Kimberlin v. State ex rel. Tow
| Decision Date | 06 January 1892 |
| Docket Number | 16,122 |
| Citation | 29 N.E. 773,130 Ind. 120 |
| Parties | Kimberlin v. The State, ex rel. Tow |
| Court | Indiana Supreme Court |
From the Lawrence Circuit Court.
Judgment affirmed.
M. F Dunn, G. G. Dunn and W. K. Marshall, for appellant.
J. H Willard, for appellee.
The appellee, William H. Tow, was duly elected trustee of Marion township, Lawrence county, at the regular township election in the year 1888, duly qualified and entered upon the discharge of his duties as such, and is yet in the possession of the office, claiming title thereto.
At the April election in the year 1890, James H. Brown and Henry Murray were opposing candidates for the office of township trustee in Marion township, and after the votes had all been cast and the polls closed, and while the election officers were engaged in counting the ballots, but before the result of the election had been ascertained or declared, Brown suddenly and instantly fell dead. When the count was completed it was ascertained that Brown had received a majority of the votes cast for township trustee of Marion township. At the November election, in the year 1890 the appellant, Hugh L. Kimberlin, and the appellee were opposing candidates for the office of township trustee of Marion township; each took a part in the election and each voted for himself. The appellant was by the proper election officers declared duly elected, and, receiving his certificate of election, he qualified and filed his bond, as such trustee, to the approval of the county auditor, on the 13th day of November of that year. On the 17th day of December, 1890, the board of commissioners of Lawrence county, being in special session, entered an order reciting that there was a dispute as to who was elected township trustee of Marion township, and thereupon appointed the appellant as such trustee, but it does not appear that he filed any new bond or took any steps to qualify under this appointment. On the day of this appointment the auditor of Lawrence county issued to the appellant a warrant for the township funds belonging to Marion township, upon which he drew the funds from the county treasury, whereupon the appellee instituted proceedings in the Lawrence Circuit Court to enjoin him from acting as such trustee, in which he was successful. The appellant acted as such trustee for the period of five days before he was thus enjoined.
Each of the parties to this suit claims to be the legal trustee of Marion township, the appellant basing his claim upon the election held in November, 1890, and his subsequent appointment by the board of commissioners of Lawrence county, while the appellee bases his claim upon the alleged fact that his successor has never been elected and qualified, and that he has the right to such office until that event takes place.
The questions presented for consideration involve the construction of section 3, article 15, of the State Constitution, and some consideration of the provisions of section 5527, R. S. 1881.
Section 3, article 15, supra, provides that "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."
Section 5527, supra, provides "If any officer of whom an official bond is required shall fail, within ten days after the commencement of his term of office and receipt of his commission or certificate, to give bond in the manner prescribed by law, the office shall be vacant."
It is contended by the appellant: First. That the word "election," as used in the Constitution and statutes, is not used in its restricted sense, as meaning only an election by the people, but it should be construed as signifying chosen, or designated, and, when so construed, the appellant is entitled to the office in question by reason of his appointment by the board of commissioners of Lawrence county.
Second. That Brown was duly elected township trustee of Marion township, at the April election in the year 1890, and having failed to give bond and qualify within ten days after his term of office began, the office, under the provisions of section 5527, supra, became vacant, and the board of commissioners had the legal right to fill such vacancy by appointment.
No authority is cited by the appellant which supports his first position, and we have no knowledge of any such authority; while, on the contrary, the adjudicated cases seem to be harmonious in holding that where one is lawfully in the possession of an office, under a constitutional or statutory provision to the effect that he shall hold until his successor is elected and qualified, his right to hold over continues until a qualified successor has been elected by the same electoral body as that to which such incumbent owes his election, or which by law is entitled to elect a successor. Gosman v. State, ex rel., 106 Ind. 203, 6 N.E. 349; State v. Lusk, 18 Mo. 333; People, ex rel., v. Tilton, 37 Cal. 614; Lawhorn, Ex Parte, 18 Gratt. 85; Johnson v. Mann, 77 Va. 265; State, ex rel., v. Jenkins, 43 Mo. 261; State, ex rel. v. Harrison, 113 Ind. 434, 16 N.E. 384.
In view of these authorities, we are not at liberty to adopt the construction contended for by the appellant in this case.
We have no doubt that Brown was duly elected township trustee of Marion township.
When the last vote was cast, and the polls closed, the electors had made their choice, and the count could do nothing more than ascertain the result. The election officers had no power to elect any one after the polls were closed, their duty being confined to ascertaining the result of the ballotting and furnishing the necessary...
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