The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-04-08
HILDREN'SGUARDIANSLAW
Boards Attorneys Admit the Invalidity
of tie Amended Act of 1891.
Claim 10 Be Acting Under the Old Law-Mc-
Fee Given Three Years in Prison-Di-
yorce ~Suits-0ther Court Cases.


New Turn Given TO the ouestton-InvaIidity
of the Law of 1901 Admitted.
Two o'clock. yesterday afternoon. was
The time set by Judge Taylor to hear argu-
mont in the Shutter habeas corpus proceed
lngs. At that hour nearly every member
IF the board aud attorneys Clint Hare.
Charles Martindsle and w. p. Fishback
tho latter two having been called in since
the intimation by Judge Taylor that the
law was ACKNOWLEDGEMENTS present in
she court room. and Fisbback said that the
defendant accepted the views expressed by
the court as TO the unconstitutlonalisy OF
the amendatory act He proceeded to say.
however, that the board was organized and
bad operated under the law of 1883. and
hled an amended return to the writ. The
amended return details the resigna-
ton of members and election In
their stead of others. tracing the
board pack to the time of its organization
when il was incorporated as a body poiitio
and corporate with the pow sr to sue and
be sued. They say that when the law was
amended the corporation was not changed.
but they took the name of 1.-The Board OF
Children's Guardians of Marion County"
They proceed upon the theory that there Is
nothing in q name and say that they have
been varlously known as the Board of Chill
dren's Guardians of Center Township.""th
Board of Children's Guardians of Marion
County" and as the Board of Children's
Guardians" They show their organization
az the board of Center township and
attempt To evade the records wherein 1t Is
shown that ~indentures were made and
petitions filed as the board of Marion
county by setting up that 1t 10 merely q
name. The statute of 1891 being set aside
the law of 1889 is the one that the board
must exist under if it exists. This ACT ex-
pfessly provides that the boards shall be
known as the Board of ChIldren's Guard
tans of - Township. This wording.
with the fact that there is q blank left for
the name of tho township. Is construed TO
mean that the board must be known as the
board of the township within which II is
situated. Having succeeded In having the
board admit and the court declare that the
act Of 1891 Is unconstitutional. attorneys
McCray and Ashby. who are representing
the petitioner in the Shutter case. are con-
fident of success In having the first act
also declared unconstitutional. Nh. Nc
Cray says that in the case of Georgia Ann
WilkinsIagainst the board. wherein the act
was declared TO be constitutional the con-
stitutionslity was not involved, and was
not presented to the court in such O
way that Is could ave been passed upon
by them. The only questions presented
In that case, he says. were that or the
weight of testimony and the attacking Off
Judgment collaterally, two questions which
1t has been decided time and again the Su-
preme Court Will not consider. In that
ease Judge Elliott said that the act refer
ing TO the act of 1891 was constitutional
because il granted the right of appeal and
day IN court to the parent. This, Mr.. Nc
Cray says, 10 merely obiter dictum, as it is
outside of the record. The law of 1889.
however, contains no provision for appeal,
and he Is confident of success in having the
law declared unconstitutional. The attor-
neys for the petitioner were gwen until
this morning TO present to the court their
argument upon she amended return. and
Will present their side of the case at .
o'clock. If the law Is finally held TO be IN
constitutional the County Commissioner
will find themselves with an Elephant upon
their hands in the way of the Niemeyer
property purchased several months ago for
tina use of the board.