1906-1908 Ind. Op. Att'y Gen. p. 127

not be deemed lucrative; and, provided, also, That coun- ties containing less than one thousand polls may confer the office of clerk, recorder and auditor, or any two of said offices, upon the same person." It was held by our supreme court in the case of Bishop v. State ex rel., 149 Ind. 223, that the term "deputy postmaster" used in the above section of our constitution means postmaster. It has also been determined by our supreme court that the office of school trustee is a lucrative office, and that under the pro- visions of section 9 of article 2 of our constitution a person could not hold such an office and the office of trustee of the institute for the education of the deaf and dumb at the same time, owing to the fact that both offices are lucrative. Chambers v. the State ex rel, Barnard, Pros. Atty., 127 Ind. 365. If the salary of office of postmaster exceeds ninety dollars per year, such office is a lucrative office. It is my opinion, therefore, that one person cannot legally serve as postmaster and member of the school board at the same time, provided that the salary of postmaster exceeds ninety dollars per year. It is my opinion that when a member of the school board accepts an appointment as postmaster and qualifies as such, that he thereby vacates the office of school trustee. It does not follow, however, that the acts of the school board thereafter in which he partiepates are illegal. Having been elected and acting as a member of the board at the time of the acceptance of the office of postmaster, although not longer entitled to hold the first-named office, he would still be a de facto officer, and though subject to be ousted from the office, his acts while yet in office in my opinion would be legal. SCHOOL TRUSTEE-RESIDENCE A QUESTION OF INTENTION. March 22, 1907. Hon. Fassett A. Cotton, Superintendent of Public Instruction, In- dianapolis, Indiana: Dear Sir-I am in receipt of your communication of March 20th in which you ask for my opinion as to the right of T. E. Elbert to hold the office of school trustee of Laconia school corporation, and you quote from his letter to you, in which he says: "I was appointed trustee of Laconia (Ind.) school cor- poration for a term of three years beginning August, 1906; was appointed treasurer and filed my bond with the auditor. I am a married man; my family being in the town at my home at present and have been there for past eight years. I left there about sixty days ago for the purpose of attend- ing Vories business college for a short time, expecting to return about April 10th, and taking up my work again in my home town. The town trustees have declared my office vacant and have appointed a successor to my office. Can I hold my place?" Assuming that the facts stated in this letter are correctly stated, it is my opinion that there was no vacancy in said office, and hence the assumed appointment of another trustee as the suc- cessor of Mr. Elbert was vQid and of no force. The town trustees could only appoint a member of the school board when a vacancy should occur, and the temporary absence of a trustee from home did not create a vacancy. It is true that a public officer may aban- don his office, and having once abandoned it and removed from the town and county with the intention to change his residence, such officer could not again resume his office. Relender v. the State ex rel. Utz, Pros. Atty., 149 Ind. 283. But it requires an intention to abandon an office, and where a person leaves his place of residence temporarily on business, or otherwise, but with the intention of returning, he does not thereby lose his domicile or his office. Again, as a general rule, where a man is the head of a family and is a housekeeper, the domicile of the family is presumed to be his legal place of residence. - Yonkey et al. v. the State ex rel. Cornelison, 27 Ind. 236. "When an office has been conferred on one legally eligi- ble, and has been accepted, no vacancy can be said to exist therein until the term of service and right to hold as fixed by the law expires, or until the death, resignation or removal of the person elected or appointed. (Johnston v. Wilson, 2 N. H. 202, 99 Am. Dec. 50.) "Of course it is not to be understood that an office can not become vacant, as respects the appointing power, so long as it remains in the actual physical occupancy of some one who asserts a claim thereto. An office is legally vacant unless the occupant has an unexpired right or title, founded in the constitution or law, precisely as a house is. vacant of a lawful tenant in case the lessee, without any provision authorizing him to hold over, refuses to surrender at the expiration of his term." The State ex rel. Carson v. Harrison, 113 Ind. 434. It was held in the case of the State cx rel. Cornwell v. Allen, 21 Ind. 516, that an office might be vacated by abandonment and that the existence of a vacancy would depend upon all the facts and circumstances attending the same. In the case of State ex rel. v. Jones, 19 Ind. 356, Perkins, judge, in pronouncing the opinion of the court, said: "We think the following propositions are deducible from the judicial decisions of the supreme court of Indiana: "1. Where it appears, prinm f ie, that awts or events have occurred subjecting an office to a judicial declaration of being vacant, the authority authorized to fill such va- cancy, supposing the office to be vacant, may proceed, before procuring a judicial declaration of the vacancy, and appoint or elect, according to the forms of law, a person to fill such office; but if, when such person attempts to take possession of the office, he is resisted by the previous incumbent, he will be compelled to try the right, and oust such incumbent, or fail to oust him, in some mode prescribed by law. "2. If such elected or appointed person finds the office, in fact, vacant, and can take possesion uncontested, by the former incumbent, he may do so, and so long as he remains in such possession, he will be an officer de facto; and should the former incumbent never appear to contest his right, he will be regarded as having been an officer de facto and de jure; but should such former incumbent appear, after pos- session has been taken against him, the burden of proceeding to oust the then actual incumbent will fall upon him; and if in such proceeding it is made to appear that facts had occurred before the appointment or election justifying a judicial declaration of a vancancy, it will be then declared to have existed, and the election or appointment will be held to have been valid." Baker et al. v. Wambaugh, 99 Ind. 312. While from above quoted authorities it is shown that whether there is an abandonment of an office must depend upon the particu- lar facts and circumstances surrounding each particular case, it is [9-19395l my opinion, taking the facts stated in Mr. Elbert's letter as true, that he has not abandoned the office of school trustee, and hence has a right to hold such office, the appointment of his successor by the town trustees to the contrary notwithstanding. If it may be held that a temporary absence of sixty days vacates an office, even though there was no intention to abandon the office, it might be held with equal reasoning that a much shorter absence should va- cate such office. It is a question of intention, and this intention must be shown by the facts and circumstances surrounding the absence. CUSTODIAN-AUTHORITY LIMITED TO REPAIRS. March 22, 1907. Hon. 0. A. Baker, Custodian of Public Buildings and Grounds, Indianapolis, Indiana: Dear Sir-In answer to your inquiry as to whether you would be authorized without a specific appropriation, or authority, other than that given you under the statute defining your duties, to build and construct a new steel vault in the state house or capitol building, for the use of the treasurer of state, and submitting the architect's estimate of the cost of the construction of same, amount- ing to $2,751.00, I beg leave to advise that section 7783, Burns' An- notated Indiana Statutes, Revision 1901, defining your duties with reference to the matter inquired about, reads as follows: "The custodian is hereby empowered, and it shall be his duty, to purchase from time to time such needed supplies as are required, under the orders of the auditor of state, and to furnish, superintend and cause such repairs to be made to the capitol or other property in his care as shall be deemed necessary to its protection, subject to the approval of the auditor of state." In the appropriation act passed by the general assembly of 1907, relating to the same matter, appears this language: "Repair and supply fund, $5,000." Unless the section of the statute above quoted, or the language quoted from the appropriation act, author- izes the building of this vault, it is apparent that you are without authority to construct it. It is perfectly plain that such authority is not authorized by the language quoted giving you power to pur- chase supplies, and unless your duty to -make repairs authorizes it, you are without authority,