The City of Huntington v. Cast

• Decision Date: 06 January 1898
• Docket Number: 18,333
• Citation: 48 N.E. 1025,149 Ind. 255
• Parties: The City of Huntington v. Cast et al
• Court: Indiana Supreme Court

48 N.E. 1025

149 Ind. 255

The City of Huntington v. Cast et al

No. 18,333

Supreme Court of Indiana

January 6, 1898

From the Huntington Circuit Court.

Reversed.

O. W Whitelock, S. E. Cook, J. Fred France and Z. T. Dungan, for appellant.

J. B Kenner and U. S. Lesh, for appellees.

OPINION

Howard, C. J.

By section one of an act of the General Assembly, in force February 28, 1897 (Acts 1897, p. 90), section 3106g Horner's R. S. 1897, it is provided that: "In all cities of this State of ten thousand inhabitants, according to the United States census of 1890, or according to a census taken under the authority of the mayor of said city, and not exceeding thirty-five thousand inhabitants, according to the United States census of 1890, there shall be established within and for said cities, a board of metropolitan police commissioners, to consist of three members to be appointed by the Governor."

By section five of the same act, provision is made that such board "shall have the custody and control of all public property, including station houses and city prisons, patrol wagons, books, records and equipments belonging to the police department."

In the first paragraph of the complaint in this case it is alleged that the appellant city has less than 10,000 inhabitants; that, through her common council, she has exclusive control of the streets and alleys, public buildings, and police department of said city; that the appellees Ayers, McClelland, and Cline, under a pretended and illegal appointment by the Governor as a metropolitan police board, are threatening to take possession and control of said streets and alleys, public buildings, and police department, and to deprive appellant of such control; that the appellee, Cast, is mayor, and chairman of the police board of said city, and is threatening to turn over to his co-appellees all the equipments of said police force. The prayer is for a restraining order, and that upon the final hearing the appellees "be perpetually enjoined from in any way interfering or taking control, supervision, or management of the streets and alleys, public buildings, police department, or any part thereof, until they establish their right by law to said office."

In a second paragraph of complaint the following, with other, additional allegations are found: That prior to the commencement of this action, the appellee Cast, as mayor of said city, "took a pretended census thereof; that he included in said census inhabitants outside of the corporate limits of said city; that said census included names of persons who are not inhabitants thereof; but she says that she cannot at this time give the exact facts concerning said census, for the reason said mayor, though often requested, refused to report the same to the council, or allow the members to examine it, but that he caused or permitted the same to be destroyed, and has failed to file the same in the clerk's office of said city, or with the papers in his office; that by deducting the inhabitants of said territory outside of said city, and the other names as above, it will leave the inhabitants much less than 10,000."

It is assigned as error that the court sustained a demurrer to each paragraph of the complaint, and dissolved the temporary restraining order.

One contention in support of the ruling on the demurrer is, that the complaint fails to state that the city of Huntington did not have a population of 10,000 according to the United States census of 1890. But "the court," as said in Denney v. State, 144 Ind. 503, 525, 31 L. R. A. 726, 42 N.E. 929, "will take notice of a census or other enumeration made under the authority of the State, or of the United States;" and we know that the city of Huntington did not have 10,000 inhabitants according to the census of 1890. Stultz v. State, 65 Ind. 492, 498; State v. Swift, 69 Ind. 505, 509.

If therefore the appointment of the appellees Ayers, McClelland and Cline as metropolitan police commissioners can be sustained under the statute cited, it must be by reason of the census said to have been taken by the mayor. But it is admitted, by the demurrer to the second paragraph of the complaint that the mayor never made such census public; that he refused to allow the members of the common council to examine it; that he failed to file it in the city clerk's...