State ex rel. McMullen v. Harris

52 N.E. 168, 152 Ind. 699, 1898 Ind. LEXIS 281

• Court: Indiana Supreme Court
• Decided: December 16, 1898
• Docket: No. 18,521
• Status: Published

Opinion

Jordan, J.

This action was instituted by the State upon information filed on the relation of Harry R. McMullen, prosecuting attorney for the seventh judicial circuit, of which the county of Ohio forms a part, for the purpose of ousting the appellee from the office of treasurer of that county. A demurrer was sustained to the information for insufficiency of facts, and the court gave judgment in favor of appellee, from which the State appeals and assigns that the court below erred in sustaining the demurrer to the information.

The question sought to be presented involves the validity of the act of the legislature approved March 2, 1897, which fixes the beginning of the terms of.county treasurers in each county in this State. Acts 1897, p. 288. The facts in this case appear to be as follows: Appellee, Harris, was elected treasurer of Ohio county at the general election of 1894, for a term of two years ending August 10, 1897, and was serving his first term under said election. At the November election in 1896, one William H. Elliott was elected his successor and on the 10th day of August, 1897, he duly qualified, as provided by law, and, on the day following, demanded the office of appellee, which the latter refused to surrender on the ground that the former’s term did not begin until January 1, 1898, as provided by the statute in question. The constitutional validity of the act of 1897 and the right of appellee to hold over, under the provisions of the Constitution, until January 1, 1898, was sustained by the lower court in its ruling on the demurrer, and under the authority of the decision of this court in the appeal of Scott v. State, ex rel., 151 Ind. 556, this holding is correct and the judgment must be affirmed. Judgment affirmed.