State ex rel. Fares v. Karger
| Decision Date | 09 March 1948 |
| Docket Number | 28377. |
| Citation | 77 N.E.2d 746,226 Ind. 48 |
| Parties | STATE ex rel. FARES v. KARGER. |
| Court | Indiana Supreme Court |
Appeal from Circuit Court, Gibson County; A. Dale Eby, Judge.
Theodore Lockyear and Elmer Q. Lockyear, both of Evansville, for appellant.
W D. Hardy, of Evansville, for appellee.
This action is an information in the nature of quo warranto by relator.
The information is at issue by an answer in two paragraphs, the second being affirmative. The reply to the second paragraph admits the averments contained therein.
There was a stipulation of facts, the substance of which is that the relator and the appellee had each duly and timely qualified as township trustee of the township as provided by law.
The admitted averments of the petition, the admitted averments of the second paragraph of answer and the stipulation of facts, constitute all the facts before the court below.
These facts may be summarized as follows: At the November 5, 1946 general election, Clyde M. Hesler was elected and duly certified as trustee of Center Township, Vanderburgh County Indiana. He died November 10, 1946 without having qualified by giving bond and taking the oath of office. On January 6, 1947, by majority vote, the Board of Commissioners of the county passed a resolution stating that the appellee, Karger, the incumbent trustee of the township, had been serving as its trustee for eight consecutive years and by virtue of § 65-101, Burns' 1943 Repl., was ineligible to continue to serve. The board then found that, because of these facts a vacancy existed in the office, and appointed the relator to fill the vacancy. The relator then demanded the office from appellee, which demand was refused. Appellee was elected to the office at the general election November 3, 1942, duly qualified and assumed the duties of the office January 1 1943. He continued in office after the expiration of his elective term, performing all the duties thereof, because his successor did not qualify as such official.
Upon these facts the trial court rendered a finding and judgment for appellee. A motion for new trial for the statutory reasons was overruled, from which this appeal is taken. The error assigned is overruling the motion for new trial.
A single question is presented for our consideration, viz.: Under the facts presented, was there a vacancy in the office of Trustee of Center Township, Vanderburgh County at the time the vacancy was declared by the Board of Commissioners of the county?
Our court has often held that 'the appointing authority may appoint an official to fill a vacancy in an office, without waiting for a judicial determination of vacancy, if the facts existing at the time are such that a judicial determination would result in the declaration of vacancy.' State on the relation of Leal v. Jones, 1862, 19 Ind. 356, 358, 81 Am.Dec. 403; Relender v. State ex rel. Utz, Prosecuting Attorney, 1898, 149 Ind. 283, 288, 49 N.E. 30; Wells v. State ex rel. Peden, 1911, 175 Ind. 380, 386, 94 N.E. 321, Ann.Cas.1913C, 86; Smith v. State ex rel. Canary, 1934, 206 Ind. 138, 141, 188 N.E. 576. State ex rel. Kopinski v. Grzeskowiak, 1945, 223 Ind. 189, 194, 59 N.E.2d 110.
At least one limiting qualification of a citizen to hold the office of township trustee is provided by statute thus: Acts 1917, ch. 171, § 1, p. 681, Burns' 1933 § 65-101.
Appellant relies upon the decision in Gosman v. State ex rel. Schumacher, 1885, 106 Ind. 203, 6 N.E. 349. That case held that appellant, Gosman, having served as clerk of the Dubois Circuit Court for two full consecutive elective terms of four years each, was ineligible to serve longer because Art. 6, § 2, Indiana Constitution, provides in substance as follows: '* * * The Clerk, * * * shall continue in office four years; and no person shall be eligible to the office of Clerk, * * * more than eight years in any period of twelve years. * * *' That because of appellant's ineligibility so caused, a vacancy existed in the office, which authorized the Board of Commissioner to appoint a successor.
However, a case identical with relator's in all material facts was before this court in State ex rel. Reese v. Bogard, 1891, 128 Ind. 480, 27 N.E. 1113. In that case the rule with respect to eligibility as announced in the Gosman case was modified as will appear from quotations from the opinion as follows:
'The question we are required to examine and pass upon is, did the act of 1889, supra, render him ineligible to hold after the expiration of his second term until his successor should be elected and qualified?
After further considering the matter the court finally determined that by Acts 1889, § 2, p. 425, providing as follows:
'Any person who has held the office of Township Trustee of any township in this State for two terms consecutively at the date of the next township election in April, 1890, shall not be eligible to said office for the next ensuing term; and thereafter no person shall be eligible to the office of Township Trustee more than four years in any period of eight years.'
'* * * it was the purpose of the legislature to prevent an elector from holding, by election, a new and additional term of four years, after having held the office for two consecutive terms immediately preceding the election held in April, 1890.'
The court further stated: ...
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