State ex rel. Minniear v. Eckman

• Court: Indiana Supreme Court
• Writing for the Court: Fansler, J.
• Citation: State ex rel. Minniear v. Eckman, 205 Ind. 550, 187 N.E. 327 (Ind. 1933)
• Decision Date: 02 November 1933
• Docket Number: 26,077
• Parties: State ex rel. Minniear v. Eckman

187 N.E. 327

205 Ind. 550

State ex rel. Minniear v. Eckman

No. 26,077

Supreme Court of Indiana

November 2, 1933

1. COUNTIES---Board of Commissioners---Meetings---Not Limited to Month of Beginning.---Section 5911, Burns 1926, providing for a regular session of the board of commissioners on the first Monday of each calendar month, does not limit the length of the session to the month in which it began but merely indicates the beginning of the term. p. 554.

2. COUNTIES---Board of Commissioners---Meetings---Statute---"Calendar Month."---The term "calendar month" means the time from any day of the month to the corresponding day, if any, and if not, to the last day, of the next month. (5911 Burns 1926.) p. 554.

3. COUNTIES---Board of Commissioners---Meetings---Length of Session---Statute.---In section 5911, Burns 1926, providing for meetings of county boards of commissioners to continue so long as the "necessary business of such session absolutely requires," the word "necessary" expresses mere reasonable convenience or usefulness; the word "absolutely" adds nothing to the word "requires," which is definite, except emphasis; the clause merely requiring that county business be performed diligently and promptly. p. 554.

4. EVIDENCE---Judicial Notice---Duties of County Board of Commissioners.---Courts will take judicial knowledge of the numerous projects that come within the scope of the statutory jurisdiction of a county board of commissioners, and that the county is a going concern and that its business is continuing. p. 554.

5. COUNTIES---Board of Commissioners---Meetings---Length of Session---Discretion.---Whether there is business requiring continuance of a session of the board of commissioners is a question to be determined within the discretion of the board and courts should not interfere with the exercise of such discretion. p. 555.

6. COUNTIES---Board of Commissioners---Meetings---Term Session---Adjourned Sessions.---Where the board of commissioners has determined that there is business to transact and adjourns its session until a given day for the purpose of transacting business, then at any meeting upon such day the board must be considered as doing business in term time. p. 555.

7. TOWNS---Township Trustee---Vacancy---How Filled.---Vacancies in the office of trustee are filled, primarily, by the board of commissioners. p. 556.

8. TOWNS---Township Trustee---Vacancy---Appointment at Adjourned Term of Commissioners.---Appointment of a township trustee on January 2 by the board of commissioners at an adjourned session of the December term of said board continued for the purpose of filling a vacancy occurring on January 1, was held valid. p. 557.

From Huntington Circuit Court; Frank O. Switzer, Special Judge.

Information by the State of Indiana on the relation of Lewis A. Minniear against Glade Eckman to determine title to office of township trustee. From a judgment for defendant, plaintiff appealed.

Affirmed.

Otto H. Krieg and Samuel E. Cook, for appellant.

Claude Cline, Mart O'Malley, and Emmett O. King, for appellee.

OPINION

Fansler, J.

An information in three paragraphs was filed by the appellant, alleging in substance that he was qualified to hold the office of township trustee of Salamonie township, Huntington county; that at the election on November 2, 1926, George E. Sale was elected trustee of said township, and thereafter qualified to hold the office; that on November 4, 1930, said Sale was re-elected as trustee of said township to succeed himself for the term beginning January 1, 1931, and that he duly qualified; that thereafter, on December 22, 1930, he died; that thus a vacancy was created for the remainder of his term ending December 31, 1930; that on December 24, 1930, the board of commissioners of said county was in adjourned session of the December term, and appointed the appellee as trustee to fill the unexpired term ending December 31, 1930. That he gave bond and qualified; that on December 31, 1930, the board of county commissioners, in what was designated as an adjourned session of the December term, 1930, appointed the appellee to fill the vacancy for the term beginning January 1, 1931; that on the same day the board of county commissioners made an order continuing the December term, 1930, from day to day until January 5, 1931; that on January 2, 1931, the auditor of the county declared that a vacancy existed, and appointed the relator as trustee of said township for the term beginning January 1, 1931, and mailed to the Superintendent of Public Instruction of the state a notice thereof; that on the same day the board of county commissioners, in a session which it designated as a regular session of the December term, 1930, confirmed its action of December 31, 1930, and reappointed the appellee as trustee for the term beginning January 1, 1931; that the appellee took possession of the office and has since held it. The judgment sought is that the relator be adjudged entitled to such office and to the possession of all books, records, and property thereof, and for damages.

The first paragraph is upon the theory that the order of the board of commissioners appointing the appellee, made on December 31, 1930, was null and void because on that day there was no vacancy in the office, and that the order made on January 2, 1931, was null and void, for the reason that the board of county commissioners had no power to extend the December term past the end of the calendar month of December. The second paragraph differs from the first only in that it alleges that the board of county commissioners continued in session after December 24th solely for the purpose of making such trustee appointment. The third paragraph is upon the theory that the law of 1865 gave the auditor the right to appoint the trustee in the event of a vacancy, and that the board of commissioners has no power to appoint in any event.

Error is predicated upon the sustaining of demurrers to each paragraph of complaint.

The question presented by the third paragraph of complaint has been expressly decided contrary to appellant's contention. Cooper, Auditor v. State ex rel. Bailey (1887), 113 Ind. 70, 14 N.E. 912.

It is conceded by the appellee that, since George E. Sale was elected and qualified for the term beginning January 1, 1931, a vacancy did not occur until the beginning of the term, and that the order of the board of commissioners entered on December 31, 1930, appointing the appellee to fill the term beginning January 1, 1931, was of no effect.

Section 12029, Burns 1926 (§ 16063, Baldwin's 1934), provides:

"All vacancies in the office of township trustee shall be filled by the board doing county business in term time, or by the auditor in vacation; and every trustee so appointed shall continue in office until his successor is elected and qualified."

Section 5911, Burns 1926 (§ 5221, Baldwin's 1934), provides:

"There shall be a regular session of the board of county commissioners, beginning on the first Monday of each calendar

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