Rogers v. Calumet Nat. Bank of Hammond
| Decision Date | 18 January 1938 |
| Docket Number | 26906. |
| Parties | ROGERS et al. v. CALUMET NAT. BANK OF HAMMOND et al. |
| Court | Indiana Supreme Court |
Appeal from Jasper Circuit Court; Moses Leopold, Judge.
Geo E. Hershman, of Crown Point, Harry Stilley, of Hammond, and Sam Sirois, Jr., of Crown Point, for appellants.
Gerald A. Gillett and Kal Waller, both of Hammond, for appellees.
The city of Hammond is a municipal corporation of the second class. By an ordinance of its common council, adopted October 25, 1933, supplemented by another adopted February 14, 1936 the city created a department of waterworks and provided for the election of five trustees thereof by the council for terms of one year and until their successors were elected and qualified. These ordinances were authorized and proper by virtue of authority granted by chapter 235 sections 1-3, Acts of 1933, Burns' Ann.St.1933, §§ 48-5301 to 48-5303, Baldwin's Ind.St.1934, § 12788 to 12790.
Pursuant to the ordinances referred to above, the council, on November 19, 1936, elected Columbus Smith, Edward Eggebrecht, Roy Rogers, Melvin Miles, and Steven D. Moskoff as members of the board of trustees of the department of waterwords of said city. They will hereafter be referred to in this opinion as the 'old board.'
In 1937 the General Assembly amended section 3 of chapter 235, Acts of 1933, supra, to read as follows:
'Upon the expiration of the term of office of each of said trustees, the mayor of such city shall appoint a successor to be approved by the council of said city to serve for a term of four years from the date of such appointment.'
This amendment became effective on March 9, 1937, and is chapter 167, Acts of 1937, Burns' Ann.St.1933, § 48-5303, Pocket Supp., Baldwin's Ind.St.1934,§ 12790, May, 1937, Supp.
On March 11, 1937, the mayor of Hammond, presuming to act under the provisions of the amendment of 1937, appointed Roy Rogers, Steven D. Moskoff, Herman Scurfield, Leonard Rosene, and Percy T. Smith as trustees of the department of waterworks, but these appointments were not approved by the common council. The trustees appointed by the mayor will hereinafter be referred to as the 'new board.'
Between March 11, 1937, and March 31, 1937, when this action was commenced, the appellee the Calumet National Bank of Hammond was the depository of the department of waterworks, and as such had custody of its funds. During that period both boards assumed to function, and the bank became apprehensive as to its liability if it should honor checks drawn by either. It therefore instituted this action under the Declaratory Judgment Act, Acts 1927, c. 81, Burns' Ann.St.1933, §§ 3-1101 to 3-1116, inc., Baldwin's Ind.St.1934, §§ 438 to 453, inc. The members of both the old and new boards, the city of Hammond, the mayor, and the members of the common council were made parties defendant. The complaint alleged substantially the facts above recited, and asked the court for a declaration determining the rights of the bank with respect to honoring and paying checks drawn on the account of the department of waterworks.
The venue of the cause was changed to the Jasper circuit court, where the issues were closed and the cause tried. As to the issues, we think it sufficient to say that the members of both boards presented cross-complaints or affirmative answers wherein they asserted their respective claims to the offices in question and asked for a declaratory judgment to that effect.
The cause was tried by the court on a stipulation of facts, supplemented by oral testimony. The trial court made a finding and rendered its judgment, holding that the trustees elected by the common council prior to the enactment of the amendment of 1937 were entitled to be recognized by the appellant bank as the trustees of the department of waterworks of the city of Hammond until such time as the appointment of the members of the new board was approved by the common council of the city. The appellants, who are members of the new board, filed their motion for a new trial on the grounds: ; and The court overruled the motion for a new trial, an exception was saved, and this ruling is the only error assigned.
The appellees contend, in support of the finding and judgment of the trial court, that: (1) A proper interpretation of the Acts of 1937, c. 167, p. 871, Burns' Ann.St.1933, § 48-5303, Pocket Supp., Baldwin's Ind.St.1934, § 12790, May, 1937 Supp., required that the appointment of the members of the new board by the mayor of Hammond on March 11, 1937, should have been approved by the common council; (2) that section 3 of article 15 of the Constitution of Indiana guaranteed to the members of the old board the right to serve out the terms for which they were appointed and until their successors were appointed and qualified, irrespective of chapter 167, Acts of 1937; and (3) that the members of the new board must recover, if at all, on the strength of their own title, and not upon any alleged weakness in the title of the members of the old board to the offices in question.
Appellants contend, on the other hand, that: (1) Chapter 167, Acts of 1937, did not require the approval of the appointment of the members of the new board by the common council; (2) that section 3 of article 15 of the State Constitution has no application, because the new board was legally appointed; and (3) that since this action is prosecuted under the Declaratory Judgment Act, and not by way of quo warranto, the title to the offices was not in issue, and that it was sufficient for the members of the new board to establish their status as de facto officers.
It appears from the stipulation joined in by all the parties that the members of the new board 'were duly qualified as provided by law and each qualified according to Senate Bill 176 of the Acts of the General Assembly of the State of Indiana for the year 1937, the defendants Percy T. Smith, Edward T. Eggebrecht and Melvin Miles, however, undertaking to stipulate in nowise touching the validity or constitutionality, legality or force and effect of Senate Bill 176 of the Acts of the General Assembly of the State of Indiana for the year 1937'; that the appointments of the members of the new board 'were never submitted to or approved by the Common Council of said City, by ordinance, resolution or any other manner' and 'it is further stipulated and agreed by and between the parties hereto that the members of said Board of Water Works so appointed by the Mayor now claim to be in possession of said office and to be the duly appointed, qualified and acting members of the Board of Water Works of the City of Hammond.'
It is also made to appear from the oral testimony that from the date of their alleged appointment on March 11th until March 31st, when this action was begun below, the members of the new board claimed the offices in controversy, held meetings, and performed duties pertaining to the same, all under color of their said appointment.
We will first consider the statute here involved, chapter 167 Acts 1937, Burns' Ann.St.1933, § 18-5303, Pocket Supp., Baldwin's Ind.St.1934, § 12790, May, 1937 Supp. Its effect was to terminate the terms of trustees of departments of waterworks elected by the common councils of all cities, other than those of the fifth class, as authorized by chapter 235, Acts 1933, Burns' 1933, §§ 48-5301 to 48-5303, Baldwin's 1934, ...
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Rogers v. Calumet Nat. Bank of Hammond, 26906.
...213 Ind. 57612 N.E.2d 261ROGERS et al.v.CALUMET NAT. BANK OF HAMMOND et al.No. 26906.Supreme Court of Indiana.Jan. 18, Action by the Calumet National Bank of Hammond, Ind., against Roy Rogers and others and Columbus Smith and others, claiming to be members of the board of trustees of the de......