State ex rel. Wickens v. Clark
| Citation | 208 Ind. 402,196 N.E. 234 |
| Decision Date | 11 June 1935 |
| Docket Number | No. 26346.,26346. |
| Parties | STATE ex rel. WICKENS, Pros. Atty., etc., v. CLARK. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Action in the form of an information by the State, on the relation of Hubert E. Wickens, prosecuting attorney, etc., against Anson B. Clark. From a judgment sustaining a demurrer to the information, relator appeals.
Affirmed.
Appeal from Decatur Circuit Court; John W. Craig, Judge.
Hubert Wickens, Thos. E. Davidson, and R. B. Rolfes, all of Greensburg, for appellant.
Tremain & Turner and John W. Goddard, all of Greensburg, for appellee.
Appellant relator brought an action in the form of an information under section 3-2001,1 Burns' Ind. Ann. St. 1933 () against Anson B. Clark, appellee, alleging that Clark ‘was appointed Superintendent of the County Asylum’ of Decatur county; that ‘he took possession of said office and has ever since held and exercised said office without any authority or right other than said appointment,’ and that ‘at the time of said appointment he was not an elector of said county and had not been an inhabitant thereof for one year preceding said appointment, as provided by the Constitution of the State of Indiana.’
A demurrer was filed to the information on the ground that it did not state facts sufficient to constitute a cause of action, and the trial court sustained the demurrer. Relator refused to plead further and judgment was rendered against him. The sustaining of the demurrer is the sole error assigned on this appeal.
Appellee, defendant below, contends that the action of the trial court in sustaining the demurrer was correct; that the information filed by relator was insufficient (1) because ‘it fails to set out the name of the person entitled to said office’ in compliance with section 3-2005, Burns', etc., 1933,2 and (2) because the superintendent of the county asylum, whose appointment is provided for by section 52-204, Burns', etc., [208 Ind. 404]1933,3 is not a ‘county officer’ within the meaning of sections 34 and 4,5 art. 6, of the Indiana Constitution and, consequently, it is not necessary for such superintendent either to be an elector of the county at the time of his appointment or to have been an inhabitant of the county ‘during one year prior’ to the time fo such appointment.
We shall first consider appellee's contention that the superintendent of the county asylum is not a county officer within the meaning of sections 3 and 4, art. 6, of the Indiana Constitution.
The establishment of county asylums for the poor was authorized by section 3, art. 9, of the Indiana Constitution, which reads as follows: ‘The county boards shall have power to provide farms, as an asylum for those persons, who, by reason of age, infirmity, or other misfortune, have claims upon the sympathies and aid of society.’
The General Assembly of 1852 gave effect to the foregoing constitutional provision by enacting the following statute: ‘It shall be lawful for the board of county commissioners of any county in this state, whenever it may deem it advisable, to purchase a tract of land in the name of such county, and thereon to build, establish and organize an asylum for the poor, and to employ some humane and responsible person, resident in such county, to take charge of the same, upon such terms and under such restrictions as the board shall consider most advantageous for the interests of the county, who shall be called the ‘superintendent of the county asylum.’ * * *' Section 52-201, Burns', etc., 1933, 1 R. S. 1852, c. 81, § 25, p. 401.
The bond of such superintendent was fixed at $500. The superintendent was required semiannually to make a ‘detailed report in writing’ concerning each pauper admitted, and the board of county commissioners was required to make an annual inspection of the asylum. In 1899, by an act repealing all laws or parts of laws in conflict, the General Assembly provided that the board of county commissioners should ‘appoint a Superintendent of the County Asylum, who shall serve for two years'; that ‘an appointing a Superintendent of the Poor Asylum, the Commissioners shall select a reputable citizen of good moral character, kind and humane disposition, good executive ability, who has had a good common school education and is a skilled and experienced farmer,’ and that ‘no considerations other than character, competence and fitness shall be allowed to actuate the Commissioners in selecting, continuing or discharging any Superintendent or other officer.’ (Acts 1899, c. 76, § 1). The board of commissioners was authorized to remove such superintendentfor cause. The requirement of the act of 1852 that the person employed as superintendent be a resident of the county was omitted from the 1899 act. Other sections of the act fixed the duties of the board of commissioners6 and of the superintendent,7 and made provision for the purchase of supplies of food and material for the use of the asylum and farm. In 1913 the General Assembly (Acts 1913, c. 360), by amendment of certain provisions of the act of 1899, increased the term of such superintendent from two to four years, authorized an appeal by the superintendent to circuit court from an action of the board of commissioners dismissing him, required the board of commissioners to make an inspection of the asylum every three months, and required the county council to appropriate and the commissioners to allow for the necessary help and equipment for the asylum, and tools, implements, live stock, etc., for the farm.
An examination of the duties imposed by statute upon the board of county commissioners clearly indicates that the General Assembly intended to define and make effective the constitutionally conferred power of such boards, and to provide a proper and uniform method of exercising such power. The board of county commissioners retains supervision and control over the county poor asylum and county farm and is authorized to appoint a superintendent as the agent of the board in the management of such asylum and farm. In providing for, and in exercising supervision and control over, an asylum and farm, and in appointing a superintendent therefor, the board of county commissioners performs a county governmental function and acts as an official board. But an examination of the duties imposed by statute upon the superintendentof the county asylum indicates that he is not an ‘officer’ of the county, but is an employee of the county, appointed and controlled by the board of commissioners, though entitled to certain privileges as respects form of employment and hearing and appeal in case of removal. While he is required to execute a bond, he takes no oath of office,8 nor does he exercise any of the sovereign power of the state.9 The superintendent is the general manager of the asylum and county farm under terms fixed by the board of county commissioners, and in the performance of his duties he is always subject to the control of the board. The superintendent is the executive agent of the board of commissioners, whom the board, under legislative authority, has employed to perform certain services which must be performed to enable the board of commissioners fully to discharge its duties as the official governmental power of the county.10 In our opinion the superintendent of the county asylum is not a county officer within the meaning of sections 3 and 4, art. 6, of the Indiana Constitution.
Appellant cites the case of Lake County v. Neuenfeldt (1922) 78 Ind. App. 566, 136 N. E. 580, as holding that the superintendent of the county asylum is a county officer. A correct result was reached in that case, but in so far as the reasoning rests upon the assumption that the superintendent of the county asylum is a county officer it is hereby modified.
Inasmuch as we hold that the superintendent of the county asylum is not a county officer within the meaning of sections 3 and 4, art. 6 of the Indiana Constitution, the information is insufficient on its merits and it is not necessary to decide whether it is formally defective by reason of the failure to include therein the name of the person entitled to the position of superintendent of the county asylum.
Judgment affirmed.
TREMAIN, J., not participating.
1. ‘An information may be filed against any person or corporation in the following cases: (1) When any person shall usurp, intrude into, or unlawfully hold or exercise any public office or any franchise within this state, or any office in any corporation created by the authority of this state. * * *’
2. ‘Whenever an information shall be filed against a person for usurping an office by the prosecuting attorney, he shall...
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Ulrich v. Beatty, 1
...office. Every copying clerk or janitor of a public building is not necessarily a public officer.' See also State ex rel. Wickens v. Clark (1935), 208 Ind. 402, 196 N.E. 234. I think it is significant to point out that the deputy registration personnel appointed under the provisions of Ch. 2......
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