McGuirk v. State ex rel. Gottschalk
| Decision Date | 07 January 1930 |
| Docket Number | 24,969 |
| Parties | McGuirk v. State of Indiana, ex rel. Gottschalk |
| Court | Indiana Supreme Court |
Rehearing Denied April 10, 1930.
1. OFFICERS---Statutory Disqualifications for All Indiana Offices---Conviction of Crime against United States---Defrauding or Attempting to Defraud United States---Seditious Utterances.---Under the provisions of 11607, 11608 Burns 1926, it is an indispensable qualification for persons to hold any office within the State of Indiana either by election or appointment, that such persons shall never have evaded, or have been convicted of evading, the Selective Service Act of the United States, or of any conspiracy or attempt to defraud the government of the United States, or of any seditious utterance in violation of any of the laws of the United States, or of any other crime against the laws of the United States, where the sentence imposed therefor exceeded six months. p. 656.
2. ELECTIONS---Contest---Grounds for---Conviction of Infamous Crime.---Under 7610 Burns 1926, the fact that a person elected to an office has been convicted of an infamous crime is a ground for contest, where the conviction has not been reversed nor such person pardoned. p. 656.
3. QUO WARRANTO---Proper Remedy to Determine Right to an Office---By Whom May be Filed.---An information in the nature of a quo warranto is a proper remedy to determine the right to an office, and, under 1189 Burns 1926, may be filed by any person claiming an interest in the office, on his own relation (Crampton v. O'Mara, 193 Ind. 551 distinguished). p. 657.
4. Quo WARRANTO---Relator must Recover on Strength of Own Title---Not on Weakness of Defendant's Title.---In a quo warranto proceeding to oust the incumbent of an office, the relator can recover only upon the strength of his own title and not upon the weakness of the defendant's title to the office. p. 657.
5. ELECTIONS---Certificate of Election---Prima Facie Evidence of Election---Conclusive Evidence on Collateral Attack.---A properly executed certificate of election is prima facie evidence of the holder's election in a direct attack on the validity of such election and conclusive evidence thereof on a collateral attack. p. 657.
6. ELECTIONS---Election Certificate---Presentation to Incumbent---Entitles Holder to Office.---An election certificate showing the holder's election to the office of township trustee was prima facie evidence of the election of the person named therein, and, on the presentation of such certificate to the incumbent of the office, the holder was entitled to possession thereof. p. 657.
7. OFFICERS---Claimant to Office Performing its Duties---Officer de Facto.---Where an individual is in possession of an office and performing its duties, claiming to be the rightful incumbent thereof under color of an election or appointment, he is an officer de facto. It is not necessary that his election or appointment should be valid for that would make him an officer de jure. p. 658.
8. OFFICERS---Vacancy in Office.---An office is not vacant when there is a de facto incumbent. p. 659.
9. OFFICERS---Appointment to Fill Vacancy in Office---Void when No Vacancy.---An appointment to fill a vacancy in an office is void when there is no vacancy. p. 659.
10. OFFICERS---Appointment to Fill Vacancy when there was no Vacancy-Appointment Void and Appointee had no Special Interest in Office---Information Held Insufficient.---Where an office was occupied by an officer who was at least a de facto officer, there was no vacancy to be filled, and the appointment of another to fill a vacancy therein was void, and could give him no special interest therein peculiar to himself so as to authorize him to file an information in the nature of a quo warranto to oust the incumbent from the office; his complaint showing such state of facts would be insufficient on demurrer. p. 659.
From Clay Circuit Court; Everett A. Davisson, Special Judge.
Information in quo warranto by the State of Indiana on the relation of William F. Gottschalk against William B. McGuirk, seeking to oust the respondent from the office of trustee of Harrison Township, Vigo County, Indiana, and to recover the office and salary for the relator. From a judgment for relator, the respondent appealed.
Reversed.
Charles C. Whitlock, C. E. Henderson and L. L. Henderson, for appellant.
Miller & Englehart, Noble J. Johnson, James H. Caldwell and Walker & Hilleary, for appellee.
