State Ex Rel. Hogue v. Slack

*244 Willoughby, J. This was an action by appellant against appellee in the Marion Circuit Court in the nature of quo warranto for usurpation of the office of mayor of the city of Indianapolis. This proceeding is based on §1212 Burns 1926, which provides that whenever an information shall be filed against a person for usurping an office by the prosecuting attorney, he shall also set forth therein the name of the person rightfully entitled to the office with an averment of his right thereto; and when filed by any other person, he shall show his interest in the matter, and he máy claim the damages he has sustained. The complaint was in two paragraphs and appellee demurred to each paragraph separately and severally. The demurrer was sustained, and appellant refused to plead further and judgment was rendered against him that he take nothing by the suit and that he pay the costs of the proceedings. The appellant appeals and alleges that the court erred in sustaining' appellee’s demurrer to each paragraph of appellant’s complaint. The complaint alleges facts showing the age and residence of the plaintiff, and then states that one Samuel Lewis Shank was elected mayor of the city of Indianapolis, on November 8, 1921, for four years beginning January 2, 1922. That he served as such mayor from January 2,1922, to January 4,1926. That Joseph L. Hogue was appointed by him as city comptroller. John L. Duvall was elected mayor in November, 1925, and succeeded Shank January 4, 1926. He then appointed William C. Buser as city comptroller, who later resigned. He then appointed Claude Johnson, who also resigned. On September 23,1927, he appointed ' Maude E. Duvall, who was comptrollerwhen Duvall, himself, resigned as mayor. On October 27, 1927, Maude E. Duvall, acting as mayor, appointed Ira M. Holmes, to act as city comptroller and on the same date, October *245 27, 1927, she resigned as mayor. Holmes occupied the office as acting mayor until the following day, October 28, 1927. The city council on October 27, 1927, declared the office of mayor vacant and elected one of their number, Claude E. Negley, as temporary mayor, who ousted Holmes from the city hall by a restraining order issued by the Marion Superior Court, and on November 8, 1927, the city council elected L. Ert Slack, as mayor to fill out the unexpired term of John L. Duvall. The council, in declaring the mayor’s office vacant, declared that it had been vacant since September 22, 1927, and that Duvall thereafter was incompetent to appoint any controller or any other city officer. That Duvall, while a candidate for the office of mayor in said city election in November, 1925, violated the Corrupt Practices Act in several particulars. . Specific violations were named in the complaint. The complaint alleges that each of the promises made in violation of the Corrupt Practices Act was illegal and fraudulently concealed at said city election. That said electors who voted for said Duvall did not know thereof and did not know that said Duvall was disqualified and ineligible to hold said office. That said Duvall was elected at said election for said office of mayor on the Republican ticket, having received the highest number of votes. That said Duvall, within thirty days after said election, made out and filed with the city clerk a statement as required under the Corrupt Practices Act, and that the city clerk, believing and relying upon said false statement in said written statement, issued a certificate of election to said Duvall, certifying that the said Duvall was the duly elected mayor of the city of Indianapolis, and that said certificate was and is at all times regular on its face. That said Duvall presented said certificate of election to Samuel Lewis Shank, the occupant of the mayor’s office, and thereafter, on the same day, said Duvall took and subscribed to the *246 oath of office of mayor. Said Duvall, after intruding into said office of mayor, and pretending to be qualified to act as said mayor, and wholly without legal authority, attempted to appoint one William C. Buser as city comptroller, and fixed the time of the beginning of the term of said Buser as of January 4, 1926. That said Buser at said time had knowledge that said Duvall was ineligible to the office of mayor and was an intruder therein. That said Buser presented his certificate of comptroller to the relator Hogue, who was the city comptroller, and said Hogue, relying thereon, turned over to the said Buser the office of city comptroller of the city of Indianapolis, in good faith believing that he was surrendering his office to a duly-appointed successor. That said Duvall was disqualified to hold said office of mayor. The complaint further alleges that said Duvall was prosecuted upon an affidavit filed May 17, 1927, in the criminal court of Marion County, for a