State ex rel. Denton v. Kinkle
| Decision Date | 28 June 1949 |
| Docket Number | 28544. |
| Citation | 86 N.E.2d 677,227 Ind. 564 |
| Parties | STATE ex rel. DENTON v. KINKLE. |
| Court | Indiana Supreme Court |
Appeal from Gibson Circuit Court; A. Dale Eby Judge.
Benjamin F. Zieg and W. D. Hardy, Evansville, for appellant.
Darby & Fitzgerald, Wm. Fitzgerald, Leo Warren, and Warren Merrell & Combs, Evansville, for appellee.
This action is an information in the nature of quo warranto brought by the appellant as relator on November 17, 1948. The appellee, who was named as respondent, appeared and filed answer and his counter information. Upon the trial the Court found against the appellant upon his complaint or information, and for the appellee upon his counter information; that the appellant be ousted from the office of county commissioner for the First Commissioner District of Vanderburgh County, Indiana, and that appellee was entitled to the possession of said office. Upon this finding, judgment was entered, and it is from this judgment that this appeal was taken. No question is raised as to the pleadings and the case was tried upon an agreed statement of facts.
The material facts as they appear upon the record are in substance as follows: that at the general election held in Vanderburgh County, Indiana, in November, 1946, one Charles P. Schreck was duly elected to the office of county commissioner for the First County Commissioner District of Vanderburgh County for the term of three years commencing on the 1st day of January, 1948; that before qualifying for said office to which he had been elected, and before taking the oath of office thereto, the said Charles P Schreck died; that this appellant was duly elected commissioner for the First County Commissioner District of said county at the general election held in November, 1944, for a term of three years beginning on the 1st day of January, 1945, and ending January 1, 1948, and duly qualified as commissioner and assumed the duties of the office on the 1st day of January, 1945, and held the office and discharged and performed the duties of commissioner in said office until the 1st day of January, 1949; that from the 1st day of January, 1949, until this time appellant has refused to surrender the office as commissioner and has asserted and maintained his right to occupy the office and to discharge the duties thereof during the full term for which Charles P. Schreck was elected; that at the general election held on November 2, 1948, the name of the appellee, Edward H. Kinkle, appeared on the ballots and voting machines as a candidate for the office of county commissioner for said First District and that the board of canvassers declared appellee to have been elected to the office and certified his election to the clerk of the Vanderburgh Circuit Court; that the official notice of the election, insofar as the same appertains to the office of county commissioner of Vanderburgh County for the election on the 2nd day of November, 1948, stated that among the other officers to be elected at that time there would be a county commissioner elected for each of the First, Second and Third County Commissioner Districts; that after said election the clerk of the Vanderburgh Circuit Court signed and delivered to the appellee a certificate of election to the office of county commissioner for the First District; that the appellee thereupon subscribed his official oath and demanded that he be recognized as the duly elected and qualified commissioner for the First Commissioner District; that the appellant has at all times refused to vacate the office of county commissioner or to surrender the same to the appellee, and has insisted upon his right to fill the unexpired term for which Charles P. Schreck was elected by virtue of appellant's election to the office at the November Election in 1944; that the election on November 2, 1948, was the regular and proper time to elect the commissioners from both the Second and Third Commissioners Districts of said county and that, but for the death of the said Charles P. Schreck, the commissioner for the First Commissioner District would not have been elected until the regular election in 1950; that the term of office for the commissioner elected for the Second District began on January 1, 1949, and the term of office for commissioner elected for the Third District begins on the 1st day of January, 1950; that the appellee is asserting claim to said office solely by reason of his election at the November, 1948, Election.
The appellant, by his motion for a new trial and by his assignment of error, has properly presented the questions hereinafter discussed and decided.
The appellant argues that there was a vacancy in the term of office on account of the facts herein, which should have been filled by the commissioners in office. In support of this argument he relies upon § 26-601, Burns' 1933, 1948 Replacement, Acts 1945, ch. 261, § 1, p. 1189, which reads as follows:
'Whenever a vacancy shall occur in the office of commissioner; or whenever a commissioner who has qualified shall die or resign before the commencement of the term for which he was elected and no general election will occur between the time of such death or resignation and the beginning of such term, the commissioners in office at any time after the occurrence of such death or resignation so producing such vacancy or prospective vacancy, wherein such vacancy or prospective vacancy in the office of commissioner shall occur for any reason, shall elect some qualified elector to fill such vacancy or prospective vacancy, from and after the time of commencement of such term, who shall serve for the remainder of the term, or for the entire term as the case may be, for which the person so dying or resigning was originally elected or appointed.'
Under the facts in this case there was no vacancy in office at the time that the appellee was elected. Kimberlin v. State ex rel. Tow, 1891, 130 Ind. 120, 29 N.E. 773, 14 L.R.A. 858, 30 Am.St.Rep. 208; State ex rel. Culbert v. Linkhauer, 1895, 142 Ind. 94, 41 N.E. 325;...
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