Parcel v. State ex rel. Lowrey

• Decision Date: 16 March 1887
• Docket Number: 13,546
• Parties: Parcel v. The State, ex rel. Lowrey
• Court: Indiana Supreme Court

11 N.E. 4

110 Ind. 122

Parcel v. The State, ex rel. Lowrey

No. 13,546

Supreme Court of Indiana

March 16, 1887

From the Pulaski Circuit Court.

The judgment is reversed, with costs.

N. L Agnew and B. Borders, for appellant.

OPINION

Mitchell, J.

This proceeding was commenced on the 10th day of December, 1886 by an information in the name of the State, on the relation of Robert A. Lowrey, against Clark R. Parcel, to test the right of the latter to hold the office of county commissioner for the third district of Pulaski county.

After the issues were joined, the case was tried upon an agreed statement of facts. The material facts as they appear upon the record are, in substance, as follows: The board of commissioners of Pulaski county was organized pursuant to law, on the 27th day of May, 1839. According to the organization of the board, the first commissioner for the third district held his office for the period of one year, or until the 27th day of May, 1840. From 1840 until 1882, the regular succession was maintained without interruption. In May, 1880, Martin Seely, who had been duly elected and qualified, and whose term commenced in 1879 and ended in 1882, died while serving in the office of commissioner. Clark R. Parcel was thereupon appointed to fill the vacancy. In October, 1880, the relator, Lowrey, was elected to fill out Seely's unexpired term. In November, 1882, he was reelected as his own successor. The clerk's certificate issued to Lowrey in pursuance of this last election, recited that he was elected for a term commencing October 14th, 1883. This was one year later than the actual commencement of his term. The relator assumed to hold under his first election until October 2d, 1883, at which time he took the oath of office under the certificate last issued, and continued in the office until the 6th day of December, 1886. At the November election in 1886, Parcel was elected commissioner for the third district. After receiving his certificate and qualifying according to law, he demanded his seat, on the 6th day of December, 1886. The relator refused to surrender, but the other commissioners admitted Parcel to his seat, and recognized him as the lawful member. In this way the relator was excluded from the board.

Upon consideration of the admitted facts, the learned court below gave judgment that the relator was wrongfully excluded, and that the appellant was a usurper in the office. From this judgment the appeal before us has been taken.

As the appellee has not favored us with a brief or other argument of the case, we are not advised as to the theory upon which the court below proceeded, except as stated in the brief of appellant.

The scheme for the organization of boards of commissioners is such, that the term of one commissioner on each board expires, and the term of one commissioner elect commences each year. This was the policy of the first law under which boards were organized. It is more plainly the policy of the act of March 7th, 1885.

The regular order had been observed without interruption in the district in question from the organization of the board, until during the term commencing in the year 1882, and ending on the first Monday in December, in 1885.

The relator, Lowrey, was first elected in October, 1880, to fill out the unexpired term made vacant by the death of Seely. This term commenced in 1879, and ended in 1882. The election of Lowrey in 1880 only authorized him to hold the unexpired term of Seely. Parmater v. State, ex rel., 102 Ind. 90, 3 N.E. 382.

In November, 1882, the relator was elected his own successor. His second term commenced immediately after his election, and proper notification thereof. This was so because the preceding term, into which he had been elected, had expired. That his certificate, issued by the clerk, erroneously stated that his second term did not commence until October, 1883, could not change the law, nor in any manner interrupt or affect the regular succession or length of the terms. The second term into which Lowrey had been elected expired on the first Monday in December, 1885, and if his successor had been elected in November, 1884, as he should have been, and had qualified, the right of such successor to...