« ΠροηγούμενηΣυνέχεια »
to leave legislation on the subject of tie votes in city elections as it stood before, and, besides section 43 of the act concerning cities and towns provides that all city elections shall be held in conformity with the general election laws of the state. There can be no doubt of the duty of appellees to call a special election. We are of opinion that the court below erred in sustaining the demurrer to the petition and alternative writ.
Judgment reversed, with a direction to overrule said demurrer, and for further proceedings not inconsistent with this opinion,
affidavit of the attorney of the board is not evidence against the board. 6. CONSTITUTIONAL LAW PROHIBITIONS IN
FEDERAL CONSTITUTION-APPLICABILITY TO PROCEEDINGS UNDER STATE LAWS.
Const. U. S. art. 3, § 2, providing for trial of crime by jury and amendments 5 and 6, providing that no person shall be held to answer for crime, unless on an indictment, and that in all criminal prosecutions the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor, do not apply to prosecutions in the courts of the states or to laws enacted by the Legislatures of the states, but only to prosecutions in the courts of the United States and laws enacted by Congress. 7. PHYSICIANS AND SURGEONS REGULATION OF PRACTICE--STATUTES-VALIDITY.
Statutes prescribing the qualifications of medical practitioners and regulating the practice of medicine are within the police power of the state, infringing no provisions of either federal or state Constitutions.
[Ed. Note.--For cases in point, see vol. 39, Cent. Dig. Physicians and Surgeons, $$ 1, 2.j 8. CONSTITUTIONAL LAW - DELEGATION OF LEGISLATIVE POWERS-LOCAL AUTIIORITIES.
Burns' Ann. St. 1901, § 7322, authorizing the state board of medical examiners to revoke a license issued to a physician who is guilty of a felony or gross immorality, etc., and providing for a hearing by the board of charges against a licensed physician, is valid.
[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, $ 99.]
Appeal from Circuit Court, Marion County; W. J. Buckingham, Special Judge.
Action by John Milton Rhodes against W. A. Spurgeon and others. From an order granting a temporary injunction, defendants appeal. Reversed.
Gavin & Davis, for appellants. Daniel A. Brown, Jr., and Frank P. Baker, for appellee.
(167 Ind. 1)
(No. 20,728.) (Supreme Court of Indiana. June 19, 1906.) 1. INJUNCTION - PRELIMINARY INJUNCTION COMPLAINT-AFFIDAVITS.
A temporary injunction may be granted on notice to the adverse party, upon the facts warranting its issuance being proved by averments stated on information and belief, where the adverse party does not deny the averments.
[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Injunction, $8 317, 321.] 2. SAME-SUFFICIENCY OF SHOWING.
The court, before issuing a temporary injunction, must find that a wrong is about to be committed which will be irreparable, and the mere apprehensions of the complainant, unsustained by facts, are not sufficient.
[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Injunction, $$ 305, 306.] 3. SAJE.
On an application by a physician for a temporary injunction to restrain the state board of medical examiners from hearing charges against him and revoking his license, the affidavit of plaintiff was on information and belief only. No affidavit was given of the truth of the facts alleged in the complaint by any person having personal knowledge thereof. The gist of the complaint was that the board had prejudged plaintiff's case and had intended to revoke his license without any evidence and without giving him a hearing. The affidavits of the members of the board and their attorneys denied every wrong charged in the complaint and averred that they would give plaintiff a fair and impartial hearing and determine the charges according to the evidence. Held, that plaintiff was not entitled to a preliminary injunction.
[Ed. Note.--For cases in point, see vol. 27, Cent. Dig. Injunction, $$ 320, 322.] 4. SAME - MEDICAL BOARD - HEARING CHARGES AGAINST PHYSICIAN.
Where, in a suit by a physician to restrain the state board of medical examiners from hearing and determining charges against him and revoking his license to practice medicine, the complaint alleged that the board had conspired with a third person to deprive plaintiff of his license, the fact that the third person was not in the state and could not be compelled to attend the hearing of the charges, and that the board would try the charges without his presence or testimony, furnished no ground for enjoining the board from hearing and determining the charges. 5. SAME - PRELIMINARY INJUNCTION - AFFIDAVITS.
