Brown v. Goben
23 N.E. 519
Ind.
1890
Check Treatment
Elliott, J.

Thе appellant and the appellee were competitors for the office of auditor of Montgomery county at the general election held in November, 1886, and the latter recеived a majority of all the votes cast at that election. On the 13th day of the month in which the election was held, the appellant filed his petition asserting his claim to the office, and averring that hе was eligible and that his competitor was not. The ground ‍‌​​‌​​‌​‌‌‌‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​‌‌‌‌‌​‍upon which the eligibility of the appellee is denied is, that he had previously hеld the office and was a defaulter, in that he had wrongfully convertеd to his own use funds of the county to the amount of $6,311.07, which he failed and rеfused to pay over as the law requires. The court below sustainеd a motion to dismiss the proceeding, and upon this ruling the only question for our consideration is presented.

*114The appellee’s рosition is, that the petition was prematurely filed for the reasоn that it was filed before the time for the appellee’s induction into office, a,nd that his ineligibility ‍‌​​‌​​‌​‌‌‌‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​‌‌‌‌‌​‍at the time of his election is immateriаl, inasmuch as the ineligibility that prevents his entering the office must exist at thе time fixed for his term to begin.

The case of Smith v. Moore, 90 Ind. 294, supports the appellee, for it is thеre decided that the cause which disqualifies must, exist at the time the claimant’s term begins, and that his right is not affected by the fact that at the time of his election he was ineligible. The writer, at the time the decision referred to was rendered, dissented ‍‌​​‌​​‌​‌‌‌‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​‌‌‌‌‌​‍and gave his reasons for his dissеnt, and further investigation has strengthened him in his conviction that the decisiоn is erroneous. But it is better that the decision be adhered to (especially as it has been tacitly approved) than that uncertainty or confusion should be produced by overthrowing it. City of Indianapolis v. Huegele, 115 Ind. 581; Vogel v. Slate, ex rel., 107 Ind. 374. We conсlude, therefore, that it must be held to be the settled law of this State thаt the disqualification must exist at the time the term of office ‍‌​​‌​​‌​‌‌‌‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​‌‌‌‌‌​‍begins, and thаt the right of the claimant is not affected by the fact that at the timе of his election .he was ineligible. The decision in Smith v. Moore, supra, goes much beyоnd what we need do in this instance. The constitutional provision herе involved may, with much less ‍‌​​‌​​‌​‌‌‌‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​​‌​​​‌​‌‌‌‌‌​‍difficulty, be held to apply to the time of induction into office than can that which received construction in Smith v. Moore, supra. That provision reads thus : “ Nо person who may hereafter be a collector or holder of public moneys shall be eligible to any office of trust or profit until he shall have accounted for and paid over, aсcording to law, all sums for which he may be liable.” Article II, section 10.

It is true, as counsel suggest, that the constitutional provision produces singular and anomalous results, but we must give effect to it as it is written, for constitutions can not be changed in the slightest degree by the courts; on the con*115trary, their languаge must be regarded as mandatory, and every word must be given effect. It is also true that the statute which provides that petitions in contеsted election cases shall be filed within ten days after the elеction can not be given effect in such a case as this, but that dоes not authorize the courts to disregard the provisions of the рaramount law. Counsel are in error in assuming that.where the persоn who receives the highest number of votes is a defaulter, he can not be evicted from office. There is a remedy for such cases, not by a statutory contest, but by an information in the nature of a quo warranto. Jones v. State, ex rel., 112 Ind. 193; Griebel v. State, ex rel., 111 Ind. 369; Vogel v. State, ex rel., supra ; State, ex rel., v. Long, 91 Ind. 351; State, ex rel., v. Bieler, 87 Ind. 320.

Filed Feb. 8, 1890.

Judgment affirmed.