Sweigart v. State, 26949.

• Citation: 12 N.E.2d 134,213 Ind. 157
• Decision Date: 11 January 1938
• Docket Number: No. 26949.,26949.
• Parties: SWEIGART v. STATE.
• Court: Supreme Court of Indiana

213 Ind. 157
12 N.E.2d 134

SWEIGART
v.
STATE.

No. 26949.

Supreme Court of Indiana.

Jan. 11, 1938.

Action by the State of Indiana against George W. Sweigart to recover a penalty for the unlawful issuance of a marriage license, and for a temporary and final injunction. From an order granting a temporary injunction, the defendant appeals.

Affirmed.

[12 N.E.2d 136]

Appeal from Lake Circuit Court; T. Jos. Sullivan, Judge.
Geo. E. Hershman and Samuel F. Sirois, Jr., both of Crown Point, for appellant.

Fred A. Egan, of Gary, and Jno. Stanton, of Crown Point, for the State.

HUGHES, Judge.

This was an action by the State of Indiana against the appellant, George W. Sweigart, clerk of the Lake circuit court, to recover a penalty for the unlawful issuance of a marriage license, brought under section 44-204, Burns' 1933, section 5635, Baldwin's Ind.St.1934, and for a temporary and final injunction. The complaint alleged, in substance, that George W. Sweigart was the clerk of the Lake circuit court and as such clerk on the 14th day of October, 1937, issued and delivered to Henry Joseph Fortman and Louise Rains a license to marry; that at said time said Louise Rains was a female person who was not a resident of Lake county, Ind., but was a resident of Cook county, Ill., and so known to be by said Sweigart; that the issuance of said license was unlawful and contrary to the provisions of the statutes of the State of Indiana; that he had been clerk of said court for more than six years and during said time has issued several thousand marriage licenses contrary to the statutes of the State of Indiana.

The complaint further alleged that on the 13th day of October, 1937, Fred A. Egan, prosecuting attorney of Lake county, notified the said Sweigart in writing that the Attorney General of Indiana had ruled that the issuance of a marriage license to female applicants who were not residents of Lake county, Ind., was unlawful and that such practice subjected him to a statutory penalty; that upon receipt of such notice he publicly announced that he intended to disregard the notice of the prosecuting attorney and the ruling of the Attorney General and that he would continue in the future, as he had in the past, to issue licenses to applicants despite the fact that the female applicants might be nonresidents of Lake county, Ind.; that since the 13th day of October, 1937, he has issued a large number of licenses in violation of the law of Indiana; that each separate license issued constitutes a separate violation of the law, and because of the large number of licenses that will be issued if separate actions were brought to recover the penalty in each case, there would be a multiplicity of actions which would seriously impede the business of the court, and therefore an injunction should be issued against the said Sweigart enjoining him from continuing the practice of issuing licenses to females who are nonresidents of the county.

The prayer of the complaint asked that the cause be submitted for trial by jury, and that the State recover a penalty as provided by statute, and that a final and permanent injunction be issued against the defendant, Sweigart, enjoining him from issuing licenses to female applicants who are nonresidents of Lake county, Ind. The court granted a temporary injunction against the appellant enjoining him from issuing marriage licenses to females who were nonresidents of Lake county, Ind.

The appellant assigns fourteen errors for reversal.

The first, second, and third assignments of error are considered together by appellant as presenting the same question, when only the ground of demurrer, to wit, that several causes of action have been improperly joined, is considered. All other assignments of error are considered by the appellant as applicable to the proposition that the complaint did not state facts sufficient to state a cause of action.

We are especially confronted with two provisions of the statutes of Indiana relating to the marriage license regulations. The first being section 44-201, and the second being section 44-204, Burns' 1933, sections 5622 and 5635, Baldwin's 1934. Both of these sections are part of the act of 1852. 1 R.S.1852, c. 67, §§ 4, 9, pp. 361, 362. Section 44-201, section 5622, Baldwin's Ind.St.1934, provides: ‘Before any persons, except members of the society of Friends, shall be joined in marriage, they shall produce a license from the clerk of the circuit court of the county in which the female resides, directed to any person empowered by law to solemnize marriages, and authorizing

[12 N.E.2d 137]

him to join together the persons therein named as husband and wife.’

Section 44-204, section 5635, Baldwin's Ind.St.1934, provides: ‘Every clerk of the circuit court who shall issue any license contrary to the provisions of this act shall forfeit and pay to the state of Indiana, for the use of common schools, any sum that in the discretion of a jury shall seem right, to be recovered in an action of debt, in the name of the state; and it is made the duty of the prosecuting attorneys, within their respective circuits, to prosecute all such suits, for which they shall receive a docket fee of twenty dollars ($20.00), to be taxed with costs of suit.’

It is the contention of appellant that the rulings of the court as presented in assigned errors 1, 2, and 3 deprived him of his right to a trial by jury. We cannot assent to this contention. Section 2-1204, Burns' 1933, section 186, Baldwin's Ind.St.1934, provides: ‘Issues of law and issues of fact in causes that prior to the eighteenth day of June, 1852, were of exclusive equitable jurisdiction shall be tried by the court; issues of fact...