67 Ind. 71 | Ind. | 1879
The State of Indiana, on the relation of the appellant, brings this information against the appellee, averring the following facts :
That, on the 4th day of June, 1877, Thomas H. Harrison was duly appointed by the township trustees of the several townships of Boone county, in the State of Indiana, county superintendent for the said county of Boone ; that he was duly commissioned by the auditor of said county, gave bond, took the oath of office, and entered upon its duties ; that Boone county has twelve townships, and twelve township trustees, and no more ; that, on the first Monday of June, 1879, all of the township trustees of the said several townships met at the auditor’s office, in said county, for the purpose of appointing a county superintendent for said county, to succeed the said Harrison, organized, and proceeded to ballot, and after balloting one hundred and eighteen times, without being able to choose a superintendent, upon the next morning adjourned without day, separated and refused to appoint any superintendent for said county ; that afterwards, on the 5th day of June, 1879, the county auditor issued a notice to said
To this information a demurrer, alleging the insufficiency of the facts stated to constitute a cause of action, was'sustained, and judgment rendered for the appellee. This ruling is presented as the sole question in the case for our decision.
Section 33 of the original act of March 6th, 1865, providing for a general system of common schools, 3 Ind. Stat. 450, required the hoard of county commissioners, triennially, to appoint a school examiner for their respective counties,
“ "Whenever a vacancy shall occur in the office of county superintendent, by death, resignation or removal, the said trustees, on the notice of the county auditor, shall assemble at the office of such auditor and fill such vacancy for the unexpired portion of the term, in the manner herein provided, and the county auditor shall be clerk of such election in all cases, and give the casting vote in case of a tic, and shall keep the record of such election in a book to be kept for that purpose.”
By section 1 of the act of March 9th, 1875, Acts 1875, p. 131, the Legislature undertook to amend section 33 of the original act of March 6th, 1865, after it had been amended by section 2 of the act of March 8th, 1873, and was therefore not in force. The act of March 9th, 1875, so far as it undertakes to amend section 33 of the act of March 6th, 1865, is void, both as an amendment and as an original act. Draper v. Falley, 33 Ind. 465; Blakemore v. Dolan, 50 Ind. 194.
Section 2 of the act of March 8th, 1873, therefore, which is reprinted as section 33 of the present school law, 1R. S. 1876, p. 789, is the law at present in force, and which has been in force since 1873. By this act, it seems by the information before us, that the appellee in the present case was duly appointed county superintendent on the first Monday of June, 1877. Indeed, we believe, this point is not in dispute between the parties. By the
The judgment of the circuit court is therefore right, and is affirmed, at the costs of the appellant.