Wilkison v. Board of Children's Guardians of Marion County
| Decision Date | 14 January 1902 |
| Docket Number | 19,562 |
| Citation | 62 N.E. 481,158 Ind. 1 |
| Parties | Wilkison v. Board of Children's Guardians of Marion County |
| Court | Indiana Supreme Court |
From Marion Circuit Court; H. C. Allen, Judge.
Proceeding by the Board of Children's Guardians of Marion County against Martin V. Wilkison to obtain the custody and control of Zola Rankin. From a judgment in favor of plaintiff defendant appeals.
Affirmed.
H. E Negley, R. M. Miller and H. C. Barnett, for appellant.
W. W Woollen and E. Woollen, for appellee.
On the 13th day of October, 1900, the board of children's guardians filed its verified petition in the circuit court of Marion county, Indiana, whereby it alleged that Zola Rankin, a female child of the age of eleven years, was in the actual control and custody of appellant, Wilkison, who resided in the city of Indianapolis, county and State aforesaid. It was further averred in the petition that the parents of the said girl had abandoned her and that their names were unknown to the petitioner, and that appellant was not related to her, and had no legal right to her custody, and that his associations and manner of living, etc., were such as tended to corrupt and contaminate the life of said girl; and the prayer of the petition was that she be committed by the court to the custody and control of the board until the further order of the court. Appellant was made a party defendant to the proceeding, and duly served with notice, and in pursuance thereof appeared in court and unsuccessfully interposed a plea in abatement to the proceeding, and subsequently demurred to the petition, which demurrer was overruled; and thereupon he filed his answer, denying the facts alleged in the pleading, and setting up affirmative matter as defense to the proceeding. On a trial by the court there was a finding in favor of the appellee on its petition, and, over appellant's motion for a new trial, the court ordered and adjudged that the custody and control of the girl in question be awarded to the appellee.
The only questions raised and discussed by appellant relate to the alleged unconstitutionality of the statute providing for the establishment of a board of children's guardians, and the invalidity of the several amendments of the original act. Counsel for appellant in their brief say: "If these acts are unconstitutional and void, as claimed by the appellant, the court erred in not finding for the defendant on such plea in abatement; and, having found for petitioner on said plea in abatement, the court erred in not sustaining appellant's demurrer to said petition; and, having found for the petitioner on the trial of the cause, the court erred in not sustaining appellant's motion for a new trial of said cause, for reasons assigned therein."
The original act under which boards of children's guardians were created was approved March 9, 1889 (Acts 1889, p. 261), and was entitled "An act to establish a board of children's guardians in townships having a population of more than 75,000 persons; defining the powers and duties of such boards, * * * and declaring an emergency." The first section of this act reads as follows: In 1891 an act to amend the statute of 1889 was passed by the legislature. See, Acts 1891, p. 365. This latter act was entitled as follows: "An act to amend an act entitled, 'An act to establish a board of children's guardians in townships having a population of more than 75,000 persons, defining the powers and duties of said board, providing for a special tax for the establishment and maintaining of homes under the care of such boards, and declaring an emergency,' approved March 9, 1889."
In the body of this amendatory act it is declared,
A comparison of § 1 of the act of 1889 with the section as amended by the act of 1891 discloses that, with the exceptions that the limitation of the original act is so changed or altered as to extend or make it apply to counties instead of townships, which have a population of 75,000 and over, as shown by the United States census of the year 1890, and the board instead of being known as the is to be known as the this section remains substantially as when first enacted in 1889. The act of 1891 also amended § 3 of the act of 1889, but the changes made therein seem to be to the extent only of authorizing a hearing of the petition in vacation by the judge of the circuit court, and providing for an appeal to the Supreme Court from the decision of the court, or judge thereof, in vacation. Without declaring in the title the purpose so to do, a...
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