OPINION
The relator filed, in the Vigo Circuit Court, an information in quo warranto, against the appellant, seeking to oust him from the office of township trustee, in Harrison Township, Vigo County, Indiana, and to recover the office and the salary for himself. After a demurrer to the information was overruled, the defendant filed an answer in general denial. The action was based on § 1188 Burns 1914 (§ 1208 Burns 1926) which provides that an information may be filed against any person when he shall usurp, intrude into, or unlawfully hold or exercise any public office within this state. The venue of the cause was changed to the Clay Circuit Court. There was a trial by jury and a peremptory instruction in plaintiff's favor. Verdict was returned for the plaintiff, that the defendant be ousted, and that the relator have the office and $ 500 damages. Judgment was rendered in favor of relator in conformity to the verdict.
On appeal, appellant assigned the following alleged errors: Overruling his motion to make the complaint more specific; overruling his motion to strike out parts of the complaint; overruling his demurrer to the complaint; and overruling his motion for a new trial.
The complaint or information contained the following material averments: On November 2, 1922, at the general election, the name of John Maselink appeared upon the ballot as the Democratic candidate for the office of township trustee of Harrison Township, Vigo County, Indiana; the board of canvassers for said election certified that Masselink received the highest number of legal votes and ballots cast for any candidate for said office at said election, and a certificate purporting to show that he had been elected to the office was thereupon issued; one Andrew Powers was the duly qualified and acting trustee of said township at the time of the election, and up to and including December 31, 1922, on which day, he vacated the office and surrendered same to Masselink, who on January 1, 1923, took possession of the office and all the books, documents and property which belonged to the township; after January 1, 1923, Masselink usurped the office of township trustee up to and including part of January 2, 1925, and, some time during that day, Masselink turned the office and the books, papers, documents and appurtenances thereto belonging over to the defendant, William B. McGuirk, who, ever since the time said Masselink turned the office over to him, as aforesaid, has wrongfully and unlawfully usurped said office; the pretended election of Masselink was, as to him, null and void, as he was at the time ineligible and disqualified to hold the office for the following reasons: Masselink had, previous to said election, been convicted of an infamous crime in the United States Court for the District of Indiana, which conviction was had upon an indictment in said court in four counts, and verdict was returned by a jury upon a trial of Masselink upon the indictment in said court on April 6, 1915, which verdict found him guilty on each of said four counts; the first count charged Masselink, in connection with a large number of other persons, with the commission of the crime of conspiracy to intimidate and oppress certain citizens of the United States in the free exercise and employment of the right and privilege of voting at the general election for a candidate to the United States Senate and representative to Congress from the Fifth Congressional District of the State of Indiana; the second count charged Masselink, in connection with other persons, with the commission of the crime of conspiracy to defraud the United States by committing willful fraud upon the laws of the United States providing for the general election of a senator and congressman of the United States; the third count charged Masselink, in connection with other persons, with the commission of the crime of conspiracy to obtain money from gamblers, saloon-keepers and other persons under various pretenses by the use of the United States mail; the fourth count charged Masselink, in connection with other persons, with the commission of the crime of conspiracy to use the mails of the United States for unlawful purposes; said court, on April 12, 1915, duly rendered judgment upon the verdict and adjudged that Masselink be imprisoned upon each of said counts to serve one year and one day in the United States penitentiary at Leavenworth in the State of Kansas, and the judgment and sentence on all of said counts were concurrent; said judgment and conviction have never been reversed, and Masselink has never been pardoned for the commission of said crimes and the judgment remains in full force and effect; by reason of the aforesaid facts, Masselink never qualified or held any title to said office and could not and did not create any vacancy therein by his later resignation; the relator is eligible to said office and duly qualified to fill and hold same; on June 14, 1923, the relator was duly appointed township trustee of Harrison Township, Vigo County, Indiana, by the board of commissioners of the county of Vigo; he was duly appointed to the office as aforesaid to fill the vacancy which was existing in the office on account of said Masselink being ineligible to fill and hold the...
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