State ex rel. Ewing v. Bell

• Decision Date: 12 October 1888
• Citation: 116 Ind. 1,18 N.E. 263
• Parties: State ex rel. Ewing v. Bell.
• Court: Indiana Supreme Court

116 Ind. 1

18 N.E. 263

State ex rel.Ewing

v.Bell.

Supreme Court of Indiana.

October 12, 1888.

Appeal from circuit court, Huntington county; Henry B. Sayler, Judge.

Quo warranto on relation of William Ewing against George W. Bell. Relator appeals from judgment sustaining demurrer to complaint.Milligan & Whitelock, for appellant. Kinner & Dille, for appellee.

Niblack, C. J.

The complaint or information in this case was substantially as follows: “The state of Indiana on the relation of William Ewing, plaintiff, complains of the defendant, George W. Bell, and gives the court to understand that the county of Huntington was organized into districts, as they now exist, for the election of county commissioners, at the June term, 1839, of the board doing county business, and said districts were numbered one, two, and three. And your relator further says that in the year 1839 Nathan Fisher was duly elected and qualified a commissioner for district No. 2, to serve for a term of three years; that his term of office expired in the year 1842, and his successor was elected and entered upon the duties of his office at the close of the term of the said Nathan Fisher; and the succession of said office and the terms thereof has been continuous until the year 1884, when the defendant, George W. Bell, was, at the November election in said year, duly elected commissioner for said district No. two, (2,) and during said month of November, 1884, qualified as such commissioner; that the term of office for which he was elected expired on the first Monday of December, 1887, the same being the 5th day of said month. And your relator further avers that at the annual election held on the 2d day of November, 1886, in the county of Huntington and state of Indiana, said relator was a male citizen of the state of Indiana, over twenty-one years old, a resident of said Second commissioner's district of the county of Huntington, and in all things eligible to the office of commissioner of such district; that at said election the relator received the highest number of votes cast for that office, and was accordingly declared elected to the same; that on the 11th day of November, 1886, the relator took and subscribed an oath of office which was indorsed upon his certificate of election; that on the 5th day of December, 1887, the relator appeared at the room occupied by the board of commissioners of the county of Huntington, and demanded possession of the office to which he had been elected, which was refused; that the defendant unlawfully continued to hold said office, and to intrusively exercise the duties thereof, thus ousting and excluding the relator from the possession of the same.” Wherefore a writ in the nature of a writ of quo warranto, and all other proper relief, were demanded. A demurrer was sustained to the complaint, and the defendant had final judgment upon demurrer. This appeal, therefore, presents only the question whether, upon the facts as stated, the relator is entitled to the possession of the office to which he claims to have been elected.

Since the adoption of biennial elections, and in the application of such elections to the office of county commissioner in the various counties of the state, much doubt and uncertainty have arisen in many cases as to the time at which the term of that office begins, as well as ends. In an effort to relieve the doubt and uncertainty thus often arising, the general assembly, on the 7th day of March, 1885, passed an act in the following words: “Whereas, there is uncertainty concerning the time, of the beginning and ending of the terms of office of county commissioners; and whereas, such uncertainty has resulted in much irregularity and in litigation, therefore, for the purpose of preventing litigation-Section 1. Be it enacted by the general assembly of the state of Indiana, that the terms of offices of commissioners shall be three years, and shall begin on the first Monday in December; and the term of office of no two districts in the...