190 N.E. 743 | Ind. | 1934
This is an action in quo warranto brought by the State of Indiana, ex rel. Walter E. Schrage against the defendant to determine the title to the office of Mayor of the city of Whiting, Lake County, Indiana.
The complaint, among other things, alleges that at a regular meeting of the city council on January 3, 1930, the council elected the relator, Walter E. Schrage, to the office of mayor of said city; that the relator duly qualified, took possession of said office, exercised and performed the duties thereof, that at the city election held on November 5, 1929, one Francis D. McNamara, and the defendant, Thomas S. Boyle, were the only candidates *576 for said office; that the said McNamara was duly elected to said office by having received a majority of the legal votes cast; that the board of canvassers declared the defendant, Thomas S. Boyle, elected to the office of mayor and issued to him under the hand of said board of canvassers a certificate of election which said defendant now holds; that thereafter within the time and in the form prescribed by law the said Francis D. McNamara instituted proceedings in the Lake Circuit Court for a recount of the ballots cast; that said ballots were recounted and a certificate was issued by the recount commissioners certifying and declaring that McNamara received the majority of the votes cast; that the certificate of election issued to the defendant, Boyle, by the board of canvassers did not correctly state the result of the election as to said office of mayor; that the defendant, Boyle, was not elected and did not receive a majority of the legal votes cast; that said certificate of election is erroneous and is superseded by the certificate of record.
The complaint further alleges the death of the said Francis D. McNamara on December 22, 1929, subsequent to the recount proceedings; that the said Francis D. McNamara did not qualify for the said office of mayor for the term beginning January 6, 1930, before his death on December 22, 1929; that by reason of the death of McNamara the relator is now the legal mayor of said city and entitled to hold possession of said office and exercise the functions thereof.
The complaint further alleges that on January 6, 1930, the defendant usurped, intruded into, and unlawfully and wrongfully and against the rights of the relator took possession of said office and now holds said office and exercises the functions thereof. The relator asks that defendant be ousted from said office and that he be given possession thereof.
The defendant filed a demurrer to the complaint of *577 relator for the reason that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, the relator refused to plead further, and final judgment was rendered against relator.
The assignment of errors assigns two grounds: first, the court erred in sustaining the demurrer, and second, the court erred in rendering final judgment against appellant.
The question presented is, does the complaint state a good cause of action against the defendant?
It is to be noted that the complaint does not aver or allege that the defendant did not qualify, as provided by law, before entering upon the duties of his office. The presumption is 1. that he did. The board of canvassers, acting at said election declared the defendant elected to the office of mayor, and issued to him a certificate of election. This certificate has never been set aside in any legal or lawful manner. No contest was ever had. True, a recount was had at the request of said McNamara and the recount commissioners found for McNamara and issued a certificate to him. No contest was ever had, and as far as the record shows none instituted, and at the time of the death of said McNamara, the defendant, Boyle, held the certificate of election.
It is the contention and theory of the appellant that no successor was elected and qualified for the reason that McNamara received the highest number of votes, and died before he qualified, and therefore Boyle, appellee, was not elected.
The appellant, in his brief, has presented, in an able manner, the law governing the rights of a hold-over officer, and also the right to maintain an action of quo warranto. It is admitted by the appellee that quo warranto is a proper remedy, but he contends that the *578 amended complaint of appellant does not state facts sufficient to constitute a cause of action under the Information Statute. The cases cited and discussed by appellant as to the rights of a hold-over officer state the law correctly, as we are informed, but we do not think these cases are decisive as applied to the facts in the instant case.
We think it must be conceded that the recount, and the recount certificate did not constitute a declaration of the election of McNamara. In the case of Williams v. Bell (1915),
So in the instant case the recount was not a judicial proceeding, nor a final adjudication of the title to the office of mayor. And, moreover, the statute for a recount only 2-4. applies to one who was a candidate and who desires to contest the election. § 7587, Burns 1926, § 29-2102, Burns 1933, § 7388, Baldwin's 1934. It is a special proceeding and the recount certificate can not avail the appellant in the instant case. In a petition for a recount it is necessary to allege that the petitioner desires to contest the election.Layman v. Dixon (1916),
The relator, in the instant case, if he is entitled to recover, must do so upon the strength of his own title and, not on the weakness of his opponent's title. Relender v. State ex rel.
