The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-04-06
BOARD OF GUARDIANS LAW
Judge Taylor Gives 1t as His Opinion
that the Act Is Unconstitutional,
And Declares He Will Probably SO Decide in
the Shutter C~sse-9itle Does Not
Cover the Body Of the Act.


that unless the attorneys for the board
could produce authorities to maintain the
legality of the boards existence he would
hold the law unconstitutional. The court
called the attention of the attorneys to q
new phase of the question which had not
been presented TO any of the other courts
which have had the case under consldera-
ton. and on this point, q defect IN the
title. asserted his belief that the law is I'M
constitutional His opinion. In part, ID as
follows:
In the examination of this case yesterday
morning 1 reached a point that seemed to me OF
such Importance and had such q decisive hearing
upon the issue OF the case-inyolving questions
that were not presented in the argument OF this
case, and that seem never TO have been called TO
the attention OF or noticed by any OF the courts
nected with the Board of Children's Guardians
that L concluded to present 1t with
some remarks and then, If counsel thought
proper and desired to make an argument upon
case for O few days In order 10 give them time TO
investigate the subject and carefully present IT.
/ understand that this Board OF Children's
Guardians is established under the amendatory
act OF 1891, and that Its title Is the Board or
then, the act OF 1889, which was approved
March 8, 1889. and Is found In the acts OF 1883.
at page 26i, has this title: AN act to establish
having q population OF more than 10000 per-
sons: defining the powers and duties OF said
board. providing for a special township tax for
the establishing and maintaining of homes under
the care OF such boards, and declaring an emer-
gency.'
ships having over the population named, and to
provide for q tax TO establish and maintain
relation TO the levying of a tax for the establish
ing and maintaining or homes. Not a word that
L can find in that act authorizing the levy of a
tax by any tribunal, neither the township asses
SOr nor tOVQahip officers. nor by the county Tor
the establishment and maintenance OF such
homes; so 3 the matter stands until the the.
page 365 Of the acts of 1891.
An act TO establish a board Of children's
guardians in townships having a population OF
more than $4,000 persons. defining the power
special tax for the establishment and maintain
ing of homes under tie care or such board, and
declaring an emergency.. approved Marcn .:
1859. Then the first section of this amendatory
act declares that Section L of an act entitled
guardians in townships having a population Of
more than $4,000 persons, ETC., approved March
8. 1889, be amended 80 as to read as follows:
section 1. That in all counties OF this State
which have a population Of more than $4,000 in
habitants, as shown by the United states census
for the year lc9O. there shall be created a board
composed of six persons, three OF whom shall be
women, which board shall be a body polite and
incorporate known as the Board OF Children's
1tuIUlduS IA - Oulll
Now here is an amendment under the same
title, changing the territory, establishing for
counties a board of children's guardians. There
Ia no amendatory Title TO the act, but 1t Is pre-
cisely the same and to provide "a tax for the es-
tablishing and maintaining of homes.
Article 4 Of the Constitution of this State,
Section lis, Revised Statutes of 1881. page 20,
declares ''rhat every act shall embrace but one
subject. and matters properly connected there
with; which subject shall be expressed In the
title. But If any subject shall be embraced in an
act which shall not be expressed in the title such
shall not be expressed in tina title.
Now could the Legislature OF the State OF In
diana under that clause OF the Constitution nave
enacted il the act OF 1889 under the title there u
law authorizing the establishment of boards of
children's guardians III townships having a pop
ulation of over seventy-fve Thousand The sub
lect of the act ia the establishment OF boards OF
children's guardians in townships having q pop
ulation Of over 10000. Then If the Legislature
t aaa gone shs on esta ans aaaa0r'o of S Soasds 'ho of
cEildren's guardians in every county
having a population of more than $4,000 that
because the title OF the act did not embrace IL.
Then could the Legislature OF the State OF lndi-
the same anae tit tie amendat oGy title uas,1 to- eniarse It
to counties change the law so as TO authorize
under that original title the establishment of
boards of chIldren's guardians In every county
having q population OF more than 75.000a 1t
seems to me that the very statement OF the case
Is decisive of the question. The supreme Court
of this State as early as the case OF the State
against Bowers, 14th Indiana, l95, constructs
that section of the Constitution; and
it lays it down decisively that where the
case or cases to which the act applies.
the act can go no further than the title That
construction has been reaffifiDed, as far as my
Investigation goes, ever since by the Supre me
Court. 1t has never been questioned. Then,
what Is the act or acts specified In the acts OF
1881 The establishment OF the boards OF chill
dren's guardians in all townsphips having a pop
uIation of over the stated amount. What is the
amendatory act OF 1881 The same title pre-
cisely, but the body OF the amendment is the
establishment Of boards OF chlldrep's guardians
in all counties-a case not contemplated and not
embraced in the title at all-and it has the same
provision In regard TO providing q tax to estab-
hsh and maintain homes for children. 1t goes
on, however, in the amendment and provides
that the county shall buy homes. etc.-a thing
that is not IN the title at all.
Isuggest il counsel desire to examine the ques-
| ton, and make al argument, time will be given;
but 1t seems to me that it is just as decisive Of
the question as anything can be, and that this
legislation of 1891 is unconstitutional and void.
| And. ii the amendatory act of 1891 Is unconsti-
tutional and void, then the Circuit Court has no
| authority to appoint the Board Of Children's
Guardians for Marion county. The appointment
was nugatory. absolutely ~nugatory aud void. and
the pretended board appointed has no authority
whatever to make any presentations to the Cir
cult Court in relation to children, and the Cir
| cult Court no power TO make any legal order or
| Judgment III regard To them.
The writ OF habeas corpus is Older than consti-
buttons and statutes. 1t existed under the COM
mon law In England before statutes. and is a
right inherent in the people. independent Of
4 ktdtuttS duu IA sdiuo Iulo C6lUo
To us from our English ancestors, and while IL is
true that where a court having a legal jurisdic-
ton of a subject or a person renders a Judgment
| the act OF that court cannot be inquired into by
any other court; YET, where there IS no legal au-
thority whatever for that court to act. where its
action under the Constitution aud laws OF the
State is absolutely void. then any court having
jurisdiction has the right and power 10 issue a
writ OF habeas corpus. and can inquire into and
relieve the subjects from detention under such
pretended action. That Is as clear as anything
can be. it will not require any authority
TO support that proposition. A child, of course,
has not altogether the same rights that an adult
has, but still IL has IA right TO relief by the writ
of habeas corpus where it Is illegally detained.
There cannot be any question about that. . . :
Now, there Is another matter. While the SUI
preme Court OF the State on Nov. ID, 1892,
affirmed the acton of the Circuit Court in an APP
peal in q case arising under these statutes, the
Supreme Court does not seem 10 have had its at
tention directed To any OF the points made in
cred the contradiction between the title
and the body of the ameniatory act,
and IL apparently sanctions the constitution
ality of this legislation. Ii seems To me upon q
fair reading of that opinion that IL only appar
emily does it, and that ii does not even apparent
tain, or even Indicate. that this legislation ID
constitutional and valid. The right OF a parent 10
his children is q natural right. and although he
NAV not be able 10 take care OF his children lust
as A, b, c or ID would say II ought to be done
there IL no reason why he or she may not at some
time be able to do so. and whatever action ID
taken by the State in such matters should be
and the obligations and duties that exist be
tween porent and child. 1t should never be OF
tina. absolute and despotic nature that would
render 1t impossible for the relation of the par