Hoy v. State ex rel. Buchanan

• Decision Date: 28 May 1907
• Docket Number: No. 20,904.,20,904.
• Citation: 81 N.E. 509,168 Ind. 506
• Parties: HOY, Mayor, v. STATE ex rel. BUCHANAN.
• Court: Indiana Supreme Court

168 Ind. 506

81 N.E. 509

HOY, Mayor,

v.STATE ex rel. BUCHANAN.

No. 20,904.

Supreme Court of Indiana.

May 28, 1907.

Appeal from Circuit Court, Boone County; A. D. Thomas, Special Judge.

Mandamus by the state, on the relation of Mortimer Buchanan, to John H. Hoy to compel respondent, as mayor of the city of Lebanon, to recognize the relator as a member of the common council of the city and to permit him to act as such. From a judgment overruling a demurrer to the alternative writ and petition and awarding a peremptory writ respondent appeals. Reversed and remanded, with directions to sustain the demurrer to the petition and alternative writ.

Ira M. Sharp and B. F. Ratcliff, for appellant. Higgins & Holloman and Terhune & Adney, for appellee.

JORDAN, J.

This is an action for a writ of mandamus instituted on June 5, 1906, by the state of Indiana, on relation of Mortimer Buchanan, to compel appellant, mayor of the city of Lebanon, Ind., to recognize the relator as a member of the common council of said city and to permit him to act as such in the proceedings of said council. On the day aforesaid, upon the filing of the petition, an alternative writ of mandamus was issued, commanding the appellant to forthwith recognize the relator as a member of said council, or, in default thereof, that he appear in court at 10 o'clock a. m. on the 16th day of June, 1906, and show cause, etc. On the last-mentioned day appellant appeared in court and demurred to the alternative writ and petition for want of sufficient facts. The demurrer was overruled, to which he excepted. On the 19th day of June, 1906, he filed his answer or return to the alternative writ and petition in three paragraphs, the first of which was the general denial. The second and third set up affirmative matter. Demurrers were sustained to each of the latter paragraphs of answer, and thereupon appellant withdrew the general denial and refused to plead further. A judgment was thereupon rendered by the court awarding a peremptory writ of mandamus.

