State ex rel. Hogue v. Slack, 25520.
| Decision Date | 02 October 1928 |
| Docket Number | No. 25520.,25520. |
| Citation | 200 Ind. 241,163 N.E. 21 |
| Parties | STATE ex rel. HOGUE v. SLACK. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Marion Circuit Court; Harry O. Chamberlin, Judge.
*21For majority opinion, see 162 N. E. 670.
I believe the judgment should be reversed. The first question to decide is, Was John L. Duvall elected to the official office, mayor? I fail to find in the information an allegation that Duvall was elected at the election November 3, 1925. If the decision is that he was so elected, the case is ended. If he was not elected to the office of mayor, the inquiry, then, is concerning the claims of relator Hogue. Relator's claim is founded upon his information, the details of which are given here quite fully, and somewhat in the language of the information.
The information: Samuel Lewis Shank was elected mayor November 8, 1921. He qualified by oath, began his official term at noon, January 2, 1922, and served the full term, which ended at noon, January 4, 1926. After entering upon the duties of the office, Mayor Shank appointed this relator city controller (comptroller), who qualified for and possessed the office until noon, January 4, 1926.
At the city election, November 3, 1925, John L. Duvall, who was a candidate for the office of mayor, received a higher number of votes than his one opponent, by a majority of 8,974 votes. Within 30 days after the day of election Duvall filed with the city clerk a statement in writing, subscribed and sworn to by him, which set forth all moneys and other valuable things contributed, expended, or promised to aid and promote his candidacy for the office of mayor. Upon presentation of the statement of promises and money expended to the city clerk, that official issued to Duvall a certificate of election, which the newly elected Mayor Duvall presented to Mayor Shank at noon January 4, 1926; and Shank surrendered the office, together with all books, records, and papers belonging thereto. The same day that the new mayor took the office he appointed one William C. Buser to the office of city controller and fixed the time of the beginning of the term as January 4, 1926. Buser presented a certificate of his appointment as controller to this relator, and relator surrendered the office to the new appointee, believing that the certificate was valid. Buser, at the time that he presented his certificate of appointment to relator, had knowledge that Duvall was ineligible to the office of mayor and that he was an intruder therein.
Duvall, prior to the day of the general election, did unlawfully, directly and indirectly, offer and give bribes, threats, and rewards to secure his election, to wit, he offered and promised one William H. Freeman to appoint him as a member of the board of works if he became mayor; he offered and promised Harvey Bedford to appoint him superintendent of parks if he became mayor; he offered and promised one George Elliott to appoint him a member of the board of park commissioners if he became mayor; he offered and promised George S. Henninger, Oren E. Davis, and Ray Millikan that he would, if elected mayor, appoint members of an organization, then and there represented by them, to fill 85 per cent. of the positions which he could fill by appointment as mayor. Freeman, Bedford, Elliott, Henninger, Davis, and Millikan were each of them, at the time such promises and offers were made, duly qualified electors at the regular city election. The promises and offers so made, were for the purpose of inducing and procuring the persons named as promisees to vote, work for, and aid Duvall to secure the election as mayor. On or about November 2, 1925, Duvall unlawfully offered and promised one William H. Armitage that if elected mayor Armitage might name two members of the board of works and one person for city civil engineer; and Duvall promised to appoint the men so named by Armitage to such public positions when he became mayor; the offer and promise so made to induce Armitage to vote, aid, and work for Duvall's candidacy for the office of mayor; and as a further consideration for the promise made by Duvall, Armitage agreed to and did pay to Duvall $10,000. Armitage was, at the time the promises were made, a qualified elector at the regular city election. The statement of money expended and promises made by Duvall in aid of his election so filed with the city clerk falsely and fraudulently represented that the only promise he made to aid or promote his candidacy for and his election to the office of mayor was that prior to the time of his becoming a candidate he agreed to two recommendations for positions, which were canceled before he became a candidate to the office; all of which representations were false, and known to be false by Duvall at the time he so made *22them. The city clerk at the time he issued to Duvall the certificate of election believed and relied upon the false and fraudulent statement. When Mayor Shank surrendered the office and the books and papers pertaining thereto to Duvall, he did so believing Duvall to be duly and legally qualified to take and hold the office. So with relator, when he relinquished the office of controller to Buser, he did so believing and relying upon the appointment of Buser by a legally qualified mayor, wholly without knowledge that Duvall was disqualified to hold the office of mayor and unauthorized to appoint Buser city controller, and that the appointment of Buser was void as to the relator.
