Wells v. State ex rel. Peden

• Decision Date: 16 March 1911
• Docket Number: No. 21,648.,21,648.
• Citation: 175 Ind. 380,94 N.E. 321
• Parties: WELLS v. STATE ex rel. PEDEN.
• Court: Indiana Supreme Court

175 Ind. 380

94 N.E. 321

WELLS

v.STATE ex rel. PEDEN.

No. 21,648.

Supreme Court of Indiana.

March 16, 1911.

Appeal from Circuit Court, Owen County; George W. Grubbs, Judge.

Action by the state, on the relation of Jesse P. Peden, against John A. Wells. From a judgment for relator, defendant appeals. Affirmed.

John C. Robinson and Inman H. Fowler, for appellant. Homer Elliott, for appellee.

MYERS, C. J.

This was an action by relator in the court below to oust appellant from the office of trustee of the school town of Spencer. The complaint avers the fact of the election of appellant as trustee of the school town of Spencer in June, 1907, and his qualification and entry upon the duties of the office August 1, 1907, for a term of three years; that on January 1, 1908, appellant was qualified to hold the office of deputy auditor of Owen county, on which day he was appointed by the auditor to the office of deputy auditor, and took and subscribed the oath of office as such deputy, and entered upon and has continued in the discharge of the duties of the office of deputy auditor; that his compensation as school trustee was $60 per annum, and his salary as deputy auditor was $660 per annum, both of which salaries he continued to draw and also to discharge the duties of both offices; that relator was, on May 1, 1909, elected to fill the unexpired term which was vacated by appellant, by his acceptance of the office of deputy auditor; that relator qualified and proposed to enter upon the duties of the office and demanded the books, papers, and supplies incident to and connected with the office from appellant, which was refused, and appellant has continued wrongfully in said office. Prayer that the right of relator to the office be determined, and that he be authorized to exercise the functions of the office without let or hindranceof appellant, and that the latter be enjoined from exercising or attempting to exercise any right or rights in connection with said office, and for $100 damages. A demurrer for want of facts was ineffectually interposed to the complaint, and refusing to plead further the court heard the evidence, and assessed damages against appellant for $40 and costs, and adjudged that the relator was entitled to the possession of the office, and appellee was enjoined from exercising, or attempting to exercise, any of the duties of the office.

The errors assigned challenge the sufficiency of the complaint upon the ground, first, that the position of deputy county auditor is not an office, and, second, that there must first have been a judicial declaration of a vacancy in the office of school trustee before an action for ouster will lie. Appellee's position is that the two offices are lucrative, and Const. art. 2, § 9, Burns' 1908, § 90, forbids one person holding two lucrative offices, and, second, that the two offices were incompatible at common law, and the acceptance of one amounted to a vacation of the other.

As to the second proposition of appellant, the statute, Burns' 1908, § 1188, provides for a civil information “where any person shall usurp, intrude into, or unlawfully hold or exercise any public office or any franchise within this state; *** whenever any public officer shall have done or suffered any act which, by the provisions of law, shall work a forfeiture of his office.” The information may be filed by any person when he claims an interest in the office (section 1189), and the judgment, if for the relator, shall be that “he shall proceed to exercise the functions of the office, *** and the court shall order the defendant to deliver over all the books and papers in his custody or within his power, belonging to the office from which he shall have been ousted.” Burns' 1908, section 1194. Under these provisions of our statutes, it has been held that the information is the proper remedy to try the title and determine the right to an office, and to oust an intruder for ineligibility, abandonment, or forfeiture. Jones v. State, 153 Ind. 440, 55 N. E. 229;State v. Crowe, 150 Ind. 455, 50 N. E. 471;Bishop v. State, 149 Ind. 223, 48 N. E. 1038, 39 L. R. A. 278, 63 Am. St. Rep. 270;Relender v. State, 149 Ind. 283, 49 N. E. 30;Chambers v. State, 127 Ind. 365, 26 N. E. 893, 11 L. R. A. 613;Griebel v. State, 111 Ind. 369, 12 N. E. 700;State v. Gallagher, 81 Ind. 558;State v. Peterson, 74 Ind. 174;State v. Adams, 65 Ind. 393;Yonkey v. State, 27 Ind. 236;Gass v. State, 34 Ind. 425; Throop, Public Officers, §§ 82, 776, 777, 781, 786, 802. Our statute goes farther than the common law under which books and papers pertaining to an office were recoverable in replevin or mandamus (Throop, §§ 789-792), by providing that the judgment shall require the surrender of books or papers in a defendant's custody, or within his power, belonging to an office from which he shall have been ousted. Upon the second branch of appellant's contention we believe him to be in error. The office of school trustee has been held to be a lucrative office. Chambers v. State, supra; Creighton v. Piper, 14 Ind. 182. In Howard v. Shoemaker, 35 Ind. 111, the office of mayor of a city is held to be a lucrative office. The reasons pointed out in those cases are that these officers are charged with duties delegated to them under the state government, with duties imposed upon them by statute, and are subject to legislative control. McCoy v. Curtice, 9 Wend. (N. Y.) 17, 24 Am. Dec. 113;Ogden v. Raymond, 22 Conn. 379, 58 Am. Dec. 429;People v. Bennett, 54 Barb. (N. Y.) 480.

It is claimed by appellant that a deputy county auditor is not a public officer. The insistence of appellant is that he is only a clerk, or employé; but he is more. It is said in Indianapolis, etc., Co. v. Claypool et al., 149 Ind. 193, 48 N. E. 228: “An office is a position or station in which a person is employed to perform certain duties, or by virtue of which he becomes charged with the performance of certain duties, public or private; a place of trust.” It is said in that case that whether there is a provision for compensation does not determine the question whether the office is public. It is said by Webster that an office is “a special duty, trust, or charge conferred by authority and for a public purpose; an employment undertaken by the commission and authority of the government, as civil, judicial, executive, legislative, and other offices.” A public charge, or employment, in which the duties are continuing and prescribed by law, and not by contract, invested with some of the functions pertinent to sovereignty, or having some of the powers and duties which inhere within the legislative, judicial, or executive departments of the government, and emolument is a usual, but not a necessary, element of an office. Foltz v. Kerlin, 105 Ind....