109 Ind. 73 | Ind. | 1887
This was á proceeding in the nature of a writ of quo warranto, prosecuted in the name of the State, on the relation of Martin Prilliman, against the town of Tipton, now claiming to have become an incorporated city, under the name of the City of Tipton, for the purpose of testing the legality of the alleged city organization. All the persons claiming to act as officers under the organization known as the City of Tipton were also made defendants.
The information gave the court below to understand and be informed that Prilliman, the relator, was a resident and duly qualified voter within the corporate limits of the town •of Tipton, as theretofore known, and the owner of real estate ■and a taxpayer therein ; that, on the 20th day of November, 1883, a petition was presented to the board of trustees of
A demurrer was sustained to the information, and final judgment was rendered upon demurrer, in favor of the defendants.
Section 1131, R. S. 1881, authorizes proceedings in the nature of quo warranto to settle questions similar to those sought to be raised by the information in this case, and the succeeding section provides that “ The information may be filed by the prosecuting attorney in the circuit court of the proper county, upon his own relation, whenever he shall deem it his duty to do so, or shall be directed by the court, or other competent authority, or by any other person on his own relation, whenever he claims an interest in the office, franchise, or corporation which is the subject of the information.”
Section 3031, R. S. 1881, and the six immediately succeeding sections, prescribe the manner in which the inhabitants-of an incorporated town may, under certain circumstances, adopt a city charter, and thus become an organized city under the general laws of this State. This right of adopting a city charter is, however, by section 3033, limited to cases in which the marshal of an incorporated town makes return of a census showing a population of at least two thousand persons.
Section 3035 provides for the submission of the question-as to whether the town shall become an incorporated city, to-the qualified voters, and that when a majority of the ballots, cast at the election held to determine that question shall be in favor of the proposed change, the inspector shall certify the result to the clerk of the circuit court of the proper county, who shall make a record in his office of the state
Construing this latter clause of section 3036 with the preceding section, to which reference has been made, it must be held to mean that nothing contained in the sections of the statute under consideration shall be construed as precluding any person interested from showing that a majority of the legal voters, who voted at the election held to determine the ■question, had not agreed to adopt a city charter.
It is not averred that the inspector of the election in question in this case did not certify to the clerk of the circuit court a proper statement of the votes cast at that election, and that the clerk did not make a record of such statement in his office.
As every officer, when there is no averment, or reasonable inference of fact to the contrary, is presumed to have done Ms duty, we must assume that a proper statement was certified by the inspector, and that a suitable record of it -was made by the clerk.
As the record which the clerk presumably made in this case is conclusive of the regularity of all the previous proceedings, except as to whether a majority of the votes given was in favor of the proposed change, it was, when this information was filed, too late to make a question as to whether such a census of the town of Tipton was taken as the law requires.
The averment in the information, that a majority of the legal voters of the town of Tipton did not vote in favor of the adoption of a city charter, was not the equivalent of an averment that a majority of the votes given at the election
Then, too, to authorize the prosecution of an information in the nature of a quo warranto, at the suit of a private person, in a case of the class to which the one before us belongs, it must be shown :
First. That the relator is not a mere stranger, or inter-meddler, or, in other words, that he is interested in the subject-matter embraced in the information.
Second. That he did not concur in the act or matter of which he complains.
Third. That, where there is no fraud or intentional violation of law, no public or private interest will be seriously affected by the granting of the relief demanded. 2 Dillon Munic. Corp., section 901.
There having been in the information, under consideration, no allegation that Prilliman, the relator, did not vote in favor of adopting a city charter, or otherwise concur in the proceedings of which he complains, the information was for that reason, also, materially defective. On the same general subject, see the cases of Stultz v. State, ex rel., 65 Ind. 492, and Mullikin v. City of Bloomington, 72 Ind. 161.
We have not considered the question as to whether, upon the facts stated, Prilliman was shown to be a proper relator in thé cause.
The judgment is affirmed, with costs.