May 17, 1927, an affidavit was filed in the Marion criminal court which charged that Duvall violated the Corrupt Practices Act. The charge was based upon the alleged unlawful promise to William H. Armitage hereinbefore mentioned. Duvall pleaded not guilty. The trial resulted in a verdict of guilty. The judgment was against Duvall of a fine and imprisonment. Relator's first knowledge that Duvall was not qualified to hold the office of mayor was his conviction of the criminal charge of violation of the Corrupt Practices Act. October 27, 1927, Duvall, then claiming to be the legal mayor, attempted to and purported to resign, and in form did resign as mayor, and abandoned the office and surrendered the possession of the office to one Maude E. Duvall, since which time he does not claim the office of mayor. At the time of such attempted resignation, Maude E. Duvall claimed to be the duly appointed and qualified city controller. She was pretending to act as such officer under an alleged appointment by John L. Duvall, made September 26, 1927. Upon such attempted resignation by John L. Duvall as mayor, Maude E. Duvall claimed that she became acting mayor. She continued to occupy the office of acting mayor by virtue of such pretended appointment, and until she attempted to resign. The same day, to wit, October 27, 1927, while pretending to act as such acting mayor, she attempted and purported to appoint one Ira M. Holmes to the office of city controller. Holmes immediately purported to qualify as such city controller. He claimed that office until the purported resignation of Maude E. Duvall as acting mayor on the same day. Upon her purported resignation of the office of acting mayor she surrendered possession of the office of mayor to Holmes, since which act she has not and does not now claim the office of mayor. Holmes claimed he was entitled to act as mayor, and attempted and purported to qualify as such, took possession of the office, and retained the same until he was restrained from so doing by an order made by the Marion superior court October 28, 1927. The same day, to wit, October 27, 1927, the common council by resolution attempted and purported to declare the office of mayor vacant, and attempted and purported to elect, choose, and appoint one Claude E. Negley, who then was a member of the common council, to act as mayor pro tempore until the common council should choose a permanent mayor, and it then attempted and purported to fix November 8, 1927, as the date for choosing such permanent mayor. Negley took possession of the office of mayor October 28, 1927, and held it until November 8, 1927, by virtue of his election as mayor pro tempore by the common council. October 31, 1927, the order which restrained Holmes from holding the office was by the court continued as a temporary injunction against Holmes, and he therefore publicly abandoned his claim to the office of mayor and does not now claim the same.
Relator October 24, 1927, and before the attempted resignation of Duvall, demanded of Duvall the office of mayor together with the books and papers belonging thereto. Duvall refused the demand. The same day this relator instituted proceedings in the Marion circuit court by information, of the nature of the suit at bar, against Duvall for usurpation of the office of mayor. Duvall appeared by attorney as defendant. This suit is now pending. Relator November 4, 1927, demanded the office of mayor and the books and papers belonging thereto from Negley. The demand was refused, and this relator was wrongfully kept out of possession of the office from October 28, 1927, to November 8, 1927.
Relator November 4, 1927, notified the common council, by letter to the president thereof, of relator's claim to the office of mayor.
November 8, 1927, the day fixed by the common council to elect a mayor, it attempted and purported to elect, choose, and appoint the defendant, L. Ert Slack, as permanent mayor to fill the alleged vacancy in that office. Immediately after such election defendant attempted and purported to qualify as such mayor, Negley surrendered possession of the office to defendant, and defendant took possession of the office of mayor, and has at all times since held such possession and claims and pretends to be entitled to the office.
Relator November 10, 1927, demanded of defendant the office of mayor and possession of the books and papers belonging thereto. The demand was refused, and defe...
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