In a suit by a licensed physician to restrain the state board of medical examiners from hearing and determining charges against him and revoking his license to practice, the
MONKS, J. It appears from the record that in 1899 appellee was duly licensed to practice medicine in Marion county, Ind., and has since that time engaged in such practice. In June, 1905, a writing making definite and specific charges of acts of gross immorality, verified by the affidavit of one Eva Boykin, was presented to the state board of medical registration and examination under section 7322, Burns' Ann. St. 1901, asking that his license be revoked therefor. Said board fixed a time and place for the hearing of said charges and gave appellee notice thereof as required by section 7322, supra. Thereupon before the time fixed for said hear'ng appellee brought this suit to enjoin appellants, the members of said board, from proceeding to hear and determine charges of "gross immorality” which were then pending against him before said board, and from revoking his license to practice medicine. A temporary injunction was granted by the judge in vacation upon notice to appellants, and from such order this appeal was taken.
It is insisted by appellants that the court erred in granting said temporary injunction. Section 7319, Burns' Ann. St. 1901, authorizes the granting of a license to practice medicine upon a certificate issued by the state board
of medical registration and examination. conspirator of said board, acting for and on Section 7322, Burns' Ann. St. 1901, provides its behalf and in furtherance of said conthat any such license may be revoked by spiracy, filed the attached fraudulent afsaid board, if the person holding the same fidavit, charging this petitioner with gross is "guilty of a felony, or gross immorality, or immorality such as
immorality such as to unfit him for his pracis addicted to the use of liquor or drug habit tice. "That it is the intention of said board to such a degree as to render him unfit to to hear and determine said charges, and said practice medicine or surgery.” Said section board intends and will, as previously conprovides further that: “A specific written
"A specific written spired, revoke the license of your petitioner charge, verified by affidavit, must be present- unless restrained from so doing by this ed to the board, making definite and specific court.” That said board has “fraudulently charges of such facts against the holder of conspired” with said Eva Boykin to deprive such license. The board shall thereupon fix the appellee of his license, "in that said Eva a time and place for the hearing of such Boykin was employed by and paid by said charges, at which the person charged may board to visit certain physicians, among thein appear and defend against the same. A the plaintiff, and to then make affidavit copy of such charges, together with a notice against them. That said Eva Boykin is outof the time and place fixed for the hearing, side of the state of Indiana and a fugitive shall be served upon the person so charged from justice.
from justice. That said board will not proat least twenty (20) days before the time duce her at the hearing of the charges set for the hearing of the same. If, after against the appellee.
against the appellee. That said board will such hearing, the board revokes such certifi- | not allow the appellee to produce witnesses cate and license, such order shall be by said in his defense. That the attorneys for the board entered upon its record.” In case the said board have announced that said board board revokes the license an appeal may be intended to revoke the appellee's license, and taken to the circuit or superior court of the that he would not be accorded the right to county in which said license was issued. On examine his accusers under oath. That the appeal the verified charges are treated as the hearing of said charges will work great harm complaint, and “the accused may plead to and injury to the appellee in his business said charges and issues may be formed there- and profession, and will injure his reputaon as in any civil case.” The complaint tion, whether they are sustained or not, and a verred: That the individual appellants whetlier said license is revoked or not. were members of and composed the state Wherefore he asks for a permanent injuncboard of medical registration and examina- tion and temporary restraining order pretion. That in 1899 the appellee was duly | venting said board from trying the appellee licensed to practice medicine in Marion
