Heim v. Brammer

• Decision Date: 23 September 1896
• Citation: 145 Ind. 605,44 N.E. 638
• Parties: HEIM v. BRAMMER.
• Court: Indiana Supreme Court

145 Ind. 605

44 N.E. 638

HEIM

v.BRAMMER.

Supreme Court of Indiana.

Sept. 23, 1896.

Appeal from circuit court, Warrick county; R. D. Richardson, Judge.

Proceedings on the relation of Frederick Brammer against Constantine Heim to oust the latter from the office of township trustee. There was a judgment for relator, and defendant appeals.

Hatfield & Hemenway, for appellant. John B. Handy, C. W. Armstrong, James R. Wilson, John L. Taylor, and C. M. Handy, for appellee.

HACKNEY, J.

At the November, 1894, election, one Nicholas Fehd was elected trustee of Campbell township, in Warrick county, and, after having assumed the duties of said office, on the 8th day of August, 1895, he tendered to the board of commissioners of said county his resignation from said office. By reason of a supposed informality, in addressing said resignation to the board instead of the county auditor, said Fehd did, on the 9th day of August, 1895, tender his resignation of said office, addressed to said auditor, and asked it to be submitted to said board. On said 8th and 9th days of August, 1895, said board of commissioners was in session, pursuant to the requirements of section 5917, Rev. St. 1894, and on each of said days-said resignations, respectively, having been submitted to them-did designate and appoint, to fill the vacancy caused by said resignations, the relator, Frederick Brammer, who, as to each of said two appointments, filed with said auditor an oath of office and an ample bond; but, deeming it his duty to fill said vacancy, said auditor refused to approve said bonds or either of them, and on the 9th day of August, 1895, made the appointment of the appellant, Constantine Heim, to fill said vacancy. Heim qualified, gave bond, and entered upon the duties of said office. Brammer demanded said office from Heim, and sued the auditor at the September term, 1895, of the circuit court, to require the approval of said two bonds, and, having thereby required the approval of said bonds, he again, on the 22d day of November, 1895, demanded from the appellant the possession of said office, and on the 29th day of November, 1895, instituted this suit to oust the appellant from said office. The questions arising upon the record are assigned upon the rulings of the circuit court in overruling the appellant's demurrer to the complaint, and in sustaining the appellee's demurrer to the appellant's answer.

The facts, as we have stated them, so far as they relate to the appointment of the relator, are stated in the complaint, and, so far as they relate to the appointment of the appellant, are alleged in the answer. Briefly stated, the question at issue is as to where, under the circumstances, the power to fill the vacancy was lodged. By section 8071, Rev. St. 1894 (section 5996, Rev. St. 1881) it is provided that “all vacancies in the office of township trustee shall be filled by the board doing county business in term time, or by the auditor in vacation.” By section 5917, Rev. St. 1894, the board is required to “hold a session” on the first Monday of August to receive the reports of trustees of receipts and expenditures of school revenues for the year ending on the 31st day of July. The terms of the commissioners' court are required to be held in March, June, September, and December. Rev. St. 1894, § 7821 (Rev. St. 1881, § 5736). Such terms have always been recognized by the courts, the legal profession, and the public as the “regular terms.” They are regular, in the sense of occurring with uniformity upon the periods prescribed, and they are general, in the sense that the general public business, within the...