violation of the Corrupt Practices Act. That said Duvall was tried upon said affidavit by a jury and the jury found him guilty and fixed his punishment at thirty days in the Marion County jail and a fine of $1,000, and found him disqualified to hold the office of mayor of the city of Indianapolis for four years from and after November 2, 1925. That on October 12, 1927, judgment was pronounced by the Marion Criminal Court on said verdict. The relator further alleges that, in so far as said mayoral election was concerned, it was void as to said Duvall, and that no successor was duly elected to succeed Samuel Lewis Shank. That Shank was at all times continuing to be the mayor of said city until his death. And from that time on, relator, who was appointed city comptroller, hasbeenthe only legally-appointed city comptroller of said city. That, on the death of Shank, said relator was the only legally-qualified comptroller of said city and ever since has been entitled to act as mayor of said city. On *247 October 24, 1927, this relator demanded of said Duvall the office of said mayor and that said Duvall refused to surrender said office or the possession thereof. On October 24, 1927, this relator filed an information of quo warranto against Duvall, for usurping said office, in the Marion Circuit Court. On November 7, summons was returnable on said complaint and on October 19, 1927, Duvall entered his appearance in said cause. That Duvall, at that time claiming to be the legal mayor of Indianapolis, attempted to and purported to resign as such mayor and surrendered the possession thereof to one Maude E. Duvall. That Maude E. Duvall claimed to be the qualified city comptroller of the city of Indianapolis, under the appointment by said John L. Duvall, of September 26, 1927. That upon said attempted resignation, said Maude E. Duvall claimed that she became acting mayor of the city of Indianapolis. That on October 27, 1927, said Maude E. Duvall, was acting as mayor, and purported to appoint one Ira Holmes as city comptroller. That thereafter said Maude E. Duvall, resigned as acting mayor. On October 27, 1927, the council of- the city of Indianapolis attempted and purported to declare the office of mayor vacant and elected one Claude E. Negley to act as mayor pro tempore until they should appoint a permanent mayor. On October 28, said Claude E. Negley obtained an injunction against said Ira M. Holmes, enjoining said Holmes from interfering with the possession of said office of mayor by sard Negley. That Negley remained in the possession of said office until the 8th day of November, and claimed to be entitled thereto as mayor pro tempore. On November 4, 1927, this relator demanded of said Negley the office of said mayor and he refused to surrender. That on November 8, 1927, said common council appointed the defendant, L. Ert Slack, as permanent mayor of the city of Indianapolis. That said Slack *248 took possession of the same and has at all times held such possession and claims that he is entitled to such office. The relator says that the acts of the common council were each wholly void for the reason as above stated that no vacancy has at any time existed in the office of mayor of the city of Indianapolis. The relator demands that Slack turn over the possession of said office and he declines to do so. The relator demands judgment in the sum of $5,000, and that defendant be ousted from the office of mayor of the city of Indianapolis, and that this relator have possession thereof. If an information is by a person claiming the office, the facts must be stated showing his title thereto and his eligibility to hold such office. Reynolds v. State, ex rel. (1878), 61 Ind. 392; State, ex rel., v. Long (1883), 91 Ind. 351; Chambers v. State, ex rel. (1891), 127 Ind. 365, 26 N. E. 893; Bishop v. State, ex rel. (1898), 149 Ind. 223, 48 N. E. 1038, 63 Am. St. 279, 39 L. R. A. 278; State, ex rel., v. Ireland (1891), 130 Ind. 77, 29 N. E. 396. A person who is not interested in a public office except as the public generally is interested cannot maintain an information to try the title to an office or to oust officers. State, ex rel., v. Reardon (1903), 161 Ind. 249, 68 N. E. 169; Modlin v. State, ex rel. (1911), 175 Ind. 511, 94 N. E. 826, Ann. Cas. 1913C 669; Reynolds v. State, ex rel., supra. At the Indianapolis city election of 1925, Duvall received the highest number of votes, a certificate of election was issued to him, and he duly qualified as mayor on January 4, 1926, and Shank relinquished to him said office. Although Duvall’s election was subject to contest and his title as evidenced by the certificate of election was defeasible by reason of his ineligibility, nevertheless such election and qualification were sufficient to vest him with color of title to *249 said office and thereupon terminate Shank’s tenure of office