in Marion, and from revoking his license.” The charges county, and has since that time been en- show that the appellee had offered to pergaged in such practice, and that this right form this abortion upon the said Eva Boykin, is of value to him and is a property right believing her to be pregnant, for $10, or $15 That the board has "conspired with one Eva or $25, according to the character of the operBoykin to fraudulently deprive" appellee of tion. This complaint was sworn to by the his license. That in pursuance of said con- appellee, who states that the matters and spiracy said board employed said Eva Boy- | facts therein contained are true "as he is inkin to visit him and to attempt to induce him formed and verily believes." to commit an abortion upon said Eva Boykin, An affidavit of a person not a party to this and in furtherance of said conspiracy sa'd proceeding was filed in support of said apboard hired said Eva Boykin to file affidavits plication for injunction, which stated that before it. That the appellee had been noti- an attorney for appellants had said to affied by the board of the filing of charges fiant “that said Eva Boykin and a man whose against him, charging him with gross im- name he had agreed not to disclose were morality and for answering which he was gathering evidence against physicians, and required to appear before the board on the that certain doctors, among them Dr. Rhodes 16th day of August. That he was thus re- (appellee), had been notified to appear before quired to appear under and by virtue of the board for trial, as they desired to make authority claimed to be conferred by an act some examples in order to stop abortions; regulating the practice of medicine
as that Eva Boykin was a 'tool,' or 'stool amended in 1901, which provided that upon pigeon,' and had been employed by the board charges of gross immorality a license might to gather evidence. Said attorney further. be revoked by the board. That the charge stated to said affiant that the board would against him as given-gross immorality-is not have said Eva Boykin at the trial of a "fraudulent one,” made by said Boykin at said Rhodes; that in fact the board would the instigation of said board, and in further introduce no testimony in any of the cases ance of the conspiracy she filed said affidavit then pending, other than the affidavits which before said board, and charged him with were filed against the physician on trial.” unfitness to practice medicine, in that he, This affidavit and the verified complaint believing the affiant to be pregnant, had were all the evidence given by the appellee agreed to perform an abortion upon her. That at the hearing of said application. The afthe said Eva Boykin, the secret employé and fidavits of five members of the board were
read in evidence. These affidavits were sub- determine that a wrong is about to be comstantially the same, and each alleged that no mitted which will be irreparable before the steps of any kind had been taken or would relief will be granted. High on Injunctions be taken to wrongfully deprive appellee of (4th Ed.) 88 35, 1567, 1509, 1571, 1574, and his license; that Eva Boykin had not been cases cited; Attorney General v. Bank of hired to make said affidavits; that said Columbia, 1 Paige (N. Y.) 511; Campbell v. board had no intention to revoke appellee's Morrison, 7 Paige (N. Y.) 157; Youngblood license unless the evidence, when heard, v. Schamp, 15 N. J. Eq. 42; Warfield v. justified and reguired it; that it is not true Owens, 4 Gill (Md.) 361, 382; Goodwin V. that said board will not allow appellee to New York, N. H. & H. Ry., 43 Conn. 494. produce witnesses in his defense, but, on the In Campbell v. Morrison, 7 Paige (X. Y.), at contrary, it is and always has been the in- page 160, it was said: "The complainant does tention of said board in this case, and the not profess to know anything of the facts uniform practice of said board in like cases,
upon which his application for an injunction to permit oral evidence and witnesses to be is founded. He therefore merely swears to examined if the party so desired; that the
his information and belief, which informamembers of said board had no intention or tion may have been derived from those who purpose except to hear the evidence fairly were no better informed than himself on the and impartially, and then to fairly and im- / subject. Such an allegation is undoubtedly partially determine his rights as the law and sufficient in a bill to call for a discovery the preponderance of the evidence require.
from the defendant of the facts thus stated; Appellants also read in evidence the affidavit and it may in certain cases be sufficient to of their attorneys, which states that said
authorize the issuing of an injunction, where attorneys never said that the board intended the defendant has had an opportunity to be to revoke appellee's license, nor did the
heard in opposition to the application. Num · board, so far as their information and knowl- ford v. Sales (in Chancery 20th March, 1838); edge goes, have any such intention, or any
Attorney General v. Bank of Columbia, 1 intention, except to hear the evidence and Paige (N. Y.) 511." The chancellor said, in fairly determine whether or not the charges Attorney General v. Bank of Columbia, 1 were sustained.
