the State, ex rel. Dreibelbiss v. Berghoff

• Decision Date: 10 April 1902
• Docket Number: 19,667
• Citation: 63 N.E. 717,158 Ind. 349
• Parties: The State, ex rel. Dreibelbiss, v. Berghoff, Mayor of the City of Fort Wayne
• Court: Indiana Supreme Court

63 N.E. 717

158 Ind. 349

The State, ex rel. Dreibelbiss, v. Berghoff, Mayor of the City of Fort Wayne

No. 19,667

Supreme Court of Indiana

April 10, 1902

From Allen Circuit Court; E. O'Rourke, Judge.

Mandamus by State on the relation of Robert B. Dreibelbiss, against Henry C. Berghoff, mayor of the city of Ft. Wayne. From a judgment in favor of respondent, relator appeals.

Reversed.

R. S Taylor, J. B. Harper, W. Leonard, E. Leonard, W. J. Vesey, O N. Heaton and W. L. Taylor, Attorney-General, for appellant.

J. M Barrett, S. L. Morris, A. Zollars, C. H. Worden, F. E. Zollars, H. Colerick and W. H. Shambaugh, for appellee.

OPINION

Dowling, J.

The relator, claiming title to the office of municipal judge of the city of Fort Wayne, by the appointment of the Governor, tendered to the appellee, the mayor of said city, his official bond properly executed, with sufficient sureties, and demanded that such bond be approved. His demand was refused, and he sued out of the Allen Circuit Court a writ of mandamus requiring the appellee to approve the said bond, or show cause why he should not be compelled to do so. The appellee filed his return and answer to the verified application and alternative writ, and the appellant demurred thereto for want of sufficient facts to constitute a defense and excuse for such refusal to approve said bond. The demurrer was overruled, and, the appellant refusing to plead further, judgment was rendered against him. From that judgment he appeals, and the error assigned is the ruling upon the demurrer.

More particularly stated, the facts set forth in the application and alternative writ were these: On May 9, 1901, the relator was appointed and commissioned, by the Governor of this State, municipal judge of the municipal court of the city of Fort Wayne, Indiana, to fill a vacancy in said office beginning on said 9th day of May, 1901, and continuing until the first Tuesday of May, 1905, and until his successor should be elected and qualified; the relator took the oath of office, and presented to the appellee, who was the mayor of the city of Fort Wayne, his official bond, in the penalty prescribed by the statute, conditioned according to law, with good and sufficient sureties, duly acknowledged, and asked the appellee to approve the same; the relator possessed the statutory qualifications for such municipal judge, but the appellee, without legal excuse, refused to approve the said bond.

The return and answer admitted that the appellee was the mayor of the city of Fort Wayne, and alleged that on April 3, 1901, George W. Louttit was nominated as a candidate for the office of municipal judge of the municipal court of said city, by a convention of the democratic party, which party cast more than a majority of the total vote of said city at the last preceding election; that a certificate of his nomination was duly filed with the clerk of said city before the general election which was held on the first Tuesday of May, 1901; that the name of the said Louttit was printed upon the official ballot for said election; that said candidate was qualified for, and was eligible to the said office; that at said city election, he was elected to said office, receiving more than a majority of all the votes cast; that afterwards the said Louttit received a legal certificate of his election, and accepted said office, executed his bond with sufficient sureties, and took the oath of office; that said bond was approved by the appellee as such mayor; that thereupon Louttit entered into the possession of the said office, and proceeded to discharge its duties, and ever since has continued to do so; and that all of these things occurred before the presentation of the bond of the relator. The return and answer further aver that, at the time of the appointment of the relator, there was no vacancy in the office of municipal judge of the city of Fort Wayne. This last averment may perhaps be regarded as a conclusion from the facts previously stated in the return and answer.

The demurrer to this return presents the question of the validity and proper construction of the statutes creating the office of municipal judge of cities having a population of more than 35,000 and less than 49,000 inhabitants, according to the last census of the United States before the year 1901. Acts 1901, pp. 131 to 138.

