Oppenheim v. Pittsburgh, Cincinnati & St. Louis Railway Co. , 85 Ind. 471 ( 1882 )

Elliott, J.

John C. McGregor, acting as and claiming to be the judge of the court of the city of Logansport, issued a writ of attachment at the suit of appellant Oppenheim, and in the same proceeding issued a summons against the appellee as garnishee, and on the 13th day of October, 1879, rendered judgment in appellant’s favor against the appellee. This action was instituted by the latter to enjoin the enforcement of that judgment.

McGregor was elected to the office claimed by him on the 4th day of May, 1875. The resolution of the common council directing the election was passed on the 12th day of March of that year, and reads as follows: “ That whereas the city of Logansport has a population of over six thousand inhabitants, it is ordered'that there be elected at the election of city officers to be held on the first Tuesday in May of this year, a city judge, to hold his office for the term of four years, and until his successor shall be elected and qualified as required; by section one of an act to establish courts in cities having a population of six thousand inhabitants.” There was a general election of city officers in May, 1879, but no order was made or notice given for th e election of a city j udge at that election, nor were any votes cast for any candidate for that office.

The contention of appellee is that McGregor ceased to be an incumbent of the office in May, 1879, for the reason that the statute makes the continuance of the office dependent upon the order of the common-council, and that as they had restricted the term to four years, and made no order for its continuance or for an election in 1879, there was no such office in existence after the expiration of the term of four years. The appellants’ position is: McGregor had a legal right to hold the office-until a successor was elected and qualified or the resolution of March 12th, 1875, rescinded.

The general rule is that where the law creates an office, and designates the term, the person elected to fill the office will hold until his successor is elected and qualified, unless there is some express provision to the contrary. Elam v. State, ex rel., 75 Ind. 518; Steinback v. State, ex rel., 38 Ind. 483; Tuley v. State, ex rel., 1 Ind. 500. Where the statute makes the continuance of the office depend upon the orders of a municipal legislature, of course this rule does not apply. The first question in this case is whether the act of 1875 does make the continuance of the office depend upon orders of the common council made as each term of office expRes. The first section of that act reads thus: “ Be it enacted by the General Assembly of the State of Indiana, That the legal voters of any incorporated city, having a population of over six thousand inhabitants, may, at any special election, elect a city judge, if the common council, by proper order duly entered of record, shall have so directed; such judge shall have the qualifications required for judges of the circuit court, and shall have the jurisdiction and powers as in this act is provided, and shall hold his office for the term of four years, and until his successor shall be elected and qualified.”

We are unable to find anything in this statute requiring that the common council shall at the expiration of every four years adopt an order for the continuance of the city court. On the contrary, it is clear that when the court is once established it is to continue unless legally abolished. The provisions made for the duties of the judge and for the means of enforcing his judgments very plainly show that the tribunal was intended to be a permanent one. , The provision in the section quoted, that the person elected shall hold until his successor is elected and qualified is strong, if not controlling, evidence of the legislative intention to make the court, when once brought into existence, as much a permanent one as that of the mayor. There is no reason for requiring an order, establishing or continuing the court, to be made every four years, and certainly no language commanding it. We can conceive of no good purpose that would be subserved by requiring an . order to continue what was at the outset properly established and in its nature continuous and enduring. It can not be reasonably supposed that the Legislature meant to require a re-creation of a tribunal which, once brought into existence, would naturally and of its own inherent strength continue in existence without the assistance of the municipal legislature.

The statute is awkwardly framed, but there is enough in it to show that the Legislature meant to make provision for the establishment of an office connected with and forming part of the governmental organization of municipal corporations of a designated class. -The intention was to provide for the creation and existence of an office, not merely for the election of an officer. A court is created, and this is something more than the judge who presides in it. The court is a fixed and continuing thing, not terminating every four years unless kept in existence by an act-of the municipal council. The office of judge is a distinct and different thing from the officer, and the office may endure although the officer may die or resign.

The resolution of the common council, passed under and in accordance with the statute, contemplates the establishment of a permanent office, for it provides that the person chosen to the office of judge shall- hold for the tei’m provided and until his successor shall be elected and qualified. Taking into consideration the provisions of the statute' and those oí the resolution, it is plain that the office of judge did not cease to exist, four years after McGregor’s election. The city court is a permanent department of the municipal government, and the office of its júdge^ can not be for a period different from that of the court itself, although it may be divided into terms of four years each. It is not one term that ends the office; that ends only with the termination of the court. The term of a judge may cease, but the court as a legal creation will continue. A vacancy in the office of judge does not put an end to the existence of the court.

The effect of the resolution of the common council was to bring the municipality they represented within the provisions of the statute. It does not attempt to do anything different. By ordering the election, the statute was made to apply to the city of Logansport, and the court came into existence under the provisions of that law. The authority conferred by the legislative act is to accept its provisions, not to make other or different ones; so that when the common council by ordering the election brought their municipality within the provisions of the statute, they brought into existence the court provided' for by the Legislature. The common council have no authority to do more than bring the city they represent within the provisions of the act, and this they do by directing an election. When this order is made, the statute governs as to the jurisdiction, character, duty and duration of the court. The order for an election establishes the court, and the court when established exists under and by virtue of the statute. We are to look to the statute, not to the resolution of the common council, for the character, powers and duties of the court. The statute is the organic law of the corporation, and is to the common council what the Constitution of the State is to the Legislature. A municipal council have as little power to change the character and duties of an office prescribed by a legislative enactment as the State Legislature, to change those of an office created and defined by the Constitution of the State. The city court exists by virtue of the statute, and so, also, does the office of its j udge. If the common council had undertaken to violate the paramount law, their action so far as it was a violation of that law would be void. If they had attempted to create some other court than that provided by the statute their action would have been without force. But we do not understand their resolution as making any such attempt. On the contrary, the clause, “ until his successor shall have been elected and qualified,” plainly discloses the intention to obey the statute and bring into existence a permanent court, as it contemplates and requires. Whether they might by ordinance abrogate the office is a question not before us.

The appellee appeared in the city court, filed answer, and, without interposing any objections, suffered judgment. In this court it is contended that the notice issued to the principal defendant was insufficient, and that the entire proceedings were therefore void. The notice itself is not set out in the record, but the judgment of the city court recites that notice of the non-residence of the defendant had been published for more than thirty days before the day set for trial, and, therefore, affirmatively shows some notice. It is settled that proceedings in a court having jurisdiction of the subject-matter of the action can not be collaterally attacked, if it appear that there was some notice, although it is defective. Muncey v. Joest, 74 Ind. 409; Hume v. Conduitt, 76 Ind. 598; McAlpine v. Sweetser,76 Ind. 78; Stout v. Woods, 79 Ind. 108.

It is not necessary for a justice of the peace to copy into-the record the summons, and the same rule must apply to notice of publication or other process issued against the defendant. Taylor v. McClure, 28 Ind. 39; Baldwin v. Webster, 68 Ind. 133; Hume v. Conduitt, supra.

The decision of the city court was made, upon a notice before it, and is the determination of a jurisdictional question, and can not be colláterally impeached. This rule applies to courts of justices of the peace as well as to other inferior judicial tribunals. Reed v. Whitton, 78 Ind. 579; Pressler v. Turner, 57 Ind. 56; Mavity v. Eastridge, 67 Ind. 211.

A garnishee is protected by a judgment of a court of competent jurisdiction, although there maybe some error or irregularity in the proceedings. A judgment by a court not having jurisdiction would not protect him; but there was in this case full jurisdiction of the subject-matter, and a conclusive determination, as against all collateral attacks, of the question of jurisdiction of the person of the principal defendant. The appellee is, therefore, fully protected by the judgment rendered in favor of the appellant Oppenlieim.

Judgment reversed.