The Jasper weekly courier. [volume] (Jasper, Ind.) 1858-1922, 1885-10-02
THE CLERKS OFFICE CON.
TEST.


Al the recent term Of the Dubois Cir
cult Court, the defendant filed .
demurrer TO the Plaintiffs informa-
Ition, as TO It's sufiiciency, the defend
ant alleging that the death OF Mr.. Lon.
Greene, clerk elect, before he had quail
lified as clerk, did not create any vacancy
lin the Office at the expiration Of the four
years term of defendant The demurrer
was ably argued upon both sides, and
Judge Welborn took three days in which
Ito examine authorities and think over
the points presented, and then overruled
the demurrer, filing q written opinion
therefor, which as matter OF general
public interest, we publish below. A
change OF venue from the Judge was
lihen demanded by the defendant and
Judge Malott's ruling followed Judge
lWelborn's.
Mr.. Schuhmacher IL now in possession
lof the Office, and the case will 60 10 the
Supreme court for final adjudication.
cas-.
State CT Indiana Ex Rel. l In the Dubois
Joseph !. Schumacher. Circuit Court,
VS.. sept erms
PeterJ. Gosmann, 1885.
A correct solution Of the controversy
lin this case depends upon the construc-
ltion that ought to be given TO sections
ll52 and 225 Of the constitution Of In
diana, and section 5563 Of the r. 5. 1881.
Section 152 Of the constitution reads as
follows:
.There shall be elected, in each coun-
lty. by the voters thereof, at the time Of
holding general elections, a. clerk of the
Circuit Court. The clerk shall
continue In Office four years; and no
person shall be eligible to the Office OF
clerk, more than eight years in
any period oftwelve years"
! Section 225, supra, provides that any
officer, other than q member OF the Gen.
eral Assembly, shall hold his Office de-
ring the term prescribed, and until his
successor shall have been elected and
Qualified.
Section 5562, r. S. 1881, Is Is follows
II -Wheneyer any vacancy occurs IN any
circuit or district Office commissioned
by the Governor, he may Gil such v.can-
icy uniil filed by qualified successor
1 Section 1858. 'The Doard Of County
commissioners shall fill al other vecan-
'cies in county Offices
!, The complaint AYERS that Gosmann':
term of Office, as Clerk of the Duboi:
Circuit Court, expired August IS, 1885
..lthat he had filed The Office by election
'lfor eight years next preceding said
date: that Hon. Bazil l.. Greene vs.;
,dulv elected AZ the general election IN
lNovem Der, 1854, had been commissioned
eby the Governor OF the State. and had
given bond to the approval OF the Board
OF County Commissioners, but II Is moi
'averred that Greene ever took the oath o.
office before bis death, which occurred
August 9th. 1885. twelve days before hs
twas entitled to take the Office. On Aug
,l19. 1885. The Board Of County Commis
llsioners of Dubois county, being OF ths
'Iopinion that vacancy existed 10 the Of
flee, appointed the rela.or 10 I'll saiG
Vacancy.
\ Al the time Of said appointment. wa
There vacancy in the Office oft Clerl
ss|of the Dubois Circuit Court, within th'
spirit and meaning Of the constitution
j This question. l think, must be an
'lswered ID the affirmative, or else a rum
'ber OF Legislative enactments must b
down and held void, and othel
results follow, entirely opposed 10 III
spirit of the constitution.
n The infirmitv OF the argument for th'
negative OF the proposition. consists IL
,the claim that the successor must b
,elected and qualified, and that this elec
hion and qualification must be necessa
srily one and the same person.
II If upon the facts stated, there was NJ
Vacancy on the 18th OF August, then
must follow that If The late Mr.. Green
had lived bat had failed TO qualify an'
-.lgive bond within the time limited b.
rliaw. there would Lave been no vacancy
-Ifor the reason that the defendants sue
lcessor was not both elected and quail
Allied. But such has not been the con
lstruction placed upon the constitution
either by the Legislature or BY the Su
nlpremc court ofthis State.
~ Section 5527, II. S. 1881, Is ss follows
rlsIf any officer OF whom an official bon'
Ia REQ uired shall fail, within ten day
hfter the commence ment Of bis term Q
,r|officc and receipt Of his commission
XII to give bond Ia The manner pre-
4 sscribed by law, the Office shall be vacant.
. The provisions Of this section nav
been frequently cited aud recognized
..lyalid, BY the Supreme court Baker Q
',lal ve. Wambaugh, 80 Ind. sI2; State, e
arcl. Ault, vs.. Long, 81 Ind. 35l-35s
nthe State ex rel. Morley W. johnson
loo Ind. Ss9. In the case Of State, e
rel. vs. Beard, La an. 27S. II was hcl
I.ihat the failure to quality within th
dtime prescribed by law created vacan
llcy 10 be filed BY appointment.
N in the contingency mentioned, ther