149 Ind. 266 | Ind. | 1898
This proceeding was instituted, upon information filed in the lower court in the name of the State, on the relation of the appellant, John T. Morris, whereby he sought to eject the appellee, Elijah McFarland, from the office of county superintendent of the county of Martin, and gain admission himself to that office. On the issues joined there was a trial, and special finding of facts by the court, and conclusions of law stated thereon to the effect that the appellee was legally elected and entitled to the office in dispute, and that the relator take nothing by the action, and judgment was rendered accordingly.
The only material question presented for decision is as to whether the auditor of Martin county, under the facts, was authorized by law to give the casting vote which he did in the proceedings by the township trustees relative to the appointment of a superintendent. A summary of the material facts, as dis
Section 5900, Burns’ R. S. 1894 (4424, R. S. 1881), being the statute upon which the appointment of appellee to the office in question is based, omitting parts not essential to the question involved, reads as follows: “The township trustees of the several townships of each county shall meet at the office of the county auditor of such county on the first Monday of June, 1873, and biennially thereafter, and appoint a county superintendent. * * * Whenever a vacancy shall occur in the office of county superintendent, by
It is conceded by counsel for the appellant that had the resolution under which appellee claims to have been appointed received a majority of the votes cast by the trustees, it would have been adopted, and he would have been thereby legally elected. It being permissible, then, for a majority of the trustees to designate their choice of a person by either the adoption of a motion or resolution to that effect, upon what tenable grounds can it be asserted that, when an equal division of the trustees, present and voting, results upon the adoption of such motion or resolution, it does not constitute a tie vote within the meaning of the statute? That it would be such under parliamentary law or usage is evident. We must confess that we can perceive no sufficient reason for upholding the right of the auditor to give the casting vote, when the tie results from a vote taken by means of a ballot, and denying his right to do so when the trustees are equally divided upon a viva voce vote, taken on making the appointment by means of a motion or resolution. From the number of ballots taken in the case át bar,
In Launts v. People, 113 Ill. 137, the charter of the city of East St. Louis authorized the mayor to give the casting vote in case of a tie in the common council. On the adoption of a motion to approve the bond of the city treasurer, four of the eight members of the council voted in the affirmative, the other four refusing to vote, either in the affirmative or negative. It was said by the court in that case, that the mayor might treat those who refused to vote as being opposed to the motion, and the result would be equivalent to a tie, and would, therefore, warrant him in voting as in case of a tie. In the appeal of Carroll v. Wall, 35 Kan. 36, 10 Pac. 1, it was held that where the mayor, under the law, had the casting vote when the council was equally divided, he had the power, where a tie resulted on a motion to confirm the appointment of a city attorney, to give the casting vote. These decisions will, at least, serve to illustrate that a tie vote of an assembly, in which event a certain person designated by law is entitled to vote, may, and does arise, whether the proposition or matter before the body is attempted to be carried out by the means of a ballot, or by a viva voce vote on a motion or resolution.
We are constrained to hold that the auditor in each instance herein mentioned was entitled to vote, and
We are aware that the doctrine affirmed in the case of State v. Edwards, 114 Ind. 581, sustains the contention of appellant’s learned counsel, and therefore that case is in direct conflict in this respect with the conclusion reached in this appeal. It may be said, however, that the construction placed upon the statute relative to the right of the auditor to vote in that decision is narrow and apparently strained, and is unquestionably contrary to the very spirit or object of the law, and so far as the holding therein conflicts with that in this case, it must be considered and held to be overruled. Some of the earlier decisions of this court, in construing the statute in question, were inclined to be too strict, while the later ones are more liberal, and, as we believe, more in harmony with the spirit or intent of the law. See Wampler v. State, 148 Ind. 557.
The judgment below, under the facts and the law •applicable thereto, is a correct result, and is therefore affirmed.