Gosman v. State, ex rel. Schumacher
| Decision Date | 16 April 1886 |
| Docket Number | 12,698 |
| Citation | 6 N.E. 349,106 Ind. 203 |
| Parties | Gosman v. The State, ex rel. Schumacher |
| Court | Indiana Supreme Court |
From the Dubois Circuit Court.
The judgment is affirmed, with costs.
F. W Viehe, M. J. Niblack, W. A. Traylor and W. S. Hunter, for appellant.
J. E McCullough, J. H. Miller, B. Buettner and O. A. Trippett, for appellee.
This was a proceeding by information to determine which of two claimants was entitled to the office of clerk of the circuit court of Dubois county. There is no dispute as to the facts.
At the general election held in October, 1876, Gosman was elected for a term to commence August 18th, 1877. He qualified, took possession of the office, and at the general election held in October, 1880, was re-elected his own successor. On the 18th day of August, 1881, he entered upon his second term. At the general election held in November, 1884, Basil L. Green was elected to succeed Gosman. On the 6th day of August, 1885 after he had received his commission and filed his bond, but, without having taken the oath of office, Green died. The board of commissioners, assuming that a vacancy had occurred, appointed the relator, on the 19th day of August, 1885. He was duly commissioned by the Governor, and qualified according to law. Gosman, claiming the right to hold until his successor was elected and qualified, refused to surrender the office.
Conceding that he had served eight years continuously, it is contended on appellant's behalf, that he had the right, nevertheless, to hold over until a successor was elected and qualified. As against this view, it is argued that having held the office for a period of eight consecutive years, the appellant was ineligible to continue in the office after such ineligibility attached.
The right to the office, as between the claimants, depends upon the construction to be given to section 2, article 6 (section 152, R. S. 1881), and section 3, article 15 (section 225, R. S. 1881), of the Constitution of the State. Eliminating so much as has no application to the office of clerk, the section first referred to is as follows:
Section 3, of article 15, is as follows:
"Whenever it is provided in this Constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified."
An office is the right to exercise a public function or employment, and to take the fees and emoluments belonging to it. Waldo v. Wallace, 12 Ind. 569; Bouvier Dict., Title "Office."
The right embraces the idea that the office has been created by adequate authority, that the manner of designation for, and the conditions of eligibility to, the office, as well as the tenure, duration, emoluments and duties pertaining to it, have been prescribed. These are requirements which grow out of the Constitution, some of the provisions of which are referred to above, and the laws designed to carry it into effect.
Whoever, therefore, asserts the right to exercise an office, must, when properly challenged, show that he combines in himself at the time all the essential conditions and requirements upon which the right depends. He must have been, and continued, eligible, and he must have been so designated for the office that the law conferred upon him a title, with which he continues to be vested.
Upon the assumption that no disqualification existed, or has intervened, the right of an incumbent, who has been duly admitted into an office, continues during the prescribed term, and until his successor is elected and qualified. This results necessarily from the constitutional provision last above quoted. The expiration of the prescribed term, the election and qualification of a successor are the conditions which terminate his right. The election and qualification to the office of clerk give an absolutely vested right to the office for a term of four years, to which is added a contingent or defeasible right to hold over until the right of a duly elected and qualified successor attaches. Until the concurrence of these events, the title of a duly qualified incumbent to the office is complete.
He holds by the same tenure, after the prescribed term, until the right of a duly elected and qualified successor attaches, as before. So long as the defeasible right to hold over continues, and the incumbent exercises it, the same conditions which would create a vacancy during the prescribed term will be required to create one during the term which he is lawfully holding over. As a consequence, it must result that if no contingency has intervened to disqualify an incumbent from holding the office, or cut off his defeasible title, no vacancy has occurred merely because his prescribed term has expired, if in the meantime the right of his successor has not attached. In such a case, the body with whom the power to fill vacancies is lodged has no function to perform. The office is lawfully occupied by a qualified incumbent, whose title has not been defeated; it is not vacant. Tuley v. State, ex rel., 1 Ind. 500; Stewart v. State, 4 Ind. 396; Akers v. State, ex rel., 8 Ind. 484; Butler v. State, ex rel., 20 Ind. 169; Elam v. State, ex rel., 75 Ind. 518; Steinback v. State, ex rel., 38 Ind. 483; People v. Tilton, 37 Cal. 614; State v. Lusk, 18 Mo. 333.
The right to hold over is not defeated or terminated by the election of a successor. The successor must have been elected and qualified. Appointment is not the equivalent of election in the constitutional sense. Speed v. Crawford, 3 Met. (Ky.) 207. Election and qualification are essential to vest the right to the succeeding term in the officer elect. Until these occur it remains contingently in the incumbent, and while an existing title remains in him no vacancy exists. Accordingly, in Commonwealth v. Hanley, 9 Pa. 513, where a successor to the clerk of the Orphans' Court, after having been elected, died before the commencement of his term, without having qualified, it was held no appointment could lawfully be made. Where, however, a successor has been elected and qualified, the right of such successor to the ensuing term vests immediately, and the contingent right of the incumbent is thereby defeated. In such a case the death of the officer elect before the commencement of the term for which he was elected, does not revive the right of the incumbent to hold over. A vacancy results. The title to the office for the succeeding term having vested in another, the owner of the term having died, and the contingent right of the incumbent having effectually ended, the office can only be filled by a resort to the means provided for supplying the vacancy. State, ex rel., v. Bemenderfer, 96 Ind. 374; State v. Seay, 64 Mo. 89 (27 Am. R. 206).
These conclusions follow from a consideration of section 3, and upon the assumption that the person claiming the right to hold over in any case is at the time eligible to continue in the office. The section referred to affects the tenure of office; it has no relation to the qualifications or eligibility of the officer. Other sections provide who shall be eligible to the office of clerk, and prescribe the conditions upon which one, eligible to be elected, may become disqualified from continuing in the office. Primarily, it is required as a condition of eligibility to a county office, that the aspirant shall be an elector of the county, and that he shall have been an inhabitant thereof for one year previous to his election. It is also required of county officers that they continue to reside in the respective counties in which they are elected to office. They may not accept any other lucrative office except as expressly permitted by the Constitution, and in section 2, above quoted,...
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