Paige (N. Y.) 515: "Where a party cannot Appellants contend that appellee's affidavit,
be presumed to have positive knowledge of a being only upon information and belief, can- fact, it is the consistent practice of this and not be accepted in a court when the matter of all other courts to permit him to swear to is in controversy. It has been held as a his information and belief, and give the adgeneral rule that when a party seeks a tem- verse party, who alone can swear positively porary restraining order, which in this state on the subject, an opportunity to deny it on is without notice, if the facts and circum. oath. If he does not deny it, or furnish stances are not within his personal knowl-some explanation to induce the court to edge, he should state them upon his informa
think otherwise, the belief of the other party tion and belief, and annex or file therewith
is to be taken as the fact." High on Injuncthe affidavit of some other person, having
tions (4th Ed.) § 1574, says: "And when personal knowledge of the facts alleged, that the motion for a preliminary injunction is the same are true upon his personal knowl- heard upon bill and answer, or upon bill, edge of the facts. Beach's Mod. Eq. Prac. answer, and affidavits, and the equities of $ 769, and cases cited; High on Injunctions the bill are fully met and negatived, the in(4th Ed.) $$ 35, 1567, 1569, 1574, 1575, 1581; junction will not be granted.” Gibson's Suits in Chancery, § 818; Campbell Applying the rules above stated governing V. Morrison, 7 Paige (N. Y.) 157; Bank of the granting of temporary injunctions when Orleans v. Skinner, 9 Paige (N. Y.) 305;
notice of the motion therefor has been given Youngblood v. Schamp, 15 N. J. Eq. 42; to the defendant, it is evident that the eviManistique Lumber Co. v. Lovejoy, 55 Mich. dence given in this cause was not sufficient 189, 20 N. W. 899; Brooks & Hardy V.
to sustain the allegations of the complaint. O'Hara Bros. (C. C.) 8 Fed. 529; Ballard v. It is not necessary, therefore, for us to deEckman & Vetsburg, 20 Fla. 661, 675, 676. cide, and we do not decide, whether or not, As to the correctness of the rule we need not if said allegations had been established by decide, for the temporary injunction was sufficient and proper evidence, appellee would granted upon notice to appellants, and in have been entitled to a temporary injunction. such a case the fact that many or all of the It will be observed that the affidavit of apmaterial averments of the application are pellee to the complaint, which was read in stated upon information and belief will not evidence, was on his "information and beprevent the granting of the relief when the lief” only, and that no evidence was given defendant in no manner denies such aver- of the truth of the facts alleged in the comments. Gibson v. Gibson, 46 Wis. 462, 1 N. plaint by any person having personal knowlW. 154. The mere apprehensions or fears edge thereof; that the affidavits of the five of a complainant, unsustained by fact, do not members of the board and their attorneys deny constitute a sufficient ground for the inter- every possible wrong charged in the complaint. ference of equity by injunction. Not the The allegation to the effect that Eva Boykin complainant, therefore, but the court, must was employed to procure evidence in regard
to the character of appellee is not denied, only to proceedings and prosecutions in the but this alone would not authorize the grant- courts of the United States and laws enacted ing of a temporary injunction. The gist of by Congress. Cooley's Const. Lim. (7th Ed.) the complaint is that appellants had pre- p. 46, and cases cited in notes 4 and 5; judged appellee's case and had intended to Twitchell v. Comm., 7 Wall. (U. S.) 321, 19 revoke his license without any evidence and L. En. 223; Barron v. Mayor, etc., 7 Pet. without giving him a hearing. Said affidavits (U. S.) 243, 8 L. Ed. 672; Herman v. State, of appellants and their attorneys deny the 8 Ind. 545, 552; Lake Erie, etc., R. Co. v. charge, and say in effect that they intend to Heath, 9 Ind. 558, 559; Baker v. Gordon, 23 and will give him a fair and impartial hear- Ind. 204, 209; Butler v. State, 97 Ind. 378, ing, and will determine said charges accord- 382; Lloyd v. Dollison, 194 U. S. 445, 24 Sup. ing to the evidence. This is all he is en- Ct. 703, 48 L. Ed. 1062; Capital City Co. v. titled to demand. The fact that Eva Boy. Ohio, 183 U. S. 238, 22 Sup. Ct. 120, 46 L. Ed. kin is not in this state and cannot be com- 171; Barton v. Kimmerley (Ind. Sup.) 76 pelled to attend the hearing of said charges, N. E. 250, and cases cited. or that the board would try said charges Statutes prescribing the qualifications of without her presence or testimony, furnished practitioners of medicine and surgery, and no ground for enjoining the board from hear- otherwise regulating the practice of those ing and determining the truth of said charges. professions have been uniformly upheld by The affidavit in regard to the statement made the courts as a valid exercise of the police by the attorney for appellants adds nothing power of the states, infringing no provisions to the complaint, and does not tend to sup- of either federal or state Constitutions. port it, for the reason that said attorney was State v. Green, 112 Ind. 462, 14 N. E. 352; not a member of said board, and his state- Eastman v. State, 109 Ind. 278, 10 N. E. 97, ments were not proper evidence against ap- 58 Am. Rep. 400; State v. Webster, 150 Ind. pellants.
