State ex rel. Schrisler v. Winter

• Decision Date: 09 June 1897
• Docket Number: 18,145
• Parties: State, ex rel. Schrisler, v. Winter
• Court: Indiana Supreme Court

47 N.E. 462

148 Ind. 177

State, ex rel. Schrisler, v. Winter

No. 18,145

Supreme Court of Indiana

June 9, 1897

From the Blackford Circuit Court.

Affirmed.

Elisha Pierce, John A. Bonham, Aaron M. Waltz, D. H. Fouts, B. G Shinn and E. Shinn, for appellant.

Cantwell Cantwell & Simmons and Jay A. Hindman, for appellee.

OPINION

Hackney, J.

This was a proceeding in the nature of a quo warranto to oust the appellee from the office of treasurer of Hartford City, the relator claiming the office by election. The petition was in two counts; the first claiming the office from May 10, 1896, and the second claiming it from September 7, 1896. The trial court sustained a demurrer to each count, and that ruling presents the only question for consideration.

Each count alleged that in April, 1894, the then town of Hartford City was incorporated as a city; that on the second Tuesday in May, 1894, the appellee was elected, with other officers of said city, to the office of treasurer, and thereafter qualified and discharged the duties of said office, and was occupying the same when this proceeding was instituted; that at the election in said city on the first Tuesday in May, 1896, the relator and others were candidates for said office, and that he was elected thereto and received a certificate of election; that he qualified and demanded from the appellee, on May 10 and September 7, 1896, the possession of said office, which was refused. The petition is sought to be supported upon the theory that on the second Tuesday in May, 1894, the office of treasurer of said city was vacant and that the election of the appellee on that day was to fill the vacancy, it is said for the unexpired part of the term ending, from one standpoint in September, 1894, and from another, when his successor was elected and qualified.

Vacancies in the office of city treasurer are not filled by election, but by appointment of the common council. Sections 3483, 3484, Burns' R. S. 1894. A consideration of section 3468, Burns' R. S. 1894, does not deny this conclusion, since that section does not provide for the filling of vacancies in that office, nor does it prescribe the times when, under the election therein provided for, the officer shall begin or shall end his services.

It is provided therein that "the trustees or common council of such town or city shall, within five days after the filing of" the certificate of the election to become a city divide the city into wards, and publish notice that an election will be held on a day and at places named "for the election of the city offices specified in such notice." It must be that this provision is for a special election to fill offices for a newly created city. Whether such offices are vacant in the sense in which that word is employed in sections 3483, 3484, supra, is not, in our view of the case, material. But if it should be held that the special election was only for such offices as could not be filled by appointment, namely: councilmen, because none were in office to make the appointments to other offices, and city judge, because that is the only office the vacancy in which is filled by...