Foltz v. Kerlin
| Citation | 105 Ind. 221,5 N.E. 672 |
| Parties | Foltz v. Kerlin. |
| Decision Date | 06 March 1886 |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from White circuit court. On petition for rehearing. See 4 N. E. Rep. 439.
*672M. M. Sill and T. F. Palmer, for appellant.
Reynolds & Sellers and D. D. Dale, for appellee.
In the brief on the petition for a rehearing, appellee's counsel shift the ground upon which they place their cause, and we might, under settled rules, decline to consider the new points made upon the petition for a rehearing; but, as the case must go back for further proceedings, we have thought it proper to discuss the questions now presented. What we decided in the original opinion is that the complaint makes a prima facie case for the contestant; that is, it shows the ineligibility of the appellee to enter into the office of township trustee at the time his term of office began. Whether he can successfully defeat *673that case was not the question before us, and, of course, no decision upon that question was made. It may be that the appellee can show by answer that he removed the cause of his ineligibility by resigning the office of postmaster, but that question cannot now be decided, for it cannot arise until there is an answer presenting it. The complaint demurred to by the appellee shows that he was not eligible to enter into the office to which he was elected, and that he claims the office; thus showing a prima facie cause of action; for we think it quite clear that a voter may challenge the right of an ineligible person to hold office. The statute expressly so provides.
The cases cited by counsel are not at all in point, except, perhaps, that of Searcy v. Grow, 15 Cal. 117, which is very strongly against the appellee, for it goes much further than we have done, as it holds that an incumbent of the office of postmaster is ineligible to be voted for at the election. We are simply required to decide that, if a person chosen to office is shown to be ineligible at the time when he ought to be inducted into office, such a case is made as, at least, drives him to answer. Petition overruled.
To continue reading
Request your trial
-
State v. Cole
...92 P. 3; Burrill's Law Dictionary, 257, tit. Office; Throop, Pub. Officers, §§ 2-10; Foltz v. Kerlin, 105 Ind. 221, 4 N.E. 439, 5 N.E. 672, 55 Am. Rep. 197; v. Martin, 57 Ark. 86, 20 S.W. 809; In re House Bill, 9 Colo. 629, 21 P. 473; People v. Nostrand, 46 N.Y. 381; People v. Nichols, 52 N......
-
Edwards v. Board of Educ. of Yancey County
...acting under our laws can do can vacate an office upon which our laws do not operate.' Foltz v. Kerlin, 105 Ind. 221, 4 N.E. 439, 441, 5 N.E. 672. See, also, 67 C.J.S., Officers, § Our conclusions do not conflict with the decision in Re Wingler, 231 N.C. 560, 58 S.E.2d 372, 376. But the gen......
-
Dean v. Paolicelli
...574, 583; Attorney General v. Detroit Common Council, 112 Mich. 145, 70 N.W. 450; Foltz v. Kerlin, 105 Ind. 221, 4 N.E. 439, 5 N.E. 672, 55 Am.Rep. 197; State v. Dunn, 73 N.C. 595; State v. Pipes, 17 La.App. 502, 133 So. 812 (affirmed in 173 La. 488, 137 So. 862). 'The rule has been stated ......
-
State ex rel. Handley v. Superior Court of Marion County, 1
...office of postmaster and township trustee at the same time, in Foltz v. Kerlin, 1886, 105 Ind. 221, at page 224, 4 N.E. 439, 440, 5 N.E. 672, 55 Am.Rep. 197, speaking through Judge Elliott, 'Our courts cannot decide upon the right of an appointee of the national government, * * *. Within th......