within the meaning of the statute prescribing the term of the office of mayor. §10266 Burns 1926; McGee v. State, ex rel. (1885), 103 Ind. 444, 3 N. E. 139; DeArmond v. State, ex rel. (1872), 40 Ind. 469; Couch v. State, ex rel. (1907), 169 Ind. 269, 272, 82 N. E. 457, 124 Am. St. 221; Landes v. Watts (1903), 160 Ind. 216, 66 N. E. 679. Joseph L. Hogue was appointed by Shank as city comptroller to serve until his successor was appointed and qualified. He relinquished that office on January 4,1926, to William C. Buser, upon the presentation by Buser to him of a certificate evidencing the appointment and qualification of Buser as city comptroller by Duvall. Even though subject 'to attack in a direct proceeding because of Duvall’s ineligibility or for any other sufficient reason, the appointment of and qualification by Buser terminated Hogue’s tenure of office within the meaning of the Constitution and the statute providing that the city comptroller shall hold office until his successor is appointed and qualified; and Hogue, or any other person claiming the office of city comptroller, was thereupon remitted to litigation against Buser and his successors to establish his claim to title to the office of city comptroller. The complaint expressly shows that Hogue has never taken such action, and the present suit is not tenable. §10295 Burns 1926; Parmater v. State, ex rel. (1885), 102 Ind. 90, 3 N. E. 382; McGee v. State, ex rel., supra; DeArmond v. State, ex rel., supra; Dillon, Municipal Corp. (5th ed.) §§518, 519; Constantineau, De Facto Doctrine §§346, 347. Hogue can recover only upon the strength of his own title to the office of mayor and not upon any alleged weakness in Slack’s title to said office. Relender v. State, ex rel. (1898), 149 Ind. 283, *250 49 N. E. 30; State, ex rel., v. Wheatley (1903), 160 Ind. 183, 66 N. E. 684. Hogue fails to show that he has any interest in the office of mayor here in controversy, or that Slack has intruded into or is claimingthe office of comptroller to which relator was appointed. Hence, Hogue has no valid cause of action against Slack. §§1208, 1209, 1212 Burns 1926; Reynolds v. State, ex rel., supra; State, ex rel., v. Wheatley, supra; State, ex rel., v. Tancey (1903), 161 Ind. 491, 69 N. E. 155; Wells v. State, ex rel. (1911), 175 Ind. 380, 94 N. E. 321, Ann. Cas. 1913C 86, note. The only office to which Hogue has ever had any title is city comptroller; therefore there is no showing of intrusion or usurpation. See State, ex rel., v. Tancey, supra. Appellant Hogue claims as holding over as comptroller, under Art. 15, §3, of the Indiana Constitution, but he has not been occupying the office or had any connection with its duties since January 4,1926, when he surrendered the office of comptroller to one Buser. On October 24, 1927, he demanded of Duvall the office of mayor and was refused. He put his claim as resting on his holding the office of comptroller under Mayor Shank, who died more than a year after he had surrendered the office of mayor to Duvall, who had been elected and qualified as his successor. The constitutional provision that officers shall hold until their successors are elected and qualified, §232 Burns 1926, being Art. 15, §3, of the Constitution of Indiana, requires that the time held over shall immediately follow the expiration of the term of office; that there shall be no holding or occupancy of'the office by some one else between the expiration of the term and the time the incumbent holds over under the Constitution. *251 In State, ex rel., v. Harrison (1888), 113 Ind. 434, 16 N. E. 384, 3 Am. St. 663, it is said: “It adds an additional contingent and defeasible term to the original fixed term, and excludes the possibility of a vacancy.” In Steinback v. State, ex rel. (1872), 38 Ind. 483, on page 488, the term “qualified” is defined. The court there says: “The term elected is too well understood in our country to require any definition. The term qualified was not used in its ordinary or popular signification, as possessed of endowments or accomplishments, or intellectual capacity, or moral worth to discharge the duties of an office, but the framers of the constitution intended thereby that a person who had been elected to an office, and had taken the oath of office, and given bond, where a bond is required, was qualified and had the right to assume and discharge the duties of such office. The acts to be performed depend upon the character of the office. If a person has been elected a judge, he is qualified when he takes the oath of office; while officers who are required to give bond and surety have, in addition to taking the oath of office, to give bond with approved security; and when these things have been done, the person elected or appointed has qualified and is an officer de jure.” It appears from the allegation of the complaint that