27 Ind. 236 | Ind. | 1866
This was an information under the statute, in the form of a quo warranto, in the name of the State, on the relation of Cornelison, against Yonkey and Sims, to determine the right to the office of recorder of Clinton county.
The information is in three paragraphs. The first of these alleges, in substance, that the defendant, Yonkey, was duly elected recorder of said county in October, 1860, and after said election was duly qualified and entered upon the duties of said office, which he continued to discharge until about the 1st day of December, 1863, at which time he vacated said office by abandoning the same, in this, to-wit: that “ on or about said day, he ceased to reside in said county, and also ceased to attend to the duties of said office, and went to the city of Washington, D. C.; that he resided
The second paragraph is substantially the same as the first, except that Cornelison claims the office by virtue of his election thereto, at the annual election held 'in said county in October, 1864.
In the third paragraph, Cornelison claims the office by virtue of his appointment from the board of commissioners. This paragraph is very similar to the first, except that it
It is alleged in all the paragraphs that Yonkey was elected recorder in October, 1860, but it is not shown in either the first or second paragraph when his term of office under said election commenced, or when it would terminate, though it may be inferred from the language used, that his term had not expired at the time of the alleged appointment of Cornelison by the board of commissioners, in January, 1865. In the third paragraph, however, it is stated that Yonkey. was elected for the term of four years, commencing on the 16th day of August, 1861; his term would consequently expire on the 16th day of August, 1865. A demurrer to each paragraph of the information was overruled, to which the defendants excepted. Issues were formed by a denial of the facts alleged in the several paragraphs of the information, except the averments that Yonkey was duly elected to the office of recorder in 1860, and subsequently qualified and entered upon the duties thereof, the appointment of Sims as his deputy, and the refusal of the latter to surrender the same to the relator, which were admitted. The issues were tried by the court, a jury being waived by agreement of the parties. The court found that Yonkey did abandon the office, as charged
The errors assigned, are: 1. The court erred in overruling the demurrers to the several paragraphs of the information. 2. The court erred in overruling the defendants’ motion for a new trial.
We will consider them in their order. 1. Were the demurrers to the several paragraphs of the information correctly overruled ? This question presents no difficulty, so far as it relates to the first and third paragraphs. Each of these paragraphs alleges that Yonlcey, in December, 1863, ceased to reside in said county of Clinton, and thereby abandoned and vacated said office; that the office being vacant, the board of commissioners of said county, on the 30th of January, 1865, appointed the relator, Cornelison, to fill said vacancy; that ho thereupon gave bond and was duly qualified according to law, and, on the day following, demanded of Sims, who then held the office without authority or right, the possession of the office and of the books and papers belonging to the same. Section six of the sixth ai’ticle of the constitution of Indiana provides that “all county, township and town officers shall reside within their
A different question is presented upon the second paragraph, in which Cornelison claims the right to the office by virtue of his election thereto, at the October election in 1864. It is averred in this paragraph that he was “ duly qualified .as such recorder” on the 30th of January, 1865, and made .a demand of the office, &c., of Sins on the day following. If, as it is alleged in the paragraph, Yonkey vacated and .abandoned the office in December, 1863, by removing to Washington city and ceasing to reside in Clinton county, he ■could not afterwards legally resume the office, and therefore the election of Cornelison, in October, 1864, entitled him to 'its possession as soon thereafter as he should be commissioned and qualified, by executing a proper bond and taking the oath of office, as required by the statute. Section 9 of ■the act “touching official bonds and oaths” declares that “if any officer of whom an official bond is required, shall fail, within ten days after the commencement of his term
The remaining question presented arises upon the refusal of the court below to grant a new trial. One of the reasons stated for a new trial is, that the finding of the court was contrary to the evidence. The evidence is all in the record, and shows the following state of facts: Yonkey had a family and with them resided in Frankfort, in Clinton county. In December, 1863, he appointed one Merritt his deputy in the office of recorder of said county, and put him in charge of the office. Soon after this time, Yonkey went to the city of Washington, where he was employed as assistant door
It is not claimed that the duties of the office were neglected, or improperly performed, except that for a short period in July, 1864, after Merritt, the deputy, left the office, the duties were discharged by Sims, without his having taken the requisite oath, until the return of Yonkey, and even during that time it is not claimed that the public interest, or that of any private individual, suffered any detriment from the manner in which the office was kept. The case of The State ex rel. Cornwell v. Allen, 21 Ind. 516, is cited by the ajrpellee’s counsel as sustaining’ the decision of the court below. In that case, it was held that Allen had abandoned the office of auditor of Vigo county by volunteering in the military service of the United States for the period of three years. The decision of the case was based upon the fact that Allen, by voluntarily entering the military sei’vice of the United States, a position that ho could not abandon or leave at pleasure, had thex’eby permanently disabled himself to perform the duties of the office, or supervise the same. But it was said ixx the decision of that case, that “ a temporary disability to discharge the duties of the office might not, of itself, create a vacancy. In an office capable of being served by a deputy, the deputy of the principal might, doubtless, coxxtinue to act during the temporary disability of the principal, and if xxo deputy had been appointed, perhaps the sureties of the principal might appoint ” In the ease at bar’, Yonkey did not disable him
The judgment is reversed, with costs, and the cause remanded for a new trial.