Parmater v. The State, ex rel. Drake
| Decision Date | 23 April 1884 |
| Docket Number | 10,875 |
| Citation | 3 N.E. 382,102 Ind. 90 |
| Parties | Parmater v. The State, ex rel. Drake |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled June 17, 1885.
From the Kosciusko Circuit Court.
R. M Johnson, L. M. Ninde and E. G. Herr, for appellant.
J. H Baker and J. A. S. Mitchell, for appellee.
This is a proceeding in the nature of quo warranto, in the name of the State, on relation of the prosecuting attorney, denying the right of the defendant Parmater to hold the office of commissioner of the first district of Elkhart county, and alleging that one John A. Smith was entitled to that office. A demurrer was filed to the information and afterwards withdrawn.
The defendant filed an answer in six paragraphs; and there was a reply in denial, when the venue was changed to Kosciusko county; trial by jury, and by request a special verdict was returned. Whereupon the defendant moved for a venire de novo, which was overruled, and the defendant moved for a new trial, which was also overruled. He then moved for judgment in his favor on the special findings, which was also overruled, and judgment was rendered thereon in favor of the plaintiff, and the defendant appealed to this court.
The errors assigned are:
1st. The information does not state facts sufficient to constitute a cause of action.
2d. Overruling motion for a venire de novo.
3d. Overruling motion for judgment in favor of defendant on special verdict.
4th. Overruling motion for a new trial.
5th. Rendering judgment against appellant.
6th. Overruling motion to postpone trial.
The information substantially states that at the general election of 1878, one Mather was elected commissioner for the first district of Elkhart county, for the term of three years from and after the 20th day of October, 1879; that in due form he entered upon the duties of said office; that he resigned August 7th, 1880, and the defendant was duly appointed to fill the office until the next general election; that afterwards at the general election of 1880, "the defendant was duly elected to the office of county commissioner for said district number one, made vacant by the resignation of Jonathan S. Mather as aforesaid," and duly entered upon the duties of said office; that afterwards at the general election held on the 7th day of November, 1882, in said county, John A. Smith, a person legally qualified to fill said office, was duly elected to the office of county commissioner for the first district of Elkhart county, as the successor of the defendant, and received his certificate of election in due form, and took the oath of office prescribed by law; that at the December term, 1882, of the board of commissioners of said county, the said John A. Smith took his seat with the other commissioners of said county and undertook to enter upon the discharge of the duties of his office, but the defendant, pretending that said office belonged to him, and claiming that his term of office had not expired, refused to surrender to said Smith said office, intruded into and unlawfully holds and attempts to exercise the duties of said office, to the exclusion of the said John A. Smith. Wherefore, etc.
The objection urged against this information is that the facts stated show that the defendant had the right to hold the office, and that Smith had no right to the office at that time.
The controversy between the parties appears to be, whether, where a commissioner has been elected for a full term and has entered upon his term and resigned at the end of nine months, and a successor has been appointed, who held until the next general election, which occurred at a time when two years of the resigning commissioner's term remain unexpired, the commissioner elected will hold for a full term of three years, or whether he holds simply to the end of the unexpired term of such resigning commissioner.
The notice for the election in 1880 said nothing about whether the commissioner was to be elected for a full term or the balance of an unexpired term. A similar notice was given for the election of 1882.
The 5733d section, R. S. 1881, which is the same as sec. 3, 1 R. S. 1876, p. 350, provides: "At the first election held to choose the first board of commissioners of any county, the person having the highest number of votes shall continue in office three years; the next highest, two years; and the next highest thereafter, one year; but if two or more persons have the same number of votes, their term shall be determined by lot, under the direction of the board of canvassers returning the election; and, annually, thereafter, one commissioner shall be elected, and shall continue in office three years, and until his successor is elected and qualified." The regular term of office of a commissioner is thus fixed at three years, and one is required to be elected each year. At the time this statute was first adopted we had annual elections; they are now changed to biennial elections, but the same language is still retained in the statute. And the only way that the spirit of the statute can now be carried out, is for the term of office of one of the commissioners to commence each year, so that there may at all times be at least two commissioners on the board of some experience. And in order to preserve this regulation the terms of office of each must commence and end regularly at periods of three years.
The record in this case shows that the county of Elkhart was divided into commissioner districts in 1831. And it is insisted by appellee that the term of office in the first district thereof has been regularly kept up in terms of three years ever since, vacancies being filled by appointments until the next general election, and after that by election until the expiration of the term. While it is contended by appellant that there have been irregularities in keeping up the regular terms.
We do not think it advisable or necessary to investigate all the terms of the various commissioners in this district since the organization of the county. If there were irregularities in the terms of the office ten, fifteen or thirty years ago, they can not be regulated in the matter in dispute between these parties.
The information expressly charges that at the fall election of 1878, Jonathan S. Mather was elected commissioner of said district for the term of three years from and after the 20th day of October, 1879; that he served nine months of the time and resigned; that appellant was appointed to fill the vacancy until the next general election; that at the general election, in 1880, he was elected commissioner for said district, the office of which was made vacant by the resignation of said Jonathan S. Mather. Under these charges and the law applicable to them, did appellant's term of office close after the general election of 1882, and the qualification of his successor, or did it extend for three years from the date of his election?
The 5567th section, R. S. 1881, which is the same as sec. 7, 1 R. S. 1876, p. 922, and has been the statute ever since March 13th, 1852, reads as follows: "Every person elected to fill any office in which a vacancy has occurred shall hold such office for the unexpired term thereof."
Appellant contends that this section does not apply to the office of county commissioner, because, as he claims, a vacancy in such office is to be filled by appointment; that the vacancy being thus filled by appointment, there can be no commissioner elected to fill an unexpired term at the next general election, and hence the commissioner elected at the next general election is elected for the full term of three years, and not to fill out the unexpired term.
Section 5733 provides that the term of office of a county commissioner shall be "three years, and until his successor is elected and qualified." Section 5731 provides that "Whenever a vacancy occurs in the office of commissioner before the expiration of the term, the remaining commissioner or commissioners, together with the auditor, shall choose some person to fill such vacancy until the next annual election." The obvious meaning of the statute is that where there is a vacancy in the term, such vacancy is to be filled by appointment until the next general election, when some one is to be elected to fill the vacancy until the end of the term. The vacancy created is one for the whole of the unexpired term which the resigning officer was entitled to hold. The appointment is not intended, and does not profess, to cover the whole vacancy; it is expressly limited to until the next general election. If there is any residue of the term remaining after the next general election, that is to be filled by an election. Section 5567 being upon the same subject, and not in conflict with the foregoing provisions in relation to county commissioners, must be considered in connection therewith; and it expressly provides that "Every person elected to fill any office in which a vacancy has occurred shall hold such office for the unexpired term thereof." Appellant certainly was elected to fill an office in which a vacancy had occurred by the resignation of Mather. The statute says that he, in such cases, shall hold such office for the unexpired term of Mather. The word "term" applies to the office, and not to the person holding it. State, ex rel., v. Mayor, etc., 28 Ind. 248; Baker v. Kirk, 33 Ind. 517; Sackett v. State, ex rel., 74 Ind. 486.
It is further insisted by appellant that the 5567th section does not apply to legislative offices. In this we think appellant is mistaken. It can only apply to legislative offices, and not to offices where the Constitution has fixed the terms of office. Governor v. Nelson, 6 Ind. 496; Coffin v. State, ex...
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