Samuel Lewis Shank was elected as mayor of Indianapolis for a term of four years from January 2,1922, until his successor was elected and qualified. The Indianapolis city election of 1925 resulted in Duvall receiving the highest number of votes and he qualified as mayor on January 4, 1926, and Shank relinquished to him the said office. This puts Shank out of the office of mayor to which he had been elected, and he cannot claim to hold over under the constitutional provision, for reasons above stated. The election of *252 Duvall was not void. He was duly and legally elected to the office of mayor and qualified and took possession of said office. Of course, the prosecuting attorney had a right to attack his title to the office by quo warranto proceedings and any other person who could show a title to the office could contest the title. That is what is being done in this proceeding. The complaint is filed on the relation of one Hogue, and, in order to succeed, he must first show aright or interest in the office himself, pursuant to the statute, §1212 Burns 1926. The complaint does not show that the relator has any right to the office of mayor of Indianapolis. The facts pleaded show that on January 4, 1926, Samuel Lewis Shank surrendered the office of mayor of the city of Indianapolis and ceased to be mayor from said date until his death. Said Samuel Lewis Shank died on September 24,1927. The facts pleaded do not show that the election in which John L. Duvall was chosen mayor was a void election. The facts show that when Duvall “presented his certificate of election and showed that he had been qualified as required by law, it was the duty of Shank, the incumbent, to forthwith surrender his office to Duvall, and he did so. The facts pleaded show that on January 4,1926, the relator abandoned the office of comptroller of the city of Indianapolis and was never comptroller thereafter and also show that William C. Buser was appointed and qualified as comptroller of that city from January 4,1926, and, for a continuous period of approximately twenty months thereafter, he continued to occupy the office of said comptroller. It is admitted by appellant that the said Buser was the defacto comptroller from January 4,1926, for a continuous period of more than twenty months and we hold that the facts alleged show that he was the de jure comptroller during said time. See Dillon, Municipal Corp. (5th ed.) *253 §§518, 519; Constantineau, De Facto Doctrine §§346, 347; People v. Staton (1875), 73 N. C. 546. The facts pleaded show laches on the part of the relator in failing to assert any claim to the office of comptroller or the office of mayor for a period of approximately twenty months. State, ex rel., v. Gordon (1882), 87 Ind. 171, and cases there cited. It was not necessary for the appellant in his complaint to allege anything in regard to the title of the defendant, but appellant's complaint does allege facts which show that at the time the city council passed a resolution declaring that a vacancy existed in the office of mayor, such vacancy did exist and it became its-duty to fill it; and the complaint alleges that it. did so. The section of statute under which said council was required to fill said vacancy is §10276 Burns 1926, which provides that, in case of a vacancy in the office of mayor, the city comptroller, in all cities having such office, shall act as mayor, providing that such officer, while acting as mayor, shall not perform any duties of comptroller, but shall appoint a suitable person to act as comptroller during such time; and, in the event of the death, resignation or disability of said city comptroller, meaning the city comptroller who was acting as mayor, the common council shall designate one of its members to act as mayor pro tempore until a special meeting of the council can be held, not less than ten days nor more than fifteen days thereafter, at which meeting the council shall elect a suitable person to fill out the unexpired term of mayor. The allegations show that the common council did designate one of its members to act as mayor pro tempore and that, pursuant to the statute, not less than ten days and not more than fifteen days thereafter, it proceeded to elect a mayor to serve out the unexpired term of John L. Duvall. That it elected the appellee, L. Ert Slack, who *254 proceeded to qualify and is now, and has been ever since he so qualified, acting as mayor and performing the duties of mayor. From the allegations of the complaint, we hold that he was duly and legally elected according to law to fill out such unexpired term, and is now the legal mayor of said city of Indianapolis. The trial court did not err in sustaining the demurrer to each paragraph of the complaint. The judgment is affirmed. Myers, C. J., concurs in the result reached. Travis, J., dissents. Martin, J., not participating.