Featherngill v. State, ex rel. Wright

Decision Date25 October 1904
Docket Number5,034
Citation72 N.E. 181,33 Ind.App. 683
PartiesFEATHERNGILL v. STATE, EX REL. WRIGHT
CourtIndiana Appellate Court

From Johnson Circuit Court; Marshall Hacker, Special Judge.

Action by the State of Indiana, on the relation of Everett Wright against Thomas Featherngill. From a judgment for relator defendant appeals.

Reversed.

Will Featherngill, R. M. Miller and H. C. Barnett, for appellant.

W. E Deupree and L. E. Slack, for appellee.

OPINION

ROBY, J.

Action by the State of Indiana, on the relation of Everett Wright v. Thomas Featherngill.

The complaint is in one paragraph. Its averments, in substance, are that appellant was duly appointed truant officer of Johnson county, and took possession of and continued to perform the duties of said office; that on May 6, 1901, the board of truancy of said county met and proceeded to appoint a truant officer for said county; that no appointment was made, and said meeting adjourned; "that on the 3d day of June, 1901, a majority of the county board of education, being a majority of the township trustees and presidents of the school trustees of the incorporated cities and towns of said county constituting said board of education, met as a board of truancy, and proceeded to elect by ballot a truant officer for said county; that the appellee herein received a majority of all votes taken or cast, and was then and there duly and legally elected truant officer in and for said Johnson county; that appellant, since said 3d day of June, 1901, has illegally and wrongfully held said office, and is illegally performing the duties thereof; that appellee is entitled to perform the duties of said office and to receive the salary therefor, and demands judgment for the same."

A demurrer for want of facts was overruled, and exception reserved, and error assigned upon such ruling. The issue was formed by a general denial, trial and finding for the relator, and it was adjudged that appellant be ousted and removed from said office, and that he be prohibited from further exercising and performing the duties thereof, and that appellee recover costs.

Appellee makes the point that the transcript does not disclose that any precipe was filed, and that, in its absence, there is nothing for our consideration. If there was no written precipe directing the clerk to certify a portion of the record, it was his duty to make a complete transcript of the proceedings. § 661 Burns 1901; Chicago, etc., R. Co. v. Cunningham, 33 Ind.App. 145, 69 N.E. 304; Barnes v. Pelham, 18 Ind.App. 166, 47 N.E. 648. This was the law prior to the act of March 9, 1903, and was not changed thereby. Acts 1903, p. 338; Rutherford v. Prudential Ins. Co., 32 Ind.App. 423.

Section two of "an act concerning the education of children," approved March 11, 1901 (Acts 1901, p. 470, § 6033b Burns 1901), contains a provision under which such officer is appointed. It is as follows: "The county board of education of each county shall constitute a board of truancy whose duty it shall be to appoint on the first Monday in May of each year one truant officer in each county." By section four his compensation is fixed at $ 2 for each day of actual service. Board, etc., v. Marr, 22 Ind.App. 539, 54 N.E. 402. Following that part of section two above quoted, and carried into section three, his duties are specified. The power conferred upon him, while it is confined within narrow limits, is a part of the power possessed by the State and inherent to sovereignty. His duties are not a matter of contract. The position carries with it a salary. The tenure is fixed and certain. The term "officer" is applied to him in the act, and he must be regarded, as he evidently was by the legislature, as a public officer. Mechem, Pub. Officers, chap. 1. It is therefore incumbent upon the truant officer, before he enters upon his official duty, to take an oath to support the Constitution of the United States and the Constitution of the State of Indiana, and faithfully to discharge the duties of such office. § 7533 Burns 1901.

The provision that the appointment shall be made on the first Monday in May is directory, and does not preclude a subsequent appointment. The selection of a county...

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5 cases
  • State ex rel. White v. Scott
    • United States
    • Supreme Court of Indiana
    • December 9, 1908
    ...R. A. 829;Landes v. State, 160 Ind. 479, 486, 67 N. E. 189;Morrison v. Railroad Co., 166 Ind. 511, 521, 76 N. E. 961;Featherngill v. State, 33 Ind. App. 686, 72 N. E. 181. In the statute there are no negative words, and no words limiting the power to elect a superintendent to the first Mond......
  • Abney v. Indiana Union Traction Company
    • United States
    • Court of Appeals of Indiana
    • January 15, 1908
    ...... any state of facts provable under the issues. Adams. v. Vanderbeck (1897), 148 Ind. ...Co. (1903), 31 Ind.App. 258, 67 N.E. 704; Harrah v. State, ex rel. (1906), 38 Ind.App. 495, 76. N.E. 443. . .          The. ...§ 690 Burns 1908, §. 649 R. S. 1881; Featherngill v. State,. ex rel. (1904), 33 Ind.App. 683, 72 N.E. 181;. Rutherford v. ......
  • Taylor v. School Town of Petersburg
    • United States
    • Court of Appeals of Indiana
    • October 25, 1904
    ...... Petersburg, in said county and [33 Ind.App. 676] state, and. had been employed. [72 N.E. 160] . as a teacher in the schools ... Co., 146 Ind. 466, 475, 35 L. R. A. 686, 58 Am. St. 359;. State, ex rel., v. Board, etc., 147 Ind. 235, 46 N.E. 525. . . ......
  • Wilkie v. Reynolds
    • United States
    • Court of Appeals of Indiana
    • October 27, 1904
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