Relender v. State ex rel. Utz

• Decision Date: 13 January 1898
• Citation: 49 N.E. 30,149 Ind. 283
• Parties: RELENDER v. STATE ex rel. UTZ, Pros. Atty.
• Court: Indiana Supreme Court

149 Ind. 283

49 N.E. 30

RELENDER

v.STATE ex rel.

UTZ, Pros. Atty.

Supreme Court of Indiana.

Jan. 13, 1898.

Appeal from circuit court, Floyd county; Jacob Herter, Judge.

Action by the state, on the relation of William C. Utz, prosecuting attorney, against August F. Relender. From a judgment in favor of relator, defendant appeals. Affirmed.

G. H. Hester and Alexander Dowling, for appellant. Voight & Stotsenburgh, for appellee.

JORDAN, J.

Action by the state, upon an information filed by the proper prosecuting attorney on his own relation, to expel the appellant from the office of commissioner of the county of Floyd. The information substantially charges that the defendant was duly elected as a member of the board of commissioners of the county of Floyd, state of Indiana, at the November election in 1894; that he qualified as such commissioner, and discharged the duties of the office, until the 15th day of June, 1896, when he abandoned said office, and removed to the state of Colorado, where he has since resided; that at the November election of 1896 one Martin H. Mann was duly elected to fill said office, and has qualified as such officer, and is entitled to hold said office for the unexpired term; that on the 3d day of December, 1896, notwithstanding his abandonment of the office, the defendant usurped it, and has ever since withheld the same from said Mann. The prayer is that a judgment of ouster be rendered by the court. On the issues joined, there was a trial, and the court made a special finding, and stated, adversely to the appellant, its conclusions of law, and rendered a judgment ousting him from the office, and ordered that the possession thereof be delivered to Mann. The sufficiency of the information is not assailed. The only question presented for our decision relates to the sufficiency of the facts found by the court to support the conclusions stated and judgment rendered. The special finding substantially sets out the following facts: The defendant (appellant here) was elected to the office of county commissioner of the county of Floyd, in the state of Indiana, at the November election in 1894, and duly qualified as such commissioner, and discharged the duties of the office until June 15, 1896, when he, with his family, removed to the state of Colorado, taking with him his personal property, except a small portion thereof, where he has ever since resided, and now resides, with his family, prosecuting his usual occupation of a groceryman, and where he has for an indefinite time located his residence, “with the disclosed intention of returning to New Albany, Floyd county, Indiana, when his and his daughter's health had improved, and when he had made all the money he could.” Since the defendant has so located his residence in the state of Colorado, he has returned at intervals to Floyd county, and attended every regular session of the board of commissioners of that county, except the March session of 1897, and again returned to the state of Colorado, where he now is, at his residence aforesaid. He has not attended any of the special sessions of said board of commissioners held in the year of 1896, on July 3d and 13th, August 1st, 3d, 4th, 5th, and 6th, and on October 17th, 26th, 27th, 28th, 29th, 30th, and 31st, and on November 2d, 4th, 5th, 6th, 7th, and 21st. When the defendant left Floyd county, on June 15, 1896, to go to Colorado, he left his post-office address with the auditor, and requested him to notify him when wanted. No successor was appointed by the board of commissioners to succeed the defendant. The finding further discloses that at the general election held in November, 1896, in Floyd county, Ind., for an election, among other officers, of a county commissioner for the First district in said county, being the same from which appellant was formerly elected, Martin H. Mann received the highest number of legal votes cast for said office, and was duly elected thereto for the unexpired term; that said Mann received a certificate of his election to said office, and duly qualified as such commissioner; that at the next regular session of the board of commissioners of the said county of Floyd, after his said election, which convened on December 3, 1896, Mann presented himself to said board, and attempted to act as a member thereof; but the defendant, being present at the time, would not permit him to act or take his place as a member of said board, or discharge the duties of his office, and ever since has refused to permit Mann to take his place and act as such commissioner. The court, upon the facts found, declared the law to be, in substance, as follows: (1) By the defendant's removal to Colorado and his subsequent residence in said state when a member of the board of commissioners of the county of Floyd, state of Indiana, he voluntarily disabled himself to discharge the duties of the office, and thereby abandoned the same, and by said act the office became vacant from the time of his said removal; (2) that Mann is now, and ever since he was elected and qualified has been, entitled to hold said office; (3) that on December 3, 1896, the defendant usurped the said office of county commissioner, and ever since the said date has withheld the same from said Mann, and that the defendant ought to be ousted from the office, and possession given to Mann. The contention of counsel for appellant is that the facts do not warrant the conclusion that appellant abandoned the office in controversy, and thereby surrendered his right and title to the same. It is urged that the finding of facts shows that appellant's removal to the state of Colorado was but a temporary sojourn, and, under the circumstances, was not an abandonment of the office. This claim, as made by appellant, is earnestly controverted by counsel for the state, and they contend that the legitimate inferential facts found by the court fully authorized its judgment.

The constitution of the state requires that “all county, township and town officers shall reside within their respective counties, townships and towns, and keep their respective offices at such places therein, and perform such duties as may be directed by law.” Const. art. 6, § 6. Section 7815, Rev. St. 1894 (section 5731, Rev. St. 1881; section 5731, Horner's Rev. St. 1897), provides for the organization in each county in this state of a board of county commissioners for the transaction of county business. Such boards are each to consist of three members, who must be qualified electors of the county, and are required to be elected by the voters of the entire county from the...