State ex rel. Gleason v. Gerdink

• Citation: 90 N.E. 70,173 Ind. 245
• Decision Date: 10 December 1909
• Docket Number: No. 21,438.,21,438.
• Parties: STATE ex rel. GLEASON v. GERDINK.
• Court: Indiana Supreme Court

173 Ind. 245

90 N.E. 70

STATE ex rel. GLEASON

v.GERDINK.

No. 21,438.

Supreme Court of Indiana.

Dec. 10, 1909.

Appeal from Superior Court, Vigo County; John E. Cox, Judge.

Quo warranto by the State, on the relation of William T. Gleason, against John W. Gerdink. From a judgment for defendant, relator appeals. Affirmed.

O. D. Davis and J. T. Walker, for appellant. McNutt, McNutt & Wallace, Frank S. Rawley, Lamb, Beasley & Sawyer, Lewis Levique, and Foley & Royse, for appellee.

HADLEY, C. J.

This is a proceeding in quo warranto to contest with appellee the right to the office of city judge for the city of Terre Haute. The incumbent of the office having resigned, to fill the vacancy thus occasioned the mayor of the city, acting under section 218 of the cities and towns act of 1905 (Acts 1905, p. 378, c. 129; section 8845, Burns' Ann. St. 1908), appointed appellee, and the Governor, assuming to act under constitutional powers, appointed the relator to the same vacancy. Both appointees proceeded to qualify under their respective appointments, and appellee having taken possession of the office, and all books, papers, and property belonging thereto, and entered upon a discharge of the duties thereof, this action was instituted by the relator to oust him therefrom.

Two questions arise in the case: First. Has the superior court jurisdiction of the action? Second. Is section 218 of the cities and towns act of 1905 in conflict with section 18, art. 5, State Const.?

1. The judicial power of the state shall be vested in a supreme court, in circuit courts, and such other courts as the General Assembly may establish. Section 1, art. 7, Const. The Legislature had power to establish the Vigo superior court, and to define its jurisdiction. Sauer v. Twining, 81 Ind. 366. The jurisdiction of that court is defined in the act creating it (Acts 1881, p. 94, c. 19, § 10), as follows: “Said court, within and for said county, shall have original and concurrent jurisdiction with the circuit court in all civil cases, and jurisdiction concurrent with the circuit court in all cases of appeal from justices of the peace, boards of county commissioners, and mayors or city courts in civil cases, and all other appellate jurisdiction in civil causes now vested in, or which may hereafter be vested by law in the circuit courts; and said court shall also have concurrent jurisdiction in all actions by or against executors, guardians, or administrators: Provided, however, that said superior court hereby constituted, shall not have jurisdiction in matters or probate or the settlement of decedents' estates, but the same shall be and remain within the jurisdiction of the circuit court as now provided by law.” The Civil Code provides “that there shall be but one form of action for the enforcement, or protection of private rights, and the redress of private wrongs, which shall be denominated a civil action.” Section 249, Burns' Ann. St. 1908. An information in the nature of quo warranto to recover possession of an office against an intruder is an action for the enforcement, or protection of a private right, and hence a civil action. Robertson v. State, 109 Ind. 79, 86, 10 N. E. 582, 643. It is certain that quo warranto in modern jurisprudence, whatever it may have been originally, is not a criminal action, and we see no reason for doubting the jurisdiction of the superior court in this case. Hockemeyer v. Thompson, 150 Ind. 176, 48 N. E. 1029, 49 N. E. 1059.

2. Section 218 of the act of 1905 enacts: “That in case of a vacancy in the office of city judge the mayor shall appoint a successor, who shall hold such office during the unexpired term.” Section 18 of article 5 of the Constitution provides, among other things, that the Governor shall, by appointment, fill any vacancy that may occur “in the office of a judge of any court, which shall expire when a successor shall have been elected and qualified.” The real question under the second proposition, then, may be thus stated: Does the constitutional phrase “judge of any court” embrace a judge of a city or municipal court? Or, in other words, does it embrace any other than the presiding officer of a court having the dignity of a state court? At the time of the adoption of the Constitution, the Supreme and circuit courts were all the courts that existed in the state that were recognized as such. We had the courts of the justices of the peace at that time, and had had them since the organization of the state, but there is every reason for believing that the framers of the Constitution did not regard them as belonging to the same class with the Supreme, circuit, and “such other courts as the General Assembly may establish” (mentioned in section 1, art. 7); that is, courts that the Legislature might create of like dignity, and of a general and state character similar to the circuit courts, such as the courts of common pleas, criminal, and superior courts, and as contradistinguished from inferior tribunals of a local character, and that it was not meant to include justices of the peace, or any other inferior officer or body endowed with judicial power for local purposes, as courts, within the meaning of the phrase, “judge of any court,” contained in section 18, art. 5. See reasoning in Railroad Co. v. Town of Whiting, 161 Ind. 233-238, 68 N. E. 266. This is plainly indicated by divers provisions of the Constitution. Justices of the peace were recognized as township officers, but not as vested with judicial powers, and it was provided (section 14, art. 7) that a sufficient number shall be elected by the voters of each township “and their powers and duties prescribed by law.” The legislative right to create and empower whatever county, township, and municipal officers may be deemed expedient is also clearly apparent. It is declared that “such other county and township officers as may be necessary shall be elected, or appointed, in such manner as may be prescribed by law.” Section 3, art. 6. And, further, that “all county, township and town officers shall reside within their respective counties, townships, and towns; and shall keep their respective officers at such places therein, and perform such duties as may be directed by law.” Section 6, art. 6. And still further: “Vacancies in county, township and town offices shall be filled in such manner as may be prescribed by law.” Section 9, art. 6. The word “town,” as used in this section, is generic, and includes cities. Indianapolis v. Higgins, 141 Ind. 1, 40 N. E. 671. It will thus be observed that there is constitutional warrant to create any kind of an office-judicial, executive, administrative, or what not-in the smaller governmental divisions that the Legislature may deem necessary to the proper administration of local affairs, and that vacancies in such offices may be filled in such manner as the Legislature prescribes. This comes near deciding our question. Under these provisions of the Constitution we have justices of the peace, county commissioners, mayors, town clerks, and city judges vested with judicial...