State ex rel. Prilliman v. Town of Tipton

• Decision Date: 05 January 1887
• Docket Number: 12,361
• Citation: 9 N.E. 704,109 Ind. 73
• Parties: The State, ex rel. Prilliman, v. The Town of Tipton et al
• Court: Indiana Supreme Court

9 N.E. 704

109 Ind. 73

The State, ex rel. Prilliman, v. The Town of Tipton et al

No. 12,361

Supreme Court of Indiana

January 5, 1887

From the Tipton Circuit Court.

The judgment is affirmed, with costs.

J Jones, for appellant.

J. I Parker, R. B. Beauchamp and J. A. Swoveland, for appellees.

OPINION

Niblack, J.

This was a proceeding in the nature of a writ of quo warranto, prosecuted in the name of the State, on the relation of Martin Prilliman, against the town of Tipton, now claiming to have become an incorporated city, under the name of the City of Tipton, for the purpose of testing the legality of the alleged city organization. All the persons claiming to act as officers under the organization known as the City of Tipton were also made defendants.

The information gave the court below to understand and be informed that Prilliman, the relator, was a resident and duly qualified voter within the corporate limits of the town of Tipton, as theretofore known, and the owner of real estate and a taxpayer therein; that, on the 20th day of November 1883, a petition was presented to the board of trustees of said town of Tipton, signed by one-third of the qualified voters of such town, asking that a census be taken of the inhabitants thereof under the order of said board; that said board thereupon made an order, and caused it to be spread on the records of said town, requiring the marshal to take a census of all the inhabitants of said town, that is to say, of all persons residing within its limits forty days anterior to the time of making such order, and to make a return of such census within sixty days thereafter; that a warrant so directing the marshal was accordingly issued to him, but that said board of trustees did not provide or furnish proper forms to enable the marshal to take such census; that the marshal never made any return of the warrant so issued to him, or of the census he was required to take; that forty days prior to the date of the order requiring the census to be taken as stated, there were only fifteen hundred and fifty persons residing within the corporate limits of said town; that, on the 15th day of January, 1884, said board of trustees made a pretended record showing that said warrant, and a census of said town, had both been returned, and that according to such pretended census said town contained a population of two thousand persons; that said record was false, and was known to be so by said board of trustees when it was made; that on said 15th day of January, 1884, said board of trustees also ordered a pretended election to be held to determine whether said town of Tipton as a municipal organization should be changed to that of a city; that a majority of the legal voters of said town did not vote in favor of adopting a city charter for the government of its inhabitants; that said board of trustees, pretending that a majority of said duly qualified voters had voted in favor of adopting a city charter, ordered that another election should be held, on the 11th day of March, 1884, for the purpose of electing persons to fill the various offices provided for in a city about to be organized under the laws of this State; that at said pretended election certain persons, naming them, and made defendants in this proceeding, as herein above stated, claimed to have been severally elected to fill said offices; that all the persons, claiming to have been so elected, had entered upon the duties of their several pretended offices, and had usurped the franchises and offices of a city government. Wherefore the defendants were required to answer as to the several matters alleged against them.

A demurrer was sustained to the information, and final judgment was rendered upon demurrer, in favor of the defendants.

Section 1131, R. S. 1881, authorizes proceedings in the nature of quo warranto to settle questions similar to those sought to be raised by...