188 Ind. 364 | Ind. | 1919
— -On July 7, 1917, appellee brought this suit against appellants, Felker and his deputies, and thereafter such steps were taken and proceedings had that'a temporary injunction was granted enjoining the appellants and all other persons assuming to act as deputies, or otherwise, from in any manner interfering with appellee as state supervisor of oil inspection, or his deputies in the discharge of their duties, “until such time as it shall first be established by the adjudication of a competent tribunal that said Adam H. Felker had a superior title to the said office of State Supervisor of Oil Inspection, or until the further order of this court.” It further appears that appellee on June 22, 1917, was appointed by the Governor of the State of Indiana, state supervisor of oil inspection under the provision of an act of the general assembly approved
The errors here assigned on the rulings of the trial court challenge the legality of the order of the trial court granting a temporary injunction.
Appellants insist that a- court of equity is without jurisdiction to grant injunctive relief in a case where it clearly appears that the real controversy involves the title to a public office. Appellee takes the position that by virtue of his appointment and commission he was a de facto officer acting under color of authority, and as such officer he was entitled to have the status quo preserved as against an adverse claimant who was interfering with him in the performance of the duties of such office, until such time as the title thereto could be determined in a proper proceeding- for that purpose.
In this state public offices are either constitutional or legislative. In this case the office in question is not a constitutional one; consequently it must be one created by the legislature or none exists. However, the power of the legislature to create it is not questioned, nor is there any constitutional objection urged.
time the act of 1901, supra, was on our statute books, and presumably a valid law. State, ex rel. v. Billheimer (1912), 178 Ind. 83, 96 N. E. 801; Hanly v. Sims (1910), 175 Ind. 345, 93 N. E. 228, 94 N. E. 401; Cincinnati, etc., R. Co. v. McCullom (1915), 183 Ind. 556, 109 N. E. 206, Ann. Cas. 1917E 1165. At least, if it was unconstitutional or invalid for any reason, it was not so judicially declared.
In 1881 (Acts 1881 p. 571), a general law on the subject of inspection of oils was enacted, and the Governor was thereby authorized to appoint for the term of two years a suitable person with certain specific qualifications to perform the duties required by that act. ' In 1891 (Acts 1891 p. 29), the general assembly expressly created the office of state supervisor of oil inspection, prescribed the duties thereof, fixed the compensation of such officer, and abolished the office known by the act of 1881 as state inspector of oils, and gave the appointive power to the state geologist, who was authorized to fill the office by appointment for a term ■of four years. This enactment was challenged and held ■valid by this court in the case of State, ex rel. v. Hyde (1891), 129 Ind. 296, 28 N. E. 186, 13 L. R. A. 79.
The 1901 act, supra, was entitled “An Act regulating the inspection of oils and other petroleum products, providing penalties for its violation and repealing all former laws, and laws in conflict therewith.” This act, as its title indicates, has reference to the manner of inspecting oils and other petroleum products only. It has no provision expressly creating an office, but provides that such inspection as therein designated shall be made by the state supervisor of oil inspection, an office theretofore created by positive legislative action, and at that time' being administered by an incumbent who, so far as it appears from this act, was to continue in office until January 1, 1903, when by the provisions of this act the Governor was to appoint his successor and every four years thereafter. Under this act, the duties of the state supervisor of oil inspection were not materially different from those required of this officer under the act of 1881, except that his duties were extended to include the inspection of gasoline, petroleum-ether, or similar or like substances under whatever name called.
In Carleton v. People (1862), 10 Mich. 249, it is said: “All that is required when there is an office, to make an officer de facto, is, that the individual claiming the office is in possession of it, performing its duties, and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary his election or appointment should be valid, for that would make him an officer de jure.” In the case of Erwin v. Jersey City (1897), 6 N. J. Law 141, 144, 37 Atl. 732, 733, 64 Am. St. 584, it is said: “When an official person or body has apparent authority to appoint to public office, and apparently exercises such authority, and the person so appointed enters upon and performs the duties of such office, his acts will be held valid in respect to the public, whom he represents, and to third persons, with whom he deals officially, notwithstanding there was a want of power to appoint him in the person or body which professed to do so.” See, also, Ex Parte Parks (1880), 3 Mont. 426, 428, 430; Buck v. Hawley (1906), 129 Iowa 406, 408, 105 N. W. 688.
Since the submission of this cause, the act of 1901 has been held invalid by this court in the case of Caldwell v. State, ex rel. (1918), 187 Ind. 617, 119 N. E. 999. That case was a proceeding in quo warranto to try the title to the office of state supervisor of oil inspection, wherein it was held that the act of 1881 is in force except as amended and modified by the act of 1891.
The question involved in this latter case was clearly for the law side of the court. When the question thus
Our attention has been called to the case of Norton v. Shelby County (1885), 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178, as authority for the proposition that there cannot “be a de facto office, under a constitutional government.” In our view of the instant case, the question suggested is unimportant in the decision of this case, and we therefore express no opinion on it. However, in the case of State v. Pooler (1909), 105 Me. 224, 74 Atl. 119, 24 L. R. A. (N. S.) 408, 134 Am. St. 543, the question of whether or not there may be a de facto officer without a de jure office is thoroughly considered, as also the case of State v. Carroll (1871), 38 Conn. 449, 9 Am. Rep. 409, and the Norton case, the two leading cases often referred to in the. books as sustaining the doctrine appellants would have this court announce. Each of these cases is analyzed, and the conclusion is reached that there can be no reasonable doubt that there may exist a de facto office as well as a de facto officer. See, also, Lang v. Bayonne (1906), 74 N. J. Law 455, 68 Atl. 90, 122 Am. St. 391, 12 Ann. Cas. 961, and note to same case, 15 L. R. A. (N. S.) 93; State, ex rel. v. Bailey (1908), 106 Minn. 138, 118 N. W. 676, 19 L. R. A. (N. S.) 775, 130 Am. St. 592, 16 Ann. Cas. 338. Judgment affirmed.
Note. — Reported in 123 N. E. 794. Officers: public, election or appointment under unconstitutional statute, as de facto officer, Ann. Cas. 1915C 498; who are de facto officers, 19 Am. Dec. 63, 29 Cyc 1391. See under (1) 29 Cyc 1418; (6) 29 Cyc 1416.