
    Smith v. The State on the Relation of Lake, Prosecuting Attorney.
    The law provides that the treasurer of Madison county shall he elected for three years and until his successor is elected and qualified.
    ERROR to the Madison Circuit Court.
    
      Thursday, January 16, 1851.
   Perkins, J.

This was an information filed by the prosecuting attorney of Madison county, in the name of the state, charging Seth Smith with usurping the office of treasurer of said county, and wrongfully holding it to the exclusion of Isaac P. Snelson, who was lawfully entitled to the same.

The parties agreed upon the facts, and, the general issue being filed, submitted the cause to the Court upon the simple question as to which of said two persons, claiming the office, had the legal right to it. The Court found in favor of Snelson, and gave judgment accordingly.

Smith was elected treasurer of said county at the August election, 1847, for three years and till his successor should be elected and qualified, and gave his bond and took the oath of office under said election.

Snelson was elected to said office at the August election, 1850, gave his bond, took the requisite oath, and demanded possession. Possession of the office was denied him.

The question in the case depends entirely upon the construction of statutory provisions.

The R. S. of 1843, contained two sections prescribing the tenure of office of county treasurers; the first, section 18, p. 98, made it for three years from the first Monday in March next succeeding the election, and until a successor, &c.; the second, section 70, p. 192, made it for three years from the time of election, and until, &c.

By an act, approved January 19, 1846, (L. 1846, p. 18,) the former of the above two provisions was expressly repealed. The following act was approved January 21, 1850. (L. 1850, p. 177.) It is entitled, “ an act defining the duties of the treasurer of Madison county as to road tax.”

“ Section 1. Be it enacted by the general assembly of the state of Indiana, that owners of land in Madison county may work out their road tax at the rate of one dollar per day, at any time between the first day of June and first day of May next ensuing.

“ Sec. 2. Should any of the owners of lands in Madison county pay to the treasurer of Madison county the amount of their road tax in cash before they have worked the same out, if at any time before the first day of May next succeeding the payment of said tax, any of said owners of land shall present their road tax receipt under the hand of the supervisor of the proper road district, the said treasurer shall refund in money to said land owner the amount of his road receipt so paid; and section No. 70, of article 4, of chapter 7, of the Revised Statutes of 1843, be, and the same is hereby, repealed, so far as the same refers to the county of Madison.

Sec. 3. This act to take effect and be in force from and after its passage.”

Section 70, repealed by this act, was the latter of the two sections first mentioned in this opinion, which prescribed the tenure of the office of county treasurer; and since its repeal there has been no law in Madison county fixing the term for which a county treasurer should be elected, all former acts upon the subject having been expressly repealed by section 4, p. 1023, R. S., which section is still in force. This fact may render it somewhat difficult, perhaps, for a Court to determine the tenure of office of a treasurer of that county, elected since the repealing act of 1850, and might possibly embarrass us in declaring the consequence to the then incumbent, but for the fact that other statutory provisions were suffered to remain in force in said county, which, we think, sufficiently show that the legislature, by said repeal,'meant neither to prolong nor shorten the time for which he was elected, but to leave it entirely unaffected. Section 74, R. S. p. 193, is as follows:

D. Kilgore, for the plaintiff.

W. March and J. S. Buckles, for the state.

“ Whenever the office of county treasurer shall become vacant by death, removal out of the county, resignation, neglect to give bond, or from any other cause, the board of county commissioners,” &c., “shall forthwith meet and appoint some suitable person to fill such vacancy; and the person so appointed shall,” &c., “ and shall hold his office until the expiration of the term for which his predecessor was elected or appointed, and until,” &c.

Section 4, R. S. p. 122, is as follows:

“ All vacancies which are about to occur in offices, by the expiration of the full term thereof, proper to be supplied at a general election, shall be supplied at the general election next preceding the happening of such vacancies.”

General elections are upon the first Mondays in August. R. S. s. 3, supra. The office of county treasurer is one proper to be filled at such general election. Id. s. 1.

Per Curiam.

The judgment is affirmed with costs,  