Wagner v. State ex rel. Walker

• Decision Date: 11 March 1910
• Docket Number: No. 21,416.,21,416.
• Parties: WAGNER v. STATE ex rel. WALKER.
• Court: Indiana Supreme Court

173 Ind. 603

91 N.E. 1

WAGNER

v.STATE ex rel. WALKER.

No. 21,416.

Supreme Court of Indiana.

March 11, 1910.

Appeal from Circuit Court, Decatur County; Marshall Hacker, Judge.

Information, in the nature of quo warranto, on the relation of Harry H. Walker, against William H. Wagner. From an adverse judgment, defendant appeals. Affirmed.

Carter & Morrison, for appellant. J. F. Walker, U. E. Tindall, and Hord & Adams, for appellee.

MYERS, J.

This cause is here a second time on appeal. State ex rel. Walker v. Wagner (1907) 170 Ind. 144, 82 N. E. 466. Upon the return of the cause to the Shelby circuit court, appellee filed an answer in general denial, also an answer “that at the time it is alleged that the relator was elected councilman for the Fourth ward of the city of Shelbyville, Indiana, to wit, on the 18th day of February, 1907, the members of the council of said city at said time did not vote by ayes and noes.” There was a reply in general denial, a trial, finding, and judgment for relator. Appellee claims an appointment to the office of councilman by the action of the common council on February 18, 1907, as successor to one Wilson, resigned. The petition for a rehearing in the former case was overruled February 28, 1908. The original resolution for the election of relator as entered upon the council record show the aye and nay vote to have been taken and entered of record and the record signed by the mayor, and attested by the clerk on February 18, 1907. On March 16, 1908, one of the councilmen reciting by written motion that the minutes of February 18, 1907, erroneously show that the aye and nay vote was taken on the motion when in truth and in fact the aye and nay vote was not taken, moved that the record be corrected by striking from that portion of the minutes which refers to the vote the words “by the following vote, ayes, Rinehart, Comstock, Thompson, 3; Nays, Showers, Bass, 2,” leaving the record to read “The resolution was passed.” On this motion two members voted aye and two nay. Appellant was present, but was excused from voting. The vote was a tie, and the mayor voted aye, and declared the motion to correct the record adopted. When the offer of this evidence was made, appellee objected to its introduction upon the ground that it is no defense that the yea and nay vote was not taken, and that the offered evidence was immaterial, and for the reason that the statute did not require a yea and nay vote to be taken upon the appointment of a councilman to fill a vacancy, and that relator having been appointed at a special meeting called for the purpose as required by the statute, and having performed the duties, and adjourned, it was not within the power of the council at a subsequent meeting to correct the record of the special meeting. The motion does not attempt to change the record so as to show that appellee was not in fact appointed, but only that the yea and nay vote was not taken. The evidence was admitted, but the cause determined against appellant, and this appeal is based upon the theory that as the amended record shows that the resolution for the appointment of appellee was in writing, and that no aye and nay vote was taken, it is shown that appellee was not appointed, as the statute requires. The error assigned is upon the motion and causes for a new trial in which it is assigned that the decision is contrary to law, and not sustained by sufficient evidence. Appellant's claim is that as the resolution for the appointment was in writing, and as the clerk is required to “enter the ayes and nays on the passage of every ordinance and resolution,” it necessarily follows “that in passing every ordinance or resolution the council must vote by ayes and nays.” It is conceded by appellant that, if it was not necessary that the yea and nay vote should have been taken on the adoption of the resolution by which it was sought to elect appellee, the judgment should be affirmed. The sole question determined on the former appeal was as to the veto power of the mayor; the proposition being then urged by appellant here was that, as the method of appointment was by resolution, that method invoked the veto power of the mayor. It was held adversely to appellant on the ground that the election might have been by motion, and viva voce vote, or by ballot, and that the veto power only extends to such acts of the common council as usually take the form of resolution or ordinance with respect to acts which have the force of laws. The question arose upon demurrer to a complaint alleging generally the adoption of a resolution by a majority of the members appointing appellee to the office.

The question for determination here arises first upon the question of the power of the common council after the expiration of over one year after the record of a special meeting showing a resolution adopted by an aye and nay vote, and so recorded on the record, signed by the mayor, and attested by the clerk, and whether the record can be corrected by another vote which was a tie, and decided by the vote of the mayor, so as to correct the record and leave it standing to read, “The resolution was passed.” It is not an open question that the record of a common council may be corrected to speak the truth. Everett v. Deal (1896) 148 Ind. 92, 47 N. E. 219;City of New Albany v. Endres (1896) 143 Ind. 192, 42 N. E. 683;City of Logansport v. Crockett, 64 Ind. 319. What the effect may be upon the rights of others acquired upon the faith of a record before changed need not be considered, for the right to a public office is not a property right, though it is a substantial right recognized by law, but so far as the right itself is concerned it depends upon the fact whether one has or has not been elected or appointed to it in the manner required by the law, and that is the question here presented.

The claim of appellant is made under section...