State v. McRoberts
| Decision Date | 30 October 1934 |
| Docket Number | 26422 |
| Citation | 192 N.E. 428,207 Ind. 293 |
| Parties | STATE v. McROBERTS et al |
| Court | Indiana Supreme Court |
1. COUNTIES---County Council---Removal from Office---Refusal to Make Appropriation---Nonfeasance.---A proceeding under 12139 Burns 1926 (49,836, Burns 1933, 13168, Baldwin's 1934) to remove county councilmen from office for failure to make appropriation for traveling expenses of county superintendent, held based on a nonfeasance rather than a malfeasance. p. 298.
2. COUNTIES---County Council---Removal from Office---"Malfeasance Nonfeasance."---"Malfeasance" is the doing of an act wholly wrongful and unlawful, while "nonfeasance" is an omission to perform a required duty at all or total neglect. p. 298.
3. COUNTIES---County Council---Removal from Office---Refusal to Make Appropriation.---Members of county council could not be removed from office under 12139, Burns 1926 (49--836, Burns 1933, 13168, Baldwin's 1934) for mere failure to appropriate traveling expenses for county superintendent in the absence of any showing of bad-faith or fraud or that expenses had been incurred. p. 299.
4. COUNTIES---County Council---Removal from Office---Presumptions.---Where breach of but one duty is charged in proceeding to remove county councilmen from office, the presumption is that all other duties were properly performed. p. 299.
5. EVIDENCE---Judicial Notice---Conditions in Financial Depression---Demand for Reduction of Public Expenditures.---Supreme Court judicially knows that during financial depression taxpayers were demanding reduction of public expenditures to minimum. p. 299.
6. COUNTIES---County Council---Removal from Office---Procedure---Demurrer to Accusation.---Filing a demurrer to the accusation in a proceeding to remove county councilmen from office held proper practice. p. 300.
Petition by the State for citation of D. C. McRoberts and others, as county councilmen, to show cause why they should not be removed from office. From a judgment for respondents, the State appealed. Affirmed.
Clarence C. Rumer and Arthur S. Wilson, both of Princeton and Philip Lutz, Jr., of Indianapolis, for the State.
The appellant brought this action against the appellees, as appellants allege in its brief, for citation for malfeasance in office, to show cause why they should not be deprived of the office of county councilmen of Gibson county, Ind.
There was one paragraph of verified petition. The appellees filed a demurrer to the petition which was sustained.
The errors relied upon for reversal are as follows:
(1) The court erred in sustaining the demurrer of the appellees, and each of them, to the petition or verified affidavit of accusations.
(2) The court erred in sustaining appellees' motion for judgment on the pleadings.
The verified petition, omitting caption, is as follows:
'The undersigned affiant, your petitioner, would respectfully represent and show to the Court that heretofore towit: On the 4th day of November, 1930, the aforesaid defendants, D. C. McRoberts, whose true given name is unknown to the affiant, George W. Reed, Frank J. Market, John Fischer, J. Fred Gray, and Thomas B. Nash are now and have been all during the times herein mentioned the duly elected, qualified, and acting County Council of Gibson County of the State of Indiana; that one Jack P. Blair was also on said date duly elected as a member of said council, and has since said date resigned his said office, and is not a member of said County Council; that thereafter one Dr. John W. Williams was appointed and qualified to act and fill the vacancy of the said Blair; that your petitioner would further represent and show to the Honorable Court that he is the duly elected and qualified, and acting County Superintendent of Schools of Gibson County, Indiana; that he was elected as provided by law on the 3rd day of June, 1929, which term was for the period of four years, said term to begin on the 16th day of August 1933; that he was re-elected as said county superintendent for a like term; that pursuant to an act in full force and effect since the 1st day of March, 1921, which act so far as applicable to this cause is in the words and figures following, towit: Acts 1921, c. 54, pp. 132 and 133, § 3. The traveling expenses of the County Superintendent, not exceeding fifty dollars ($ 50.00) per month, three hundred dollars ($ 300.00) in any school year incurred while in the discharge of his official duties, shall be paid by the county treasurer upon a warrant, issued by the county auditor. The county superintendent shall make affidavit to the county auditor before such warrant shall be issued from the county auditor to the county treasurer. * * * Section 5. The County Council shall appropriate and the county Commissioners shall allow the necessary funds to carry out the provisions of this act. * * *
'Your petitioner as such county superintendent of said schools filed his estimate pertaining and necessary to his said office of expenses for the next ensuing school year as required by law, on the 22nd day of July, 1932; that among the items of expense contained and set forth in said estimate pertaining to his said office as County Superintendent, was the following item of expense, towit: 'Item 201 D. Traveling expenses ..... $ 300.00' that pursuant to notice duly given as required by law said defendants herein as members of said county council met in session as such county council on the 20th day of September, 1932, to consider the estimates of expenditures of the various county officers, including that of the County Superintendent, and make all necessary appropriations therefore as required by law; that although said item of traveling expense above set forth was submitted to said members of said County Council in due form for their consideration at said meeting in order that said council members might appropriate the necessary funds to meet said item of expense contained in said County Superintendent's Budget for the year 1933 said members of said County Council refused and neglected to perform the official duty pertaining to the office of each of said members of said council, in this, towit:
'1. That said named members of said council and each of them, refused and neglected to appropriate money and funds for the item of traveling expense in the sum of $ 300.00 for said County Superintendent of Schools of said Gibson County as set in his said estimate, or Budget for the year 1933 so filed and submitted to said members of said council, as provided by law.
'2. That said members herein above mentioned failed,...
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