State ex rel. Kelly v. Crane

Indiana Court of Appeals

State ex rel. Kelly v. Crane

129 N.E. 265, 74 Ind. App. 514, 1920 Ind. App. LEXIS 271

CourtIndiana Court of Appeals

DecidedDecember 22, 1920

DocketNo. 10,621

StatusPublished

This text of 129 N.E. 265 (State ex rel. Kelly v. Crane) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Kelly v. Crane, 129 N.E. 265, 74 Ind. App. 514, 1920 Ind. App. LEXIS 271 (Ind. Ct. App. 1920).

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Opinion

Nichols, J.

Appellee on February 1, 1911, was appointed by the commissioners of Laporte county as trustee of Center township, said county, to fill out the unexpired term of the then acting trustee, for the period of four years. Appellee held such office, under the appointment, from February 1, 1911, to January 1, 1915. At the November election, 1914, appellee was a candidate for, and was elected to, the office of such township trustee, and held the office until January 1, 1919. At the general election, November 5, 1918, appellee was again a candidate for the same office, and in such candidacy he was opposed by appellant’s relator. There were but the two candidates, appellee receiving 1,455 votes and the relator 1,306 votes. Relator duly qualified and made demand upon appellee for the office, but appellee refused to surrender the office, and this action resulted.

The court’s ruling in sustaining appellee’s demurrer to the complaint, which avers the foregoing, presents the only error for our consideration.

Appellant contends that appellee was ineligible to hold such office during the term for which he sought to be elected, and relies upon § 9564a Bums’ Supp. 1918, Acts 1917 p. 681. Section 1 of this act is as follows: “That any person who holds the office of township trustee of any township in this state for one (1) term or less, shall be eligible to said office for the next ensuing term unless otherwise disqualified. And, thereafter, no person shall be eligible to the office of township trustee for more than eight (8) years in any period of twelve (12) years.” [516]*516Appellee contends that, as his first four years of office were by appointment, the section quoted above does not apply, and relies upon §11, Art. 2 of the Constitution of the State of Indiana, which reads as follows: “In all cases in which it is provided that an office shall not be filled by the same person more than a certain number of years continuously, an appointment pro tempore shall not be reckoned as a part of that term.” The statute is confusing in its provisions, but we are wholly unable to give it any construction that its language will justify which will give comfort to appellant. There is nothing in the wording that indicates that it was intended to be retroactive. It is not “has held,” but “holds.” ■ Conceding without deciding that appellee is in the class of township trustees that have held the office “one term or less,” he is eligible yet for one term, and thereafter he is eligible for eight years in any period of twelve years. Again conceding without deciding that appellee’s “one term or less” was his appointive term, then his term just closed would be his “next ensuing term,” and thereafter he is eligible for eight years out of twelve. We can only construe this statute; we cannot legislate.

Judgment affirmed.

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Nichols, J.

Appellee on February 1, 1911, was appointed by the commissioners of Laporte county as trustee of Center township, said county, to fill out the unexpired term of the then acting trustee, for the period of four years. Appellee held such office, under the appointment, from February 1, 1911, to January 1, 1915. At the November election, 1914, appellee was a candidate for, and was elected to, the office of such township trustee, and held the office until January 1, 1919. At the general election, November 5, 1918, appellee was again a candidate for the same office, and in such candidacy he was opposed by appellant’s relator. There were but the two candidates, appellee receiving 1,455 votes and the relator 1,306 votes. Relator duly qualified and made demand upon appellee for the office, but appellee refused to surrender the office, and this action resulted.

The court’s ruling in sustaining appellee’s demurrer to the complaint, which avers the foregoing, presents the only error for our consideration.

Appellant contends that appellee was ineligible to hold such office during the term for which he sought to be elected, and relies upon § 9564a Bums’ Supp. 1918, Acts 1917 p. 681. Section 1 of this act is as follows: “That any person who holds the office of township trustee of any township in this state for one (1) term or less, shall be eligible to said office for the next ensuing term unless otherwise disqualified. And, thereafter, no person shall be eligible to the office of township trustee for more than eight (8) years in any period of twelve (12) years.” [516]*516Appellee contends that, as his first four years of office were by appointment, the section quoted above does not apply, and relies upon §11, Art. 2 of the Constitution of the State of Indiana, which reads as follows: “In all cases in which it is provided that an office shall not be filled by the same person more than a certain number of years continuously, an appointment pro tempore shall not be reckoned as a part of that term.” The statute is confusing in its provisions, but we are wholly unable to give it any construction that its language will justify which will give comfort to appellant. There is nothing in the wording that indicates that it was intended to be retroactive. It is not “has held,” but “holds.” ■ Conceding without deciding that appellee is in the class of township trustees that have held the office “one term or less,” he is eligible yet for one term, and thereafter he is eligible for eight years in any period of twelve years. Again conceding without deciding that appellee’s “one term or less” was his appointive term, then his term just closed would be his “next ensuing term,” and thereafter he is eligible for eight years out of twelve. We can only construe this statute; we cannot legislate.

Judgment affirmed.

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Bluebook (online)

129 N.E. 265, 74 Ind. App. 514, 1920 Ind. App. LEXIS 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kelly-v-crane-indctapp-1920.