Osborne v. State ex rel. Michaels
| Decision Date | 23 April 1891 |
| Docket Number | 14,813 |
| Citation | 27 N.E. 345,128 Ind. 129 |
| Parties | Osborne et al. v. The State, ex rel. Michaels |
| Court | Indiana Supreme Court |
From the Wabash Circuit Court.
Judgment affirmed.
A Taylor, for appellants.
J Mitchell, for appellee.
The initial question in this case is whether the relator has the capacity to maintain this action. Whether he has that capacity depends upon whether the office of township trustee was vacant at the time of his appointment to it. If it was not vacant, the action must fail. The facts relevant to this question are, in substance, these: In April, 1882, John G. McIlvaine was elected township trustee of Jackson township, Miami county; in 1884 he was elected his own successor, and, as such, duly qualified. McIlvaine lost a large sum of money belonging to the township in speculations, and was unable to repay it. He fled to Kentucky. His declarations indicate a settled intention to vacate his office, and he left no one to discharge its duties for him. In our opinion the office became vacant. When an officer becomes a defaulter, flees the State, leaves no one to care for the public affairs, and indicates a settled purpose to abandon the office, it may be deemed vacant without a judicial determination. It would imperil public interests and benefit no one in such a case to adjudge that the office can not be deemed vacant until so declared by the courts. If the officer were insisting upon his right to the office, we should have a different case, but here there is evidence of a complete abandonment and a defalcation, and here, too, the object of the action is to recover the money of the public. We are fully within the authorities in holding that there was a vacancy and a right to fill it by appointment. State, ex rel., v. Jones, 19 Ind. 356; State, ex rel., v. Allen, 21 Ind. 516 (83 Am. Dec. 367); Yonkey v. State, ex rel., 27 Ind. 236; Krant v. State, 47 Ind. 519; Gosman v. State, ex rel., 106 Ind. 203, 6 N.E. 349 (209); Mowbray v. State, ex rel., 88 Ind. 324; People, ex rel., v. Common Council, etc., 77 N.Y. 503 (33 Am. R. 659); People, ex rel., v. Green, 58 N.Y. 295; Curry v. Stewart, 71 Ky. 560, 8 Bush 560; Prather v. Hart, 17 Neb. 598, 24 N.W. 282. It would be palpably unjust to permit the sureties on the bond of a defaulting officer who has fled the State and asserts an intention to abandon his office, to challenge the right of the person appointed to fill the abandoned office to prosecute an action for the recovery of the public money.
The appointment of the relator by the auditor did not create a vacancy; the vacancy was created by the acts of McIlvaine. When these acts were performed the office became vacant. Hedley v. Board, etc., 4 Blackf. 116. The appointment filled, but did not create, a vacancy. The presumption is that an appointment made by an officer having power to appoint is rightfully made, whenever it appears that the appointee duly qualified and entered into possession of the office. Commonwealth, ex rel., v. Slifer, 25 Pa. 23 (64 Am. Dec. 680).
There was an appointment and an actual incumbency, so that the collateral attack which the appellants here make would be unavailing, even if there were some grounds for their assertion that the...
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