State ex rel. Elliott v. Bemenderfer

• Decision Date: 24 June 1884
• Docket Number: 11,635
• Parties: The State, ex rel. Elliott, v. Bemenderfer
• Court: Indiana Supreme Court

96 Ind. 374

The State, ex rel. Elliott, v. Bemenderfer

No. 11,635

Supreme Court of Indiana

June 24, 1884

From the Elkhart Circuit Court.

Judgment affirmed, at the costs of the relator.

H. D Wilson, W. J. Davis and A. Anderson, for appellant.

J. H Baker and J. A. S. Mitchell, for appellee.

OPINION

Elliott, C. J.

The relator claims the office of county commissioner, and for the purpose of securing the office filed the information against the appellee who asserts a right to the same office. The information charges that the relator was elected commissioner for the second district of Elkhart county, at the general election in October, 1880, and that he was duly inducted into office in November of that year; that William McVitty, an eligible candidate, was duly elected as the relator's successor at the general election held in November, 1882, and within ten days from the time of receiving the certificate of election, duly subscribed the proper oath of office, which was endorsed on the back of the certificate as the statute requires; that on the 2d day of March, 1883, McVitty died, and that, at the time of his death, his term of office had not commenced; that on the 3d day of December, 1883, the board of commissioners declared that a vacancy existed by reason of McVitty's death, and elected the appellee to fill the vacancy.

The contention of the relator's counsel is that as McVitty died before his term of office commenced, he was never qualified, and, therefore, no successor to the relator was ever elected and qualified. This position is not tenable. The right of McVitty to the office was vested at the time he took the oath in the manner and form required by law, and his subsequent death did not entitle the relator to hold over. A vacancy resulted for the reason that a successor to the relator had been duly elected and qualified, and this having taken place his right to hold over terminated. It can not be legally possible that when the right to an office has once been destroyed or terminated, the subsequent death of the person who had been elected and who had duly qualified, revives the right which the election and qualification had put an end to, for the right to hold over exists only in cases where there is no legally elected and qualified successor. When the rights of the successor vest, those of the incumbent terminate, and they do vest after election and qualification according to law. This is clear on principle, but authorities are not wanting.

The term "qualified" as used in the statute does not mean possessed of the necessary political, mental and moral endowments, but means the acts performed after election, as taking an official oath and executing an official bond. The term "eligible" expresses the meaning which the relator asks us to affix to the term "qualified." Carson v. McPhetridge, 15 Ind. 327; Jeffries v. Rowe, 63 Ind. 592. Eligible means capable of being chosen; while qualified means the performance of the acts which the person chosen is required to perform before he...