Vogel v. State ex rel. Land
| Decision Date | 14 September 1886 |
| Docket Number | 13,199 |
| Citation | 8 N.E. 164,107 Ind. 374 |
| Parties | Vogel v. The State, ex rel. Land, Prosecuting Attorney |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Nov. 17, 1886.
From the Perry Circuit Court.
Judgment reversed, and cause remanded, with instructions to grant appellant's motion for a new trial, and to proceed in accordance with this opinion.
W Henning and E. C. Vance, for appellant.
W. A Land, Prosecuting Attorney, and C. H. Mason, for the State.
The prosecuting attorney, by an information in the name of the State, challenges the right of appellant to hold the office of township trustee in and for Troy township, in Perry county.
The sufficiency of the information is questioned by a general statement in appellant's brief, but as no specific objection is pointed out, and we discover none, we pass to a consideration of the alleged error of the court below in sustaining a demurrer to appellant's plea in abatement. It is alleged in the information that appellant had intruded himself into the office of township trustee and excluded therefrom the properly elected and qualified trustee, one Nicholas Marks.
In answer to this charge, appellant pleaded by way of abatement, that he had been elected trustee of the township in 1884; that at the April election, in 1886, he and Marks were rival candidates; that, although Marks received the highest number of votes, he was not, and could not be, elected, because he was ineligible to the office by reason of being a justice of the peace; that appellant, in the statutory mode, contested Marks' right to the office; that the board of commissioners decided that neither party was eligible; that both took an appeal to the circuit court, and that the case was pending in that court when the information and plea were filed in this case.
The court below properly sustained the demurrer to this plea. The result of the contest, if prosecuted to final judgment, might be the same to the contestants, as the result to be attained by this prosecution, but the parties to the two actions are not the same. In the contest, appellant and Marks are contesting the right to the office as between themselves; here, the State is the moving party, and is not interested in the success of either of the rival claimants, except so far as one or the other may be eligible and the lawfully elected trustee.
The rights of the State in a matter of this kind are above the rights of individual claimants, and its rights will not be affected by any proceeding that such parties may institute as between themselves. If it were otherwise, the State might be rendered powerless to eject from office an intruder placed in it by a collusive litigation.
The controlling facts upon which the case was submitted below are as follows: In 1882, Nicholas Marks, having been elected a justice of the peace in and for Troy township, Perry county, was, by the Governor's commission, dated the 17th day of April, 1882, "commissioned as such justice of the peace for the term of four years from the 17th day of April, 1882." He accepted the office, and on the 28th day of April, 1882, qualified, and acted as such justice thereafter. In 1884, appellant was elected and qualified as trustee of the township. At the township election, on the 5th day of April, 1886, appellant and Marks were rival candidates for the office of trustee of the township. Appellant received 455 and Marks 537 votes. The inspectors of the election issued to Marks a certificate of election on the 6th day of April. On the 17th day of that month he filed his bond, qualified and demanded from appellant the books, papers, etc., belonging to the office. On the 12th day of the same month, appellant took the oath of office, and filed a bond, which was not approved by the auditor because of the certificate of election being held by Marks. Claiming that Marks was ineligible to the office of trustee by reason of being a justice of the peace, appellant refused to surrender the office to him.
The Constitution provides that no person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office of trust or profit under the State, other than a judicial office. R. S. 1881, section 176. That the office of justice of the peace is a judicial office under our Constitution and statutes, is well settled.
It was held in the case of Smith v. Moore, 90 Ind. 294, that a judicial officer may be elected to an office not judicial, the term of which will begin after the expiration of the judicial term; in other words, that the disability imposed by the Constitution has reference to the taking and holding of the office, and not to the election. That case has been followed and approved in subsequent cases.
Marks was eligible to take and hold the office of township trustee, if the term began after the expiration of his term as justice of the peace, although such term may not have expired at the time of the election.
The two material and controlling inquiries are, when did Marks' term as justice of the peace expire, and when did the term of township trustee begin? The record shows nothing as to the beginning of Marks' term as justice of the peace, except what is shown by his commission from the Governor. That commission, as we have seen, fixed his term at four years from the 17th day of April, 1882. If the 17th day of April was a part of the term, the term ended at midnight of the 16th day of April, 1886. If the 17th is to be excluded, the term ended at midnight of the 17th day of April, 1886. Wells v. Wells, 6 Ind. 447.
The general rule may be said to be, that when time is to be computed from a day upon which an act is done, that day will be excluded. Hathaway v. Hathaway, 2 Ind. 513; Swift v. Tousey, 5 Ind. 196; Womack v. McAhren, 9 Ind. 6; Martin v. Reed, 9 Ind. 180; Blair v. Davis, 9 Ind. 236. See, also, Hill v. Pressley, 96 Ind. 447; Benson v. Adams, 69 Ind. 353 (35 Am. R. 220); Best v. Polk, 18 Wall. 112, 21 L.Ed. 805.
There is a section of the code which provides that "the time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last." R. S. 1881, section 1280. Faure v. United States Ex. Co., 23 Ind. 48; Noble v. Murphy, 27 Ind. 502; State, ex rel., v. Thorn, 28 Ind. 306; Byers v. Hickman, 36 Ind. 359.
The above section of the statute evidently has reference to matters properly falling within the code of civil procedure and not to matters in no way connected therewith, although some of the cases seem to give it a broader application. See Towell v. Hollweg, 81 Ind. 154.
It must be apparent that the above section of the code has no application to the office of justice of the peace. Neither the office, nor anything relating to it, is provided for in the code. The circumstances and reason of particular cases may be such as to require that they shall not be governed by the general rule as above stated. The terms of a contract may be such as to require a departure from that rule in the computation of time. Cook v. Gray, 6 Ind. 335; Brown v. Buzan, 24 Ind. 194; Newby v. Rogers, 40 Ind. 9.
In the case last above, it was held that where property is contracted to be delivered from the 15th to the 28th of a specified month, both the 15th and 28th are to be excluded. See, also, Fox v. Allensville, etc., T. P Co., 46 Ind. 31, where it was held that in giving notice thirty days previous to the time when payments were to be made on gravel road assessments, the first day of publication should be counted. See, also, Hill v. Pressley, 96 Ind. 447, where a like ruling was made in relation to a...
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