131 Ind. 388 | Ind. | 1892
This is an action brought by the relator, Marion C. Walden, against the appellee, James A. Vanosdal, to determine the title to the office of county school superintendent.
The relator filed a complaint in four paragraphs. The first and second paragraphs were withdrawn by leave of court, and a demurrer was sustained to the third and fourth paragraphs. The ruling upon the demurrer to the complaint is assigned as error, and presents the questions for decision.
The relator was elected county school superintendent in June, 1887, and. claims title to the office by reason of holding over after the time for the election of his successors in 1889. And the appellee claims title to the office by virtue of an election by the township trustees in 1889.
The relator alleges facts in each of the third and fourth paragraphs of the complaint which he contends show that the appellee was not elected in 1889, nor was any person elected to succeed the relator.
The facts in the third paragraph show that in said county of Switzerland there were six township trustees; that they all met at the auditor’s office in said county on the first Monday of June, 1889, and elected one of their number president, and determined to elect a county school superintendent by ballot, and they commenced balloting, and balloted 236 times, there being six votes cast each time, the highest for any one candidate being three, and on the 237th ballot the appellee received three votes, and no votes were cast for any other candidate, and the president declared him elected. One
The fourth paragraph shows the same state of facts, and in addition alleges that, having been in continuous session from one o’clock P. M. of said day until twelve o’clock at night, and failing to elect, three of the trustees, deeming it of no use to continue balloting, announced that, the hour of midnight of the first Monday of June having passed, they would refuse to act longer, and would take no further part in said proceedings, and said three trustees then withdrew from said meeting by getting up and leaving the place where all of said balloting had taken place, and stepping away therefrom into the crowd of by-standers.
There are other general averments that they had withdrawn, and there was no quorum present, but these specific averments control, and show what was in fact done, and there are averments that the final vote was taken after twelve o’clock at night.
The full number of trustees met and organized, and must be held to be present when the final vote was taken and the appellee declared elected. There was no such absence of the three trustees as can be said to have broken the quorum. As appears from the facts alleged the meeting was in the auditor’s office, and there were bystanders looking on and listening to the proceedings. The three trustees stepped from the part of the room occupied by them among the bystanders. They could not change from trustees to mere spectators in the same room when they still had an opportunity to act and vote with the others and thus prevent an election. Being present it was their duty to act; they were, in fact, present. The president had a right to treat them as a part of the board, and they must be treated as present and failing or refusing to vote. The statement to the clerk by one of them that they protested, or that they would take no further part, and stepped out among the bystanders,
The question as to whether or not the appellee, Vanosdal, was elected, having received a majority of the votes east, there being a quorum present, has been decided by this court in Rushville Gas Co. v. City of Rushville, 121 Ind. 206, and State, ex rel., v. Dillon, 125 Ind. 65. Under the rule, as laid down by these decisions, it must be held that Vanosdal was duly elected. The principle settled by these decisions is to the effect that the presence of the other trustees suffices to constitute the elective body, and if any of them neglect to vote it is their own fault, and the assembly being sufficient to constitute an elective body, the person receiving a majority of the votes cast is duly elected. In this case four of the trustees would constitute a quorum, but the
The latter case intimates, without deciding, what we regard as the correct rule, that if necessity requires it there may be an adjournment from day to day for the purpose of securing an election, and sustains our holding in this case; and it is not necessary in this case to hold even that the board may adjourn over, for in this case they continued in session until an election was had.
There was no error in the ruling of the court in sustaining demurrers to the third and fourth paragraphs of complaint.
Judgment affirmed, with costs.