Oppenheim v. Pittsburgh, Cincinnati & St. Louis Railway Co.

On Petition eob, a Reheabing.

Elliott, J.

The appellee insists that no question is presented upon the motion for a new trial for the reason that no exception was taken to the finding of the court upon the agreed state of facts. The whole argument upon this point proceeds on the assumption that an agreed case is the same thing as a case wherein there is an agreement as to what facts shall be taken as the evidence in the case. Section 386 of the code refers to agreed cases, and has no application to cases where there is an agreement as to the facts. The cases holding that an exception to the finding is the proper method of presenting the question of the correctness of the decision apply to agreed cases, and not to cases where the agreement is that certain facts exist and shall be taken as evidence. Lofton v. Moore, 83 Ind. 112; Slessman v. Crozier, 80 Ind. 487; Downey v. Washburn, 79 Ind. 242; Martin v. Martin, 74 Ind. 207; Manchester v. Dodge, 57 Ind. 584; Fisher v. Purdue, 48 Ind. 323; Carlton v. Cummins, 51 Ind. 478; Western Union Tel. Co. v. Frank, post, p. 480.

Some confusion has been introduced by an inadvertent misuse of the term “agreed statement of facts” where the term “agreed case” should have been used. The decision in Thatcher v. Ireland, 77 Ind. 486, must be understood as referring to an agreed case, not as referring to an agreed state of facts used as evidence. The record in this case recites that “ the following agreement of facts was introduced as evidence,” and shows, also, that this -was an ordinary suit for injunction and not an “agreed case” under the statute.

The counsel of appellee, in his brief on the petition for a rehearing, says: “ The only question in this case that admits of controversy is whether by ordering an election of city judge the *478office became a permanent and continuing one without the-approval of the common council,” and this question we fully-considered and determined * in the former opinion, holding that when the city adopted the provisions of the act the court provided for by that act became a permanent and continuing one, and that the common council was not bound to go through the ceremony of rcadopting the provisions of the act as often as the term of office of the person elected to the office of judge expires. We think it clear that when the Legislature enacts a law providing for the establishment of a city judge, or of the office of city attorney, or street commissioner, or any office, and the municipality adopts the provisions of the law, it is adopted once for all, and that the action need not be reaffirmed as often as the terms of office expire.

Whether the council might have rescinded their action is-not a questio'n in .this case, for there i.s no pretence that it was-rescinded. The utmost that is claimed is, that there was no affirmative ordinance or resolution continuing in force the first act accepting the law enacted by the Legislature.

Nor are we dealing with the case of a direct attack upon the right of McGregor, befo re whom the judgment was reudered, and by whom the attachment was issued, to exercise the authority of city judge of Logansport. The case is not one against McGregor, assailing his title in behalf of the public, or on behalf of some claimant to the office; nor is it a ease against him, where, in order to justify his action, he must show some right to the office claimed by him. The case is one by a citizen, who, finding McGregor in office, treated him as rightfully there, and acquired rights upon the faith of his having a right to hold it.

McGregor was elected to the office he claims; no successor was elected; there is a public act providing for the creation of such an office, and providing that one elected to fill it shall serve until the electioxr of his successor. The appellant sued out an attachment and issued process in garnishment against the appellee; the latter appeared, submitted voluntarily, and, without objection to the jurisdiction of the court, answered *479and suffered judgment. Conceding, but by no means deciding, that McGregor was not an officer de jure, he was, at all events, an officer defacto, and his acts were valid, not, perhaps, upon-this concession as to himself, but certainly so as to the public’ and third persons. If valid as to any person in the world, they should certainly be so as to the appellee, who had, without objection, suffered appellant to acquire- rights upon the faith of their validity. In Gumberts v. Adams Ex. Co., 28 Ind. 181, the court said: “The appellee appeared before .the justice and went to trial without questioning his authority. He was defeated, and then appealed from the judgment to the circuit court, and there, for the first time, set up that the person before whom the proceedings were had was not a justice of the peace. Such a defence can not avail the appellee. In Taylor v. Skrine, Treadway, 696, the court held that the acts of one claiming to be judge, and whose claim rested on an unconstitutional statute, were valid as to the public until the invalidity was authoritatively declared, and the case is expressly approved in Creighton v. Piper, 14 Ind. 182. Analogous principles are laid down in Blackman v. State, 12 Ind. 556 ; Steinback v. State, ex rel., 38 Ind. 483; Feaster v. Woodfill, 23 Ind. 493; Case v. State, 5 Ind. 1. The case last, named is infinitely-stronger than the present, even if it were conceded that the failure to adopt a second resolution determined the right of McGregor to hold the office of city judge.

We think it very plain that as both the act of the Legislature and the resolution of the common council provided that the person elected to the office of judge of the city court should hold until his successor was duly elected and qualified, the incumbent of that office, elected under the resolution of March 12th, 1875, was, at the time the judicial acts complained of were done, an officer de jure. Either this must be so held or we must fly in the face of a long and unbroken line of decisions, ending with the carefully cousidéred case of Elam v. State, ex rel., supra.

Petition overruled.