State ex rel. White v. Scott

Decision Date09 December 1908
Docket NumberNo. 21,298.,21,298.
Citation171 Ind. 349,86 N.E. 409
PartiesSTATE ex rel. WHITE v. SCOTT.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Clark County; H. C. Montgomery, Judge.

Quo warranto by the state, on the relation of Roy L. White, against Levi H. Scott. From an adverse judgment, relator appeals. Reversed and remanded for new trial.Alexander Dowling and Geo. H. Hester, for appellant. Charles W. Smith, Geo. H. Voight, and Walter V. Bulleit, for appellee.

HADLEY, J.

This is a quo warranto proceeding, instituted on the relation of Roy L. White, to determine the title to the office of county superintendent of schools. The relator alleges in his information that, on the first Monday in June, to wit, on the 3d day of June, 1907, he was duly elected to the office of superintendent of the schools of Floyd county; also alleges that the defendant was his predecessor in said office, and that his term of office expired, by limitation, on said June 3d; that the relator was qualified and eligible to hold the office, and had made a demand upon defendant for the office, books, and papers belonging thereto, and had been refused; that there are five townships and five trustees in Floyd county; that all of the trustees were present at the meeting, and three of them voted for Melbert Williams, and two of them for the relator; that Williams was not then, and never was, eligible to hold the office of superintendent, because he did not then, and never did, hold a three years, a life, or a professional license, as required by the statute; that Williams did not attempt to assume or qualify for said office; that on July 3, 1907, upon notice given by the auditor, the five trustees again met at the auditor's office, and elected the relator as county superintendent by a unanimous vote; that relator qualified as such superintendent by giving bond and taking the oath of office, and has since then performed the duties of the office, except as prevented from so doing by defendant, as stated. The answer was a general denial. There was a special finding of facts and conclusions of law thereon in favor of the defendant, and, the relator's motion for a new trial having been overruled, he appeals.

It is disclosed by the special finding that the defendant, Scott, was elected and qualified as county superintendent on the first Monday of June, 1903, for the term of four years, and until his successor was elected and qualified; that Floyd county is divided into five townships, and on the first Monday in June, to wit, on the 3d day of June, 1907, the five trustees of the county met at the auditor's office to elect a county superintendent. Three of said trustees voted for Melbert R. Williams, and the remaining two for the relator, and then adjourned sine die. Williams was not then, and never was, eligible to hold the office of county superintendent. The three trustees who voted for Williams did so in good faith, believing him eligible. Williams did not qualify, or make any claim to the office. On June 18th the auditor notified the five trustees to meet at his office on July 3, 1907, to elect a superintendent. In compliance with the notice the trustees met and held an election. The relator received notice that he had been elected to said office, and on July 10, 1907, he filed with the auditor of said county his official bond as such superintendent, approved by the auditor, and took the oath of office, since which time he has claimed the right to perform the duties of said office, and before the commencement of this action demanded of the defendant the possession of the books, papers, and other property belonging to said office, which was refused. It is also found that, after June 3, 1907, the relator, being unmarried and without a family, left the state of Indiana and went to the Southwest, with the intention of permanently leaving the state of Indiana, and did thereby lose his citizenship in Floyd county, and became a nonresident of the state until his return on July 8, 1907. It is further found “that there was no vacancy in said office on the 3d day of July, 1907, nor at any time, before or since. That on the 3d day of July, 1907, said five trustees assembled at 10 o'clock a. m. at the auditor's office of Floyd county, for the purpose of electing a county superintendent of schools to fill said alleged vacancy; that the evidence does not show the result of said pretended election.”

