The State, ex rel. Worrell, v. Carr, Auditor.

No. 15,912.

THE STATE, EX REL. WORRELL, v. CARR, AUDITOR.

OFFICE AND OFFICER.-Officers de facto and de jure.-Salary.-Where a de facto officer assumes to retain the office after the qualification of the officer de jure and continues to discharge its duties, a payment of salary to such de facto officer by a disbursing officer of the State, with full knowledge of the invalidity of the de facto officer's title, is no defence to an action for the salary by the officer de jure, who has also discharged the duties of the office. APPROPRIATION.--For Salary.-Constitutional Law.--In an act appropriating money to pay the salary and expenses of a certain office, a provision that it shall be paid to a certain person named and none other, is unconstitutional and void as attempting to adjudicate as to who is the legal officer entitled to the salary.

From the Marion Circuit Court.

A. J. Beveridge, L. T. Michener, A. C. Harris, J. H. Gillett, F. H. Blackledge, L. M. Campbell and E. G. Hogate, for appellant.

A. G. Smith, Attorney General, L. O. Bailey and P. Daniels, for appellee.

OLDS, J.-The relator filed his petition in this case, asking that a writ of mandate issue against the appellee, the auditor of State, compelling him to draw his warrant on the treasurer of State in favor of the relator for the sum of $2,500, the amount alleged to be due the relator as his salary as chief of the Indiana Bureau of Statistics.

Issues were joined on the complaint, and a trial had. There were demurrers filed to the paragraphs of answer, and overruled, and exceptions reserved. Errors are assigned on these rulings. On proper request there was a special finding of facts and conclusions of law stated by the court. The conclusions of law were excepted to by the appellant, and a proper assignment of error made thereon.

The questions presented and discussed relate to the right of the relator to the salary alleged to be due him, and his

The State, ex rel. Worrell, v. Carr, Auditor.

right to have a writ of mandate issue compelling the auditor of State, the appellee, to draw his warrant on the treasurer of State in favor of the relator for the sum due him. No question is presented and discussed as to the regularity of the proceedings, or as to the proper parties being before the

court.

The facts found by the court show that on the 31st day of May, 1889, the relator, John Worrell, was appointed and commissioned chief of the Indiana Bureau of Statistics, by Alvin P. Hovey, Governor of the State of Indiana; that at the time of his appointment he was a resident voter of the State, of legal age, and in every way eligible to hold the office, and on the day of his appointment he took the oath of office, which was indorsed on the back of his commission, and filed a copy thereof in the office of the secretary of State, and in every way qualified as such officer, and on the same day appellee was notified of the relator's appointment and qualification; that after the relator's appointment he applied for office room in the State Capitol, to be occupied by him as the chief of the Indiana Bureau of Statistics, and was assigned a room for that purpose by the auditor of State, which room was independent and removed from a room occupied by William A. Peelle, Jr., and said relator, Worrell, has been doing work and performing the duties of the chief of the bureau of statistics, independent of work performed by said Peelle, from May 31st, 1889, to November 19th, 1890.

At the time relator Worrell was appointed, commissioned, and qualified as chief of the Indiana Bureau of Statistics, said office was held and occupied, and the duties thereof were being performed, by one William A. Peelle, Jr., a person who was eligible to fill the office, who held said office under and by virtue of an election thereto by the Fifty-third, Fiftyfourth, and Fifty-sixth General Assemblies of the State of Indiana, and was commissioned under said first two elections. by Governors Porter and Gray, which commissions set out the elections and certified thereto; that Governor Hovey re

The State, ex rel. Worrell, v. Carr, Auditor.

fused to issue to said Peelle a commission under the election of said Peelle to said office by the Fifty-sixth General Assembly; that Peelle claimed and had no other title to said office, except as herein above found, said office being vacant except as so occupied and claimed by Peelle and Worrell.