Section 1 of the act of March 7, 1901, Acts 1901, p. 132, amending § 1 of an act to amend §§ 2, 11, 12, 67, and 77 of an act for the incorporation of cities having a population of more than 35,000 and less than 49,000 inhabitants, approved March 3, 1893, provides that the elective officers of such cities shall be a mayor, municipal judge, city clerk, and councilmen; that the general elections of such cities shall be held, as in said act provided, on the first Tuesday in May, 1901, and on the first Tuesday in May in every fourth year thereafter, at which general election there shall be elected a mayor, municipal judge and city clerk, all of whom, when so elected, shall hold their offices, respectively, for four years, and until their successors are elected and qualified; but that no municipal judge shall be elected until the general election to be held in May, 1905.

By another act approved March 7, 1901, § 42 of said act for the incorporation of cities having a population of more than 35,000 and less than 49,000, approved March 3, 1893, was so amended as to provide for the election of a mayor and city clerk in such cities on the first Tuesday in May, 1901, and on the first Tuesday in May in every fourth year thereafter, the terms of such officers to begin at 12 o'clock, noon, on Thursday next after their election, and to continue four years, or until their respective successors should be elected and qualified, except as in said act otherwise provided.

By the same act, § 45 of the said act of March 3, 1893, was amended so as to provide, among other things, that the mayors of such cities should continue to exercise their judicial authority until 12 o'clock noon on the 9th day of May, 1901, and until a municipal judge should be appointed and qualified under said act.

Section 46 of the act of March 3, 1893, was also amended by the said act of March 7, 1901, so as to read as follows: "Section 46. On and after 12 o'clock noon of the 9th day of May, 1901, the judicial power of such city shall be vested in a city court; the officers thereof shall be one judge, a clerk and a bailiff. The style of such court shall be 'The Municipal Court of the City of -----', according to the name of such city. * * * The mayors' courts of such cities are hereby abolished on and after said 9th day of May, 1901, and such mayors shall turn over to the judges of such courts, all books, papers, dockets, documents and property relating and belonging to such mayors' courts. * * * The municipal judge, as hereinbefore provided, shall be elected on the first Tuesday of May, 1905 A. D., and on the first Tuesday in May, in every fourth year thereafter, and shall serve for a term of four years. The office of municipal judge, shall, however, from said 9th day of May, 1901, until the first Tuesday in May, 1905 A. D., be filled by appointment by the Governor of Indiana, whose duty it becomes, on, or immediately after, the 9th day of May, 1901, to select some attorney at law, of good standing, who shall have been a resident in such city for three years next previous to his selection, to serve as municipal judge until such day of election. The term of said judge shall begin immediately upon his appointment, and he shall serve until his successor is elected and qualified. He shall execute a bond, payable to the State of Indiana, in the penal sum of $ 2,000, with good and sufficient surety, to be approved by the mayor, and filed in the office of the city comptroller, conditioned for the faithful and honest discharge of the duties of his office." Both of these amendatory acts contained emergency clauses, and were approved on the same day. The act amending §§ 42 and 46 of the act of 1893 appears later in the printed acts of 1901, than the act amending § 1 of the act of 1893.

These acts created the office of municipal judge in the class of cities to which the city of Fort Wayne belongs. They declared that the office should not come into existence until May 9, 1901, at 12 o'clock noon. All the civil and criminal jurisdiction previously possessed by the mayor under the act of March 3, 1893, was continued in that officer until that time. The general elections for city officers, were required to be held on the first Tuesday of May, 1901, and on the first Tuesday of May in every fourth year thereafter. As the office of municipal judge did not come into being until two days after the general city election held on the first Tuesday of May, 1901, and as the next general city election could not be held until the first Tuesday in May, 1905, a vacancy in the office of municipal judge occurred on May 9, 1901, which the Governor was expressly authorized by the act to fill by appointment. He exercised that power, and the relator, who was appointed by him to fill the vacancy, had the right to demand of the appellee, as the mayor of the city of Fort Wayne, the approval of his official bond, unless the provisions of the acts, under review, were invalid, because of repugnancy between the proviso in § 1 as amended and the body of the act, or were in conflict with the Constitution of the State.

Counsel for appellee contend that a repugnancy does exist between the proviso of the act of March 7, 1901 (Acts 1901, p. 132), and the body of that act, and that the body of the act, amending § 1, must control; they also insist that the acts of March 7, 1901, are in conflict with the Constitution of the...