The petition for the alternative writ alleges that the city of Lebanon, Boone county, Ind., is duly incorporated under the general laws of the state of Indiana, and has a population of less than 10,000 inhabitants, and is divided into three wards, and that appellant is the duly elected, qualified, and acting mayor thereof. At the regular general election held in said city on the 7th day of November, 1905, for the election of city officers there were four candidates for the office of councilman at large, to wit, Roscoe Bratton, O. Rush Daily, Mortimer Buchanan, the relator, and William Means. At said election of all the votes cast for councilman at large Roscoe Bratton received 656, O. Rush Daily received 649, Mortimer Buchanan, the relator, received 626, and William Means 603. The relator on said 7th day of November, 1905, was, and for more than two years prior to the commencement of this suit and up to this time has been, a bona fide resident and legal voter of said city and has held no other office of trust or profit whatever, and during said time has been eligible to hold the office of councilman of said city. On said 7th day of November, 1905, and continuously from said date, said O. Rush Daily was and has been and now is ineligible to hold said office of councilman for the following reasons: “The American Trust Company is a corporation organized and operating under and by virtue of the laws of the state of Indiana, having its main office in said city of Lebanon, and as such corporation was doing business therein prior to said election and continuously to this time. Prior to said election and continuously to this time said O. Rush Daily was, is, and during all of said time has been, a director of said company and the vice president thereof, and has held himself out to the public in such capacity and it was generally known in said community that said Daily during said time sustained such relations to said trust company. It is further charged that on the - day of August, 1903, the trust company in question entered into a contract with the city for the construction of a building to be used as a city building on premises described. By the terms of said contract the city became bound to pay to said trust company certain stipulated sums of money semi-annually in consideration of the acts performed by said trust company in pursuance of said contract. This contract has continued in full force and effect from the date of its execution to this time. The contract was duly executed by said city and by said trust company by said O. Rush Daily, vice president. Said Daily has acted as such vice president continuously from the date of execution to this time and during all of said time was a director in said company. It is alleged that the contract was duly recorded in the records of the clerk's office of said city. It is charged that by reason of Daily holding said office he was on said election day and ever since has been ineligible to hold the office of councilman of said city; that neither he nor any other person, other than the relator, is making any claims to said office whatever; that Daily has never accepted said office, nor entered into or attempted to enter into the duties thereof; that at said election the relator, Mortimer Buchanan, was legally elected as councilman at large as a member of the common council of said city for the following reasons, to wit: That of all the votes cast at said election for the office of councilman at large said Roscoe Bratton received the highest number and said relator, Mortimer Buchanan, received the highest number next to said Daily; that by reason of the foregoing facts the votes cast for Daily should not be counted against the relator; that the latter was legally elected and should be declared elected to said office. It is averred that immediately subsequent to said election the election board of said city issued a certificate of election to said Bratton and Daily, which certificates declared the terms of said office to begin on the 4th day of May, 1906; that it was generally understood and believed by this relator that the office of councilman at large would not begin until the expiration of the terms of office of the members of the common council elected May 3, 1904. On the 11th day of May, 1906, the relator, Buchanan, qualified as a member of said council by filing with the clerk of said city his oath of office and proceeded to enter upon his duties as a member of said council. The defendant, John H. Hoy, mayor of said city of Lebanon, as presiding officer of said council, has refused and continues to refuse to recognize the relator as a member of the council, although he has presented himself at the sessions of said council for the purpose of acting as a member thereof. No steps have been taken by the common council or any person to oust said Buchanan, or to elect any person as a member instead of said Daily or said Buchanan. It is further charged that the relator made demand in writing on the mayor to recognize him; that the latter has refused to do so and has notified him that he refuses to recognize him. Wherefore the plaintiff prays, etc.

The second paragraph of return to the alternative writ, after alleging the holding of the election on November 7, 1905, and stating the names of the four candidates for the offices of two councilmen at large, avers that Roscoe Bratton received the highest number of votes cast at said election for councilman at large, and that Daily received the next highest number of votes, and the relator received the third highest; that the board of canvassers duly convened according to law and issued certificates of their election to said Bratton and Daily to fill the office of councilman at large for said city; that, after receiving his certificate of election, O. Rush Daily, on November 8, 1905, duly qualified as such councilman, as required by law, by filing his oath of office, and also his certificate of election, with the clerk of said city of Lebanon. It is further alleged that on the date of such election and also on the first Monday of January, 1906, said O. Rush Daily was and yet is eligible to hold the office of councilman at large for the city of Lebanon. It is further disclosed in said return: That the relator prior to the election, and ever since has been, and now is, a resident of said city, and that he did not on said first Monday of January, 1906, nor within 10 days thereafter, take possession of said office, nor file his oath of office, nor did he do so at any time within four months thereafter. Said relator never at any time received from said board of canvassers, nor from any other source, a certificate of his election to said office. That in truth and in fact said relator, Buchanan, was not elected by the electors of said city of Lebanon to the office of councilman at large. That from said 7th day of November, 1905, to the 11th day of May, 1906, the relator wholly ignored said office of councilman at large and made no pretense or claim whatever of having been elected thereto, notwithstanding he at all times had full knowledge and notice of all the facts alleged and set forth in his petition and in the alternative writ of mandate. On said 11th day of May the relator filed a pretended oath of office with the clerk of the city of Lebanon. That Daily was duly elected to said office, and was in fact and in law such councilman at large. That by reason of the facts herein alleged said relator is not and never has been entitled to demand or hold the office of councilman at large.

The third paragraph of return sets up facts to show that the contract in question between the city of Lebanon and the American Trust Company is void by reason of its being in violation of the Constitution, which limits the indebtedness of municipal corporations to 2 per cent. of the taxable property. Counsel for appellant contend that the relator has...