The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-02-07
RULING AGAINST MAXWELL
DEFENDANTS DEMURRER SUS-
TANNED IN THE DUDLEY CASE.
Sullivan Judge Holds the Anti-Lynch-
ing Law UnconstitutionaI-At
ney General Miller Notified.
Special to the indianapolis Journal.

Special TO the indianapolis Journal.
SULLIVAN, Ind, Feb Elm the case OF
the State ex rel. w. p. Maxwell, coroner.
VS.. John S. Dudley, Judge o. b. Harris held
this morning that the complaint is bad, up
holding the defendants demurrer, and the
court filed an opinion of nineteen pages to
support the facts which he found.
The opinion opens with a statement of
what makes law and says that when law
is in opposition to the Constitution of the
State or of the United States then il is in
valid. In this connection he upholds Sheriff
Dudley for holding an office in opposition
to law which he believes to be unconsti-
tutional. I'm the case at BAR" says the
opinion, had Mr.. Dudley recognized the
validity of the section of the act in ques-
ton and surrendered the office to Mr.. Max
we'll it would have been in possession of an
officer who by statute already, in his ca
pacity as coroner, possesses many Of the
powers Of the sheriff and is bound by many
of the same duties, and who by statutes al
ready in existence is required to perform
the duties of sheriff when the sheriff is
either interested, absent or otherwise in
capacitated from serving, and when he so
acts is entitled to receive all the fees and
emoluments of the office as his own, and If
the sheriff should voluntarily surrender the
ONCE 10 him and he performs the duties he
would be entitled to the pay and the sheriff
could not recover his fees"
Continuing, the opinions says: "If, as in
this case, and not denied in the argument,
the consensus of opinion of the bar of the
state Is that an act Is unconstitutional and
In conflict with both the letter and spirit Of
our American institutions In the particular
case, no harm or injury will come to any
one If the law Is treated as invalid until the
matter is determined, even If the law is up
al n
jury II obeyed until tested. 1t Is argued
that the forfeiture does not come within
the purview of the title of the act; that the
forfeiture OF the office does not come with
in the subject of the act, and is not proper
ly connected Herewith, within the meaning
of the Constitution; that the act imposed
on the sheriff one of the severest penalties
ever known to be imposed for a mere neg
lect of civil duty, and that too. in a case
where he may not be at fault at ALL for. as
Will be seen by reading the section, the
lynching may take place when he is far
from home, even out of the State, in pur-
suit or a criminal on requisftion, and when
the prisoner Is in charge of a tried deputy
in whose ability and courage he has the
utmost confidence, and yet the act makes
the lynching conclusive evidence Of his neg
ligence and vacates his Office. Even in such
case the statute makes II optional with
the Governor to reinstate him, for the stat
ute says the Governor may reinstate such
sheriff in his office and his decision is final.
The title of the act, 1t is true, contains the
word penalty, but not to be imposed on
the sheriff unless he takes part in the
lynching, for the penalty is for the crime
of lynching."
The opinion recites the rulings in num-
Der of cases and says: For these reasons
l would feel impelled by a sense of duty to
declare the section of the law in dispute I'M
constitutional were 1t not for the fact that
/ believe the facts as alleged in the COM
plant failed to bring the case into the stat
ute as written. Under no statute, any
theory, has the coroner any interest in the
office as sheriff during the vacancy, and the
general statute on the duties of the coroner
says he shall perform the duties of sheriff
Z in certain contingencies, and when he does
perform them he shall have the fees but
neither of them give him any interest in
the Office. The right to bring the suit by
information is not given to the person who
has an interest in performing the duties of
the office, but to the person who has an in
terest in the office; that is, the person who
has a right to the office. The demurrer to
the complaint and information is, therefore,
sustained"
The court record of the finding is as fol-
lows: 1.-THE demurrer to the complaint and
information is sustained and the plaintiff
excerpts, and, the plaintiff refusing to
amend or to plead further, elects to stand
on the ruling on the demurrer, and the
court renders Judgment in favor of the de-
PENDANT and against the plaintiff for costs,
and the plaintiff, and also the relator ex-
cepts and prays appeal to the Supreme
Court which is granted and bond &C
cepted."