The findings further show that Worrell demanded of Peelle possession of the office immediately after his appointment and qualification, and Peelle refused to surrender it, and that Worrell immediately commenced quo warranto proceedings against Peelle for the possession of the office, which were twice appealed to the Supreme Court, and reversed, and were not disposed of until after the State election in 1890, at which election Peelle was duly elected to said office, and was commissioned by the Governor, and qualified as such officer, and on Peelle's motion, supported by proof of his election, the quo warranto proceedings were dismissed; that during all of the time Peelle continued to occupy the appartments as he had previous to Worrell's appointment, and retained the archives of the office, collected information and made records the same as he had done prior to Worrell's appointment; that the salary of the chief of the bureau of statistics is $1,800 per year, and there is money in the treasury of the State of Indiana subject to be paid out on warrants of the auditor of State, for the payment of the salary of said chief; that relator has, prior to the commencement of this suit, demanded of the appellee that he draw a warrant in relator's favor for this salary, and since November 4, 1890, he has made demand upon the appellee that he draw such warrant for the sum of $2,550, said sum to be paid to him as salary from May 31st, 1889, to November 1st, 1890, and presented itemized and qualified bills therefor, as required by law, and appellee has refused to draw such warrant; that on October 31st, 1889, appellee drew his warrant on the treasurer of State in favor of William A. Peelle, Jr., demand having been made by said Peelle for the sum of $750 as salary, or by way of compensation as chief of the Indiana Bu

The State, ex rel. Worrell, v. Carr, Auditor.

reau of Statistics, from May 31, 1889, to November 1, 1889; otherwise said appellee has not drawn his warrant on the treasurer of State in favor of any person for the salary of said office.

There is a further finding in regard to the provision of the laws appropriating the amount of the salary of such of fice, and a provision that it should be paid to Peelle as such chief.

On the foregoing facts the court stated, as a conclusion of law, that relator was not entitled to a writ of mandate, as prayed in his petition.

The act of the Legislature, approved March 29th, 1879, creating a State bureau of statistics, made it the duty of the bureau to collect, systematize, tabulate, and present in biennial reports, statistical information and details relating to agriculture, manufacturing, mining, commerce, education, labor, social and sanitary condition, vital statistics, marriages and deaths, and the permanent property of the productive industry of the people of the State. The first section of this act provides that the department is established for the collection and dissemination of information hereinafter provided, by biennial printed reports to the Governor and Legislature of the State, and it provides for the appointment of the chief by the Governor. Acts of 1879, p. 193.

Some amendments have been made to this act. By an act passed in 1883 (Elliott's Supp., section 1852), an attempt was made to change the method of selecting the chief, and provide for his election by the General Assembly, and by an act in 1889 (Elliott's Supp., sections 1854 to 1862, inclusive), some additional duties were added, and it was made the duty of the chief to transmit one copy of the biennial report to each county and State officer. The duty of the bureau is to gather such information as is required by the law, systematize it, and publish it in proper printed reports, and to disseminate such information by printed reports of all such information collected, and distributing them to the Gov

The State, ex rel. Worrell, v. Carr, Auditor.

ernor of the State, the General Assembly, and to each State and county officer of the State. There is no law providing that any public records shall be kept of such information save the printed reports. The benefits to be derived on account of such a bureau is through the publication and distribution of the biennial reports. It is provided that headquarters for the bureau shall be furnished by the State.

The findings of fact show that the relator, Worrell, had been assigned and provided office-rooms by the auditor of State in the State-house. There was nothing to prevent him from discharging the duties of the office, collecting and systematizing the information contemplated by the law, and publishing the same in printed reports, and distributing them with the same efficiency and to the same extent as if Peelle had surrendered the apartments occupied by him previous to that time; and the findings of fact show that Worrell did discharge the duties of the office in compliance with the law. It is true, there is a finding that Peelle was in possession of the archives and records of the office. What the archives and records were that he was in possession of, the findings do not show. The law makes no provision whereby such officer is required to keep any public records or anything else to be kept in connection with and belonging to the office, there to remain as the property of the State, which the outgoing officer would be required to turn over to his successor. The findings of fact show that Worrell was eligible to the office; that he was duly appointed, commissioned, and qualified as such officer; that the appellee, the auditor of State, had notice at the time of his appointment and qualification; that he made application to the auditor of State for apartments, and the auditor of State assigned him apartments for headquarters of the bureau; and that he occupied them, and discharged the duties of the office. It is further found that Peelle retained the apartments formerly occupied by him, and continued to act, or assumed to act, as chief, and collect information.