5. Utz, Prosecuting Attorney (1897),
So, in the instant case, the appellant must recover, if at all, upon the strength of his own title and not upon any infirmity or weakness of that of the appellee. What title has the appellant? Clearly, the rights of a hold-over, if any.
It has been said by this court that it is the duty of an incumbent of a public office at the expiration of his *581
term, when a certificate of election has been issued to 6-8. another who has qualified thereunder, to surrender the office to his successor. Couch v. State ex rel. (1907),
When the appellant's term of office expired on January 6, 1930, it was his duty to surrender the office to the one holding the certificate of election. The appellee was the holder of the certificate and it was prima facie evidence of his election until said certificate was set aside or annulled in some legal proceeding. And as between the appellant and appellee it was not annulled or set aside by reason of the recount upon the petition of McNamara.
In the case of State v. Slack (1928),
We think the cases of DeArmond v. State ex rel. *582 Campbell (1872),
So in the instant case, the appellee held the election certificate, qualified and entered upon the duties of his office. And clearly under the authority of the foregoing case if McNamara had lived and contested the election of Boyle, the appellant would have had no right to hold the office after his term expired. And he has no such right now, because of the death of McNamara. The fact that a recount had been had, and the recount certificate given to McNamara, prior to his death could make no difference as far as the appellant is concerned. As heretofore said, there was no contest, and no contest proceedings instituted, and for all that is known there might never have been a contest had McNamara lived.
What right has the appellant to hold the office after *583
his term had expired, because McNamara, had he lived might have successfully contested the election of Boyle? For all that the appellant knows McNamara would never have contested the election. There is nothing in the record to show how many more votes McNamara received in the recount than Boyle. It may have been only one, and, if so, can it not be imagined that McNamara might have said to himself and to his supporters, I can not afford to go on with the contest and take the chance of losing, and I will submit to the legality of Boyle's election. Such a course of action is not only possible, but, as we know, has often occurred. Under such presumed state of facts would the appellant have had any rights as a hold-over officer? Clearly not. This is a case where the appellant is attempting to hold on to the office for his own benefit by championing a losing party. This is well expressed in the case of The Supervisors v. O'Malley (1879),
In the case of Parmater v. State, ex rel. Drake, supra, John A. Smith and Walter S. Hazelton were opposing candidates for county commissioner. The appellant, Parmater, had been appointed commissioner to fill an unexpired term of one who had died. Smith had been declared elected and Parmater refused to surrender to Smith. A proceeding in the nature of a quo warranto in the name of the State on the relation of the prosecuting attorney was brought to oust Parmater. One of the reasons assigned in appellant's motion for a new trial was the refusing to allow the appellant to prove by introducing the ballots in evidence that John A. Smith was not elected, and that one Walter S. Hazelton was elected. In the course of the opinion the court said, p. 99: "This is a suit by the State to oust appellant from the office he is holding, and in which the appellant can not collaterally attack the certificate of election of Smith. If it had been a case of contest of the election between Hazelton and Smith there is no doubt but Hazelton would have had the right to go behind the certificate, for as to him Smith's certificate would only be prima facie evidence of Smith's election. But as between the appellant and the State, the title to the office as between Hazelton and Smith, over the regular certificate of election can not be inquired into."
It surely must be conceded that the foregoing case is directly in point here. The appellant here is undertaking to do what the appellant sought to do in the above case and the court held against him. Schrage seeks to show that Boyle was not elected, but that McNamara was, just as in the above case the appellant *585 undertook to show that Smith was not elected, but that Hazelton was, and that the appellant had the right to prove this fact by introducing the ballots. This the court held could not be done.
In our judgment the demurrer to the amended complaint was properly sustained and no error was committed in rendering final judgment against the appellant.
The appellees have asked for an oral argument, but as the judgment of the lower court is affirmed, we see no necessity of an oral argument.
Judgment affirmed.