150 Ind. 455 | Ind. | 1898
This was a suit by information in the nature of a quo warranto, filed by the relator, John E. Bishop, claiming to be the rightful county superintendent of Jay county, and charging the appellee with usurping and unlawfully intruding into said office, and calling on him to show by what authority he does so. The circuit court sustained appellee’s motion to strike out certain portions of the information, and overruled appellant’s demurrer to the second paragraph of appellee’s answer. The court also sustained appellee’s motion to strike out the second paragraph of appellant’s reply, and sustained appellee’s demurrer to the third and fourth paragraphs of said re
The action of the circuit court upon the motion to strike out certain portions of the information is not so presented by the record as to enable us to determine the correctness of that action. The bill of exceptions by which it is sought to incorporate into the record the portion of the information stricken out, contains the motion, reading as follows: “The said defendant moves the court to strike out and from the plaintiff’s amended complaint, all after the word ‘meeting’ in line 17, page 2, to and including the word ‘day,’ line 24, page 20, for the following reasons,” and then follows a statement of certain reasons for the motion. On turning to page 2, line 17, we find no such word as ‘meeting;’ and on turning to page 20, we find no such word in line 24 thereof as ‘day.’ No doubt that was a correct designation of the pages and lines, and the words therein, between which, as it appeared in the original complaint, the language sought to be stricken out would be found. But for us to find the language now, since the paging and lines have all been changed by incorporation into the transcript, would be the merest guess work. Moreover, the language stricken out is not in the record, because it is not in the bill of exceptions. The presumption is that all that appears in the information was left there by the court, unless the contrary is made to appear affirmatively by the record, and the contrary does not so appear. State, ex rel., v. Halter, 149 Ind. 292; Dudley v. Pigg, 149 Ind. 363, and cases there cited. Besides, we judicially know that the pages and lines referred to in the bill of exceptions are not the pages and lines
The record is in the same condition as to the action of the court in striking out the second paragraph of appellant’s reply. The bill of exceptions does not incorporate or contain any part of it, and as it was all stricken out by the court, it is not in the record, though what purports to be such reply has been copied into the transcript by the clerk. The clerk had no authority to transcribe it into the transcript. The question, therefore, as to whether the court properly struck it out or not, cannot be determined without an examination of the pleading. And that examination cannot be made by us unless such reply is properly incorporated in a bill of exceptions, duly authenticated as a part of the record.
The information shows that there are twelve townships in Jay county, and that pursuant to the statute, section 5900, Burns’ R. S. 1894 (4424, R. S. 1881), the township trustees of all the townships met at the auditor’s office in said county, on the first Monday of June, 1897, being the 7th day of June, 1897, for the purpose of electing a county superintendent. It names each trustee, giving the name of the township of which he is the trustee, and names P. L. Bishop as the trustee of Bearcreek township in said county. It shows that these trustees, twelve in number, at that meeting balloted for county superintendent 130 times, and that said trustee P. L. Bishop participated throughout said meeting, and voted as a township trustee, for county superintendent, without question of his right so to act. And with his vote there were twelve
The second paragraph of the answer is in confession and attempted avoidance, of the information. It admits that there were twelve townships in said county, and that said Peter L. Bishop was duly elected trustee of Bearcreek township, November 6, 1894, and that he gave bond as such, qualified, and entered upon the discharge of the duties of his said office ; that afterwards, to wit, on October 9,1896, the said Peter L. Bishop was duly appointed postmaster by the Postmaster General of the United States for the post-office at the town of Bryant, located in said Bearcreek township, in said county; that he filed his bond to the approval of the proper authority, and took the oath of office as such postmaster, and entered upon the discharge of the duties of such postmaster at said town of Bryant, and thereafter continued to discharge the duties thereto pertaining up to and until August 16, 1897; that by the acceptance of said office of postmaster, said Peter L. Bishop abandoned and impliedly resigned his said office of township trustee of said Bearcreek township, and that the same became then and there vacant, and remained so vacant; that Daniel E. Greiner, the prosecuting attorney, on May 25, 1897, began a suit
Besides the answer showing, as it does, that Bishop had been elected and inducted into the office of trustee of Bearcreek township, and was acting as such,at least de facto, his title to that office could not be questioned in this collateral way. Parker v. State, ex rel., 133 Ind. 200, 18 L. R. A. 567; Case v. State, ex rel., 69 Ind. 46; Blackman v. State, 12 Ind. 556 Bansemer v. Mace, 18 Ind. 27, 81 Am. Dec. 344; Mowbray v. State, ex rel., 88 Ind. 324; McGee v. State, ex rel., 103 lnd. 444, 446-447; Osborne v. State, ex rel., 128 Ind. 129-130; Relender v. State, ex rel., 149 Ind. 283, and authorities there cited.
In Parker v. State, ex rel., supra, this court said: “The rule that the acts of an officer de facto, performed before ouster, are, as to the public, as valid as the acts of an officer de jure, is too familiar to the profession to need the citation of authority. The public is not to suffer because those discharging the functions of an officer may have a defective title, or no title at all.” Many of the authorities above, are cited in support of this proposition-, among which is Case v. State, ex rel, supra. That was a suit upon the bond of a constable by the name of Darius C. Hutchins. The third paragraph of the answer in that case averred, “That said Darius Hutchins, before the alleged breaches of said bond had been committed, and before said writ of execution had been placed in his hands, to wit, on the 4th day of May, 1875, had been elected marshal of the town of Petersburgh, in Pike county ¿ State of Indiana, and had accepted said office, and filed his bond with the clerk of said town, as marshal, and had en-’ tered into the discharge of the duties thereof, all of which facts were matters of public notoriety, and well known to the justice who placed said writ in the hands of said Hutchins, and said justice had become bondsman for said Hutchins as marshal of the incorporated town of Petersburgh, aforesaid, wherefore,” etc. The
Cross-error is assigned by appellee upon overruling his demurrer to the information. The first objection to that pleading is that the relator had no right to sue in the name of the State. The statute is express authority to support appellant. Sections 1145, 1146, Burns’ R. S. 1894 (1131, 1132, R. S. 1881).
The only other objection worthy of notice is that the information fails to allege that the relator had been an inhabitant of the county during one year next preceding his appointment, a qualification required of all county officers by section 4, article 6, of the constitution. But the information alleged that the appellant was eligible. That was sufficient. State, ex rel., v. Gorby, 122 Ind. 17, 28; State, ex rel., v. Long, 91 Ind. 351, 354; State, ex rel., v. Bieler, 87 Ind. 327; Reynolds v. State, ex rel., 61 Ind. 392, 404; Relender v. State, supra.