State ex rel. White v. Scott

• Decision Date: 09 December 1908
• Docket Number: 21,298
• Citation: 86 N.E. 409,171 Ind. 349
• Parties: The State of Indiana, ex rel. White, v. Scott
• Court: Indiana Supreme Court

86 N.E. 409

171 Ind. 349

The State of Indiana, ex rel. White, v. Scott

No. 21,298

Supreme Court of Indiana

December 9, 1908

From Clark Circuit Court; Harry C. Montgomery, Judge.

Quo warranto by the State of Indiana, on the relation of Roy L White, against Levi H. Scott. From a judgment for defendant plaintiff appeals.

Reversed.

George H. Hester and Alexander Dowling, for appellant.

Charles W. Smith, George H. Voight and Walter V. Bulleit, for appellee.

OPINION

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 June 3, 1907, he was duly elected to the office of superintendent of the schools of Floyd county; that the defendant was his predecessor in said office, and that his term of office expired, by limitation, on said June 3; 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 R. 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, by a unanimous vote, elected the relator county superintendent; 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 findings that the defendant, on the first Monday of June, 1903, was elected and he qualified as county superintendent for the term of four years, and until his successor should be elected and qualified. Floyd county is divided into five townships, and on the first Monday in 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 voted 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 to be eligible, but he did not qualify, or make any claim to the office. On June 18, the auditor notified the five trustees to meet at his office on July 3, 1907, to elect a superintend ent. 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 from the defendant the possession of the books, papers and other property belonging to said office, which was refused. After June 3, 1907, the relator, being 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 become 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 July 3, 1907, nor at any time before nor since; that on July 3, 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, Indiana, 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 July 3, 1907, and said notice was not authorized by law. (3) There was no vacancy in said office on July 3, 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) The relator was not, on July 3, 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) 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, Indiana. (6) The relator, Roy L. White, is not entitled to said office, and should recover nothing by reason of the action. (7) The defendant should 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 complaint of the ruling is made in this 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 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 (1885), 102 Ind. 356, 1 N.E. 719, and cases cited; 21 Ency. Pl. and Pr., 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 Tel. Co. v. Reed (1884), 96 Ind. 195, 198; Jones v. Cullen (1895), 142 Ind. 335, 341, 40 N.E. 124; Vandalia R. Co. v. State, ex rel. (1906), 166 Ind. 219, 76 N.E. 980, 117 Am. St. 370.

The judge 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, as it does not appear 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 Ency. Pl. and Pr., 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, Melbert R. 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's 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 3, 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 3 as giving him a right to the office, and not upon the abortive election of June 3. 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 3 for his election to the office, then all his subsequent averments, concerning the action of the trustees on July 3, 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 were 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 3, 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...