proper remedy. Hoy v. State, ex rel. (1907), 168 Ind. 506, 81 N.E. 509. But where the relator is shown to hold a prima facie and uncontested title to an office, a writ of mandate may be issued to put him in possession of the office. City of Madison v. Korbly (1869), 32 Ind. 74; McGee v. State, ex rel. (1885), 103 Ind. 444, 3 N.E. 139; Mannix v. State, ex rel. (1888), 115 Ind. 245, 17 N.E. 565; Swindell v. State, ex rel. (1895), 143 Ind. 153, 35 L. R. A. 50, 42 N.E. 528; State, ex rel., v. City of Noblesville (1901), 157 Ind. 31, 60 N.E. 704.
It is the duty of an incumbent of a public office at the expiration of his term, when a certificate of election has been issued to another who has qualified thereunder, to surrender the office to his successor; and, should he then desire to contest the eligibility,...
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