175 Ind. 511 | Ind. | 1911
This action, in the nature of quo warranto, was brought by the State, on the relation of M. Clifford Townsend, against William P. Modlin, to oust the latter from the office of county superintendent of Blackford county, and to declare the relator the rightful incumbent thereof.
Appellant filed an answer of former adjudication in one
Appellant further alleges in his answer that this judgment was never appealed from, vacated, changed or modified, and is in full force and effect; that after the rendition of this judgment Geiger surrendered the office to appellant, who has ever since held it, and performed the duties thereof. To this answer a demurrer for want of facts was sustained by the court, appellant declined to plead further, and, judgment was rendered ousting him from the office in controversy, from which judgment this appeal is prosecuted. The only error assigned here is the action of the lower court in sustaining the demurrer to the answer.
On behalf of appellant it is contended that where the State brings an action on the relation of a citizen, and procures a judgment declaring such relator to be the duly elected and qualified county superintendent of a county for a given term, it cannot, during such term, maintain another action on the relation of another citizen for the same purpose.
Our statute, governing actions of this character, authorizes the filing of an information by the prosecuting attorney
It has been held by this court repeatedly, that to enable a private person to maintain an action of inquiry as to the right to hold a public office, he must allege a special interest, and one not common to the general public. State, ex rel., v. Bradt (1908), 170 Ind. 480; State, ex rel., v. Reardon (1903), 161 Ind. 249; State, ex rel., v. Dudley (1903), 161 Ind. 431; State, ex rel., v. Bell (1907), 169 Ind. 61, 13 L. R. A. (N. S.) 1013, 124 Am. St. 203; State, ex rel., v. Johnston (1909), 173 Ind. 14.
In the case of Vogel v. State, ex rel. (1886), 107 Ind. 374, a prosecuting attorney, by information in the name of the State, challenged the right of Vogel to hold the office of township trustee. To this information Vogel filed a plea in abatement, in which he alleged that he had been elected trustee of the township in 1884; that at the April election in 1886, he and one Marks were rival candidates for the office; that although Marks received the highest number of votes, he was not, and could not be elected, because he was ineligible; that he (Vogel), in the statutory mode, contested Marks’ right to the office, which contest was then pending. This court held that there was no error in sustaining a demurrer to said plea, using the following language: “The rights of the State in a matter of this kind are above the rights of individual claimants, and its rights will not be affected by any proceedings that such parties may institute as between themselves. If it were otherwise, the State might be rendered powerless to eject from office an intruder placed in it by a collusive litigation.”
In the action brought against Geiger, appellant, as relator, was litigating the right to the office as between
Judgment affirmed.