50 Ind. 562 | Ind. | 1875
At the December session, 1873, of the Board of Commissioners of Benton County, the board made the following order, viz.:
“Whereas there has been presented to the Board of Commissioners of the county of Benton, in the State of Indiana, at its present session, a written petition purporting to be signed by and to have attached thereto the signatures of twelve hundred and twenty-one (1221) of the legal voters of said county, requesting the relocating of the county seat of said county; and there have been presented to the said board of commissioners, and filed with said petition, the affidavits of sundry credible persons, stating that the signatures to said petition are genuine, and that the petitioners are legal voters of said county, which petition reads as follows, to wit(Here the petition is set out.) “Which petition is signed by Edward C. Sumner and twelve hundred and twenty others; and whereas the said petitioners have procured a conveyance to the Board of Commissioners of the county of Benton, in the State of Indiana, by deed, a good title to two lots of ground, one containing two
This action was brought by the appellants to enjoin the removal of the county seat, in accordance with the order of the board of commissioners above set out. The action was brought in Benton, but the venue was changed to Tippecanoe county.
An answer to the complaint was filed, to which the plaintiffs demurred, for want of sufficient facts, but the demurrer was overruled, and the plaintiffs excepted. The plaintiffs declining to reply, final judgment was rendered for the defendants.
The board of commissioners, at the time the order was made for a removal of the county seat, consisted of Joseph Perkins, John P. Boswell, and R. M. Atkinson. Atkinson was not present when the order was made, but the business was transacted by the other two, Perkins and Boswell. It is insisted that Boswell was not at the time a county commissioner, but that one Henry Robertson was the legal commissioner instead of Boswell, and that the order was made by one legal com-' missioner only, and was therefore a nullity.
The question whether Boswell or Robertson was the legal county commissioner grows out of the following facts: In 1840, the county was divided into three commissioners’ districts. This division continued until the March session of the
Old Districts.
New Districts.
At the time of the election of 1870, hereinafter mentioned, William Marvin was the commissioner for old district number 1, having been elected in 1866, and holding over because there was no election in 1869, in consequence of the act of that year providing for biennial elections. 3 Ind. Stat. 232. Robert M. Atkinson was the commissioner for old district number 3, having been elected in 1867. Thus it is seen that the terms of tüe successors of these two commissioners, elected in 1870, commenced on the first Monday of November, 1870. John
“ It is ordered, by the board, that Joseph Perkins be and is hereby appointed a county commissioner in and for the third district of .Benton county, to fill the vacancy occasioned by the resignation of John W. Swann.”
Perkins acted as commissioner under the appointment until the first Monday of November of that year, when he commenced acting as such under his election of 1870.
On the theory that Robertson’s term of office commenced, under the election of 1870, on the first Monday of November of that year, and would consequently expire on that day in the year 1873, the clerk issued the proper certificate, and the sheriff gave the proper notice, for an election of a commissioner for the second district, at the general election in the year 1872. Robertson and Boswell were both candidates, Robertson receiving six hundred and eighty-six votes, and Boswell seven hundred forty-four. Boswell was declared duly elected, received the proper certificate, qualified, and entered upon the duties of the office, and hence was the acting commissioner for district number 2, at the time the order was made for the removal of the county seat.
It is insisted by the appellants that Robertson was the successor of Swann, and that his term of office did not commence, under the election of 1870, until the first Monday of Novem
We do not see that Robertson can be said to have been the successor of Swann any more than he was the successor of Marvin or Atkinson. But, however this may be, the question does not, as we think, depend upon the order of succession. By the statute, the districts may be altered, but not oftener than every three years; and one commissioner must be elected from the residents of each district. 1 G. & H. 248, sec. 2. It has been held that a removal by a commissioner out of his district did not vacate his office. Smith v. The State, 24 Ind. 101. But it may be observed, incidentally, that a person, in order to be eligible, must be a resident of the district at the time of his election.
At the time of the election of 1870, new district number 2 was, in the fullest sense of the term, vacant. Neither of the old commissioners resided in it. If Atkinson or Marvin had resided in it, it would have made no difference, as their terms were about to expire.
Swann was not the commissioner for that district, for he resided in new district number 3, and if his functions as commissioner continued after the new districting (a point which wé do not decide, no question having been made in reference to it), he must have been the commissioner for the last named district. It was therefore competent at that election to elect a commissioner for new district number 2. This was done;
We are of opinion, therefore, that the objection thus raised is not well taken. This view renders it unnecessary for us to consider what would be the effect of official acts done by an officer defacto merely, for Boswell was, as we think, an officer dejure as well as defacto.
The other grounds upon which an injunction is sought are so fully covered by the case of The Board, etc., Clay Co. v. Markle, 46 Ind. 96, that we deem it unnecessary to extend this opinion by noticing them in detail. The learned and exhaustive opinion prepared by Judge Osborn in that case covers all the questions arising in this, except that in relation to the organization of the board, which has already been considered.
The judgment below is affirmed, with costs.