The court stated its conclusions of law upon the foregoing facts as follows: (1) There was no valid election of county superintendent of schools of Floyd county, Ind., on the first Monday of June, 1907. (2) There was no vacancy in said office at the time the auditor of said county notified said trustees to assemble on the 3d day of July, 1907, and said notice was not authorized by law. (3) There was no vacancy in said office on the 3d day of July, 1907, and said trustees had no authority to meet on said day to elect a county superintendent of schools for said Floyd county, and all the acts of said trustees at said meeting were without authority of law. (4) That the relator was not, on the 3d day of July, 1907, eligible to hold the office of county superintendent of schools for said Floyd county, by reason of the fact that he was then a nonresident of the state of Indiana. (5) That the defendant, Levi H. Scott, was on the first Monday of June, 1907, and has ever since been, the duly elected, qualified, and acting county superintendent of schools for Floyd county, Ind. (6) That the relator, Roy L. White, is not entitled to said office, and that he recover nothing by reason of the action. (7) That the defendant recover of the relator his costs herein laid out and expended.”

There was a separate exception to each of the conclusions of law. That the action has been well brought to test the title to the office of county superintendent, is not called in question.

A demurrer to the information for insufficiency of facts was overruled, but no complaintof the ruling is made in the court. It is, however, earnestly insisted that the complaint is double, and proceeds upon the theory that the relator was elected to the office of superintendent on the first Monday, to wit, on June 3, 1907, and not on July 3, 1907. We concede the rule contended for by appellee that, if the plaintiff states his cause of action, upon two distinct theories, in the same paragraph of complaint, he can proceed only upon one, and must establish his right of recovery under the theory adopted, or fail in his action. Holderman v. Miller, 102 Ind. 356, 1 N. E. 719, and cases cited; 21 Enc. of P. & P. p. 650. But the theory upon which the case rests must be determined by the court from the general tenor and character of the pleading; that is, upon the theory that is most apparent and clearly outlined by the leading averments. Western Union v. Reed, 96 Ind. 195, 198;Jones, Treas., v. Cullen, 142 Ind. 335, 341, 40 N. E. 124; Railroad Co. v. State, 166 Ind. 219, 229, 76 N. E. 980, 117 Am. St. Rep. 370. The court states, among his findings, “that the relator has proceeded upon the theory that he was elected to said office on the first Monday of June, 1907.” But it not appearing from the general tenor of the information, or from the character of the evidence introduced in support of the complaint, that the parties acquiesced in that theory, we are not bound by it on appeal. 21 Enc. of P. & P. p. 664, and authorities collated. And we are not satisfied that the honorable trial court correctly apprehended the theory upon which the information was drawn and presented. It is averred that, at the election on the first Monday of June, one Williams, an ineligible person, received a majority of the votes cast, and while it is also alleged that the relator, having received a minority of the votes, was elected superintendent by reason of Williams' ineligibility, yet it clearly appears, from what is subsequently averred, that neither Williams nor the relator asserted any rights by virtue of said election, but in all respects treated it as nugatory. It is shown that the trustees again assembled on July 3d for the purpose of electing a county superintendent. The relator, with others, impliedly acknowledging thereby that he had not been previously elected to said office, submitted his name, was elected, so declared by the trustees, and in less than a week had filed his bond with the auditor, taken the oath of office, and entered upon the discharge of the duties of the office, except as prevented by the defendant- all of which, upon the trial, the relator offered to prove. Under the general scope of these averments, and the conduct of the relator at the trial, it is clear that he counted on the election of July 3d as giving him a right to the office, and not upon the abortive election of June 3d. Besides the facts found, and the conclusions of law as stated thereon, are inconsistent with the theory adopted by the trial court. If the relator relied upon the action of the trustees on June 3d for his election to the office, then all his subsequent averments, concerning the action of the trustees on July 3d, were mere surplusage, and a finding of the court upon such averments would be as futile as the averments themselves.

The first conclusion of law is that “there was no valid election of county superintendent on the first Monday of June, 1907.” If that was a fact, and the relator based his claim to the office on the validity of his election on that day, then he had no cause of action, and the case was properly at an end. But the court goes on and finds that, several days after June 3d, the relator left Floyd county for the Southwest, with the intention of permanently leaving the state of Indiana and becoming a nonresident (an unlikely performance, if the relator then understood, or was claiming, that he had been elected to an office he had so recently sought). The finding further proceeds that afterward, upon notice...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT