State v. Minton , 49 Iowa 591 ( 1878 )

Day, J.

I. It is urged that there was error in overruling the demurrer. The exception taken to this ruling was waived by filing the answer.

1. qtto -vvarranmentpPoint" . II. It is claimed by appellant that if the relator was acting as treasurer by appointment of the board of directors, no question of title could arise to the office to be _ . .. . Renamed by quo toarrcmto, ana that the remedy of the relator is by some other proceeding. It is urged that no question of title could arise if all that the relator claims is true, because, as between the relator and the defendant, the board, in their action, settled the question of title. It appears from the record, however, that the defendant claims that he, by the act of the board of supervisors, is the duly appointed treasurer of said township, and entitled to discharge the functions of the office, and that, under such claim, he refuses to deliver to the relator the books, papers, moneys and effects of said office. It does not appear from the record that the relator is acting as the treasurer of the township. Upon the contrary the petition alleges that the defendant is unlawfully exercising and has usurped the office, in that he fails to deliver over the books, papers, moneys and effects, and claims to be and act as the treasurer of said township. The answer does not deny this, but claims that defendant was, on the 17th day of September, 1877, duly and legally re-elected to the office of treasurer. We think the proceeding instituted is the proper one to determine whether the defendant has a right to exercise the functions of the office, and retain the moneys and effects pertaining to it. See Code, §§ 3345, 3351.

2 bond : acmont!6puLiic officer. III. It is insisted that the record discloses facts sufficient to show the action of the board in appointing the relator to have keen without color of right or authority of law. It appears from the evidence that on the 17th day of September, 1877, the defendant was the treasurer of said district township. On that day, at a regular meeting of the board of directors, action was taken which the records of the board show to be as follows: “On motion we now proceed to elect a secretary by informal ballot. Donald Maul having received all the ballots cast was declared duly elected secretary for the ensuing year. Carried. On motion, we now proceed to elect a treasurer by informal ballot. Jacob Minton, 2 votes; Hiram Smith, 1 vote; J. M. Hall, 1 vote. On motion, by formal ballot, Hiram Smith, having received a majority of all the ballots cast, was declared duly elected treasurer 'for the ensuing year. ”

The next action of the board was at a special meeting, September 28, 1877, of which the record is as follows: “On motion, the bond of Jacob Minton as treasurer be not approved nor accepted by tlie board. Carried. On motion, the bond of Hiram Smith as treasurer be approved. Carried. ”

A special meeting was held November 16,1877, of which the record is as follows: “On motion we proceed.to elect a treasurer by ballot. Hiram Smith, having received all the ballots cast, was declared duly elected treasurer for the ensuing year. On motion, the bond of Hiram Smith be accepted and approved by the board. Carried. ”

The reason of electing Smith a second time as treasurer is not shown. Perhaps it was because of defendant insisting that he was elected, and claiming the right to discharge the duties of the office. The reason, however, for this second election is not material. The bond of Pliram Smith was executed on the 28th day of September, 1877, and on the same day was filed with the board. The bond is regular in form, but was acknowledged and sworn to before the township clerk of the township of Eaglan.

A special meeting of the board was held January 28, 1878, at which the following proceedings were had: “Hiram Smith tendered his resignation, which was accepted. On motion we now appoint Charles Gilmore treasurer of district township of Eaglan. ”

On February 4,1878, a meeting was held, .and the following record was made on that and the following day: “On motion adjourned to meet February 5th. Met pursuant to adjournment in sub-district No. 2, at school-house. On motion bond of Charles Gilmore, as treasurer, be accepted and approved. Carried.”

We understand the position of appellant to be, although it does noli very clearly appear from the argument, that he was elected by a plurality vote at the meeting of September 17, 1877, and became thereby entitled to the office. But the vote which gave defendant a plurality was a mere informal vote. The first formal vote gave Smith a majority, and duly elected him treasurer. It is further claimed that, as the bond of Hiram Smith.was acknowledged and sworn to before the township clerk of Raglan township, Smith did not legally qualify, and that the defendant, being the incumbent of the office, held over. We think, however, that the acknowledging and swearing to the bond before the township clerk was, at the most, a mere irregularity, and that it was cured when the board of directors approved the bond and caused it to be filed.

The record discloses no error.

Affirmed.