130 Ind. 120 | Ind. | 1892
The appellee, William H. Tow, was duly elected trustee of Marion township, Lawrence county, at the regular township eléction in the year 1888, duly qualified and entered upon the discharge of his duties as such, and is yet in the possession of the office, claiming title thereto.
At the April election in the year 1890, James H. Brown and Henry Murray were opposing candidates for the office of township trustee in Marion township, and after the votes had all been cast and the polls closed, and while the election
Each of the parties to this suit claims to be the legal trustee of Marion township, the appellant basing his claim upon the election held in November, 1890, and his subsequent appointment by the board of commissioners of Lawrence county, while the appellee bases, his claim upon the alleged fact that his successor has never been elected and qualified, and that he has the right to such office until that event takes place.
Section 3, article 15, supra, provides that “ Whenever it is provided in this constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean that such officer shall hold his office for such term, and until his successor shall have been elected and qualified.”
Section 5527, supra, provides “ If any officer of whom an official bond is required shall fail, within ten days after the commencement of his term of office and receipt of his commission or certificate, to give bond in the manner prescribed by law, the office shall be vacant.”
It is contended by the appellant: First. That the word “ election,” as used in the Constitution and statutes, is not used in its restricted sense, as meaning only an election by the people, but it should be construed as signifying chosen, or designated, and, when so construed, the appellant is entitled to the office in question by reason of his appointment by the board of commissioners of Lawrence county.
Second. That Brow.n was duly elected township trustee of Marion township, at the April election in the year 1890, and having failed to give bond and qualify within ten 'days after his term of office began, the office, under the provisions of section 5527, supra, became vacant, and the board of commissioners had the legal right to fill such vacancy by appointment.
No authority is cited by the appellant which supports his -first position, and we have no knowledge of any such authority; while, on the contrary, the adjudicated cases seem to be harmonious in holding that where one is lawfully in the possession of an office, under a constitutional
In view of these authorities, we are not at liberty to adopt the construction contended for by the appellant in this ease.
We have no doubt that Brown was duly elected township trustee of Marion township.
When the last vote was cast, and the polls closed, the electors had made their choice, and the count could do nothing more than ascertain the result. The election officers had no power to elect any one after the polls were closed, their duty being confined to ascertaining the result of the ballotting, and furnishing the necessary evidence of such result. *
But does it follow that, because Brown was elected and failed to qualify, the office of township trustee became vacant, and the board of commissioners acquired the right to appoint?
The rule is that, where a person is in the possession of an office, under a constitutional or statutory provision'like that found in our Constitution, and a successor is duly elected, but dies before he qualifies, no vacancy occurs, since one of the contingencies upon which the incumbent’s term of office is to expire has not taken place, namely, the qualification of a successor. McCrary Elections, section 314; Commonwealth, ex rel., v. Hanley, 9 Barr (Pa.St.), 513.
Commonwealth, ex rel., v. Hanley, supra, is, in its facts, similar to the case before us.
In discussing the questions arising under these facts, the Supreme Court of Pennsylvania said : “ Being duly qualified in the constitutional sense, and in the ordinary acceptation of the words, unquestionably means that he, the successor, shall possess every qualification ; that he shall, in all respects, comply with every requisite before entering on the duties of the office'; that, in addition to being elected by the qualified electors, he shall be commissioned by the Governor, give bond as required by law, and that he shall be bound by oath or affirmation to support the constitution of the commonwealth, and to perform the duties of the office with fidelity. Until all these prerequisites are complied with by his successor * * * the respondent is de jure as well as de facto the clerk of the orphans’ court.”
So, too, this court held in the case of State, ex rel., v. Berg, 50 Ind. 496, that, where a township trustee was elected his own successor, and did not qualify under his second election, his office did not become vacant, and he was entitled to hold under his first election until a successor was elected and qualified.
The weight of authority is that where there exists a constitutional provision, such as we are now considering, a term of office fixed by statute runs not only for the period fixed, but for an additional period between the date fixed for its termination and the date at which a successor shall be qualified to take the office. The period between the expiration of the term fixed by statute and the time at which a sue-
It follows from what we have said that the appellee is entitled to the office in dispute, unless the appellant has been legally chosen and qualified as his successor. As we understand the brief of the appellant, it is not seriously contended that the election held in November, 1890, conferred any rights upon the appellant. As the election of a township trustee at that time was wholly unauthorized by law, such election was void, and conferred no right to the office.
Nor did the board of commissioners possess the legal authority to appoint the appellant to the office for the reason, as we have seen, that there was no vacancy, and, there being no vacancy, the appellee’s successor could be chosen only by the constituency which elected him.
As to the construction to be placed upon section 5527, supra, or as to what provisions of that section, if any, conflict with the section of the Constitution above set out, we think it unnecessary to inquire in this case, for the reason that the state of facts to which it is applicable does not arise. As Brown died before any certificate of election was issued to him, and as he did not intentionally abandon the office, this statute is not applicable to the case before us.
As we have reached the conclusion that the law is with appellee, upon the facts above stated the judgment of the Circuit Court should be affirmed.
Judgment affirmed.