607, 50 N. E. 750, and cases cited, 41 L. R. A. It is next insisted by appellee that said 212; Parks v. State, 159 Ind. 211, 64 N. E. temporary injunction was properly granted 862, 59 L. R. A. 190; Meffert v. Medical for the reason that section 7322, supra, so Board, 66 Kan. 710, 714, 715, 72 Pac. 247; far as it attempts to confer on said board the People v. Hawker, 152 N. Y. 234, 46 N. E. power to try appellee and determine whether 607; Reetz v. Michigan, 188 U. S. 505, 23 or not he is guilty or not guilty of the gross Sup. Ct. 390, 47 L. Ed. 563; Dent v. West immorality charged, and to revoke or refuse Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. to revoke his license therefor, is wholly un- Ed. 623; Hawker v. New York, 170 U. S. constitutional and void, in that it attempts 189, 18 Sup. Ct. 573, 42 L. Ed. 1002; 22 Am. to confer upon said board judicial power; & Eng. Ency. of Law (2d Ed.) pp. 780–782; that it is in violation of the fifth amendment 2 Current Law, pp. 887, 888. Statutes conof the Constitution of the United States, which taining a provision like the one in question provides that "no person shall be held to an- here, authorizing the board to revoke a liswer for a capital or other infamous crime cense when the holder has been guilty of a unless on a presentment or indictment by a felony or of gross immorality, have been grand jury,” and of the sixth amendment held not to violate any provision of the fedof the same Constitution, which provides that eral or state Constitutions, and it has been "in all criminal prosecutions the accused shall held that the granting or refusing to grant a enjoy the right * * * to have compul- license to practice medicine, or the revocasory process for obtaining witnesses in his tion thereof by the board, is not the exercise favor” in this: that no provision is made in of judicial power. 22 Am. & Eng. Ency. of said section or act for compelling the attend- Law (2d Ed.) pp. 784, 785; 2 Current Law, ance of appellee's witnesses by compulsory p. 888; State v. Webster, 150 Ind. 607, 50 process; that said section 7322 violates sec- N. E. 750, 41 L. R. A. 212, and cases cited tion 2, subd. 3, of article 3 of the Constitu- in 41 L. R. A. 214; Town of Greenwood v. tion of the United States (Burns' Ann. St. State, 159 Ind. 267, 269, 64 N. E. 849; Wil1901, § 16) which provides that “the trial kins v. State, 113 Ind. 514, 16 N. E. 192; Ellis of all crimes except in cases of impeachment v. Steuben Co., 153 Ind. 91, 54 N. E. 382; shall be by jury." As to appellee's conten- Meffert v. Medical Board, 66 Kan. 710, 72 Pac. tion in regard to the sixteenth section of 247; Meffert v. Packer et al., 195 U. S. 625, 25 article 3 of the Constitution of the United Sup. Ct. 790, 49 L. Ed. 350; State v. State States, and the fifth and sixth amendments of Board, etc., 34 Minn. 387, 26 N. W. 123; State the same Constitution, it is sufficient answer v. State Board, etc., 34 Minn. 391, 26 N. W. to say that the facts stated in the charges, 125; State v. Board, etc., 32 Minn, 324, 20 the trial of which appellee seeks to enjoin N. W. 238, 50 Am. Rep. 575; Traer v. State in this case, do not constitute a public offense, Board, etc., 106 Iowa, 559, 76 N. W. 833 ; nor is it claimed that they constitute such State Board, etc., v. Roy, 22 R. I. 538, 48 offense; but, even if they did, said provisions Atl. 802; People v. Hawker, 152 N. Y. 234, of the Constitution of the United States do 46 N. E. 607; Hawker v. New York, 170 U. not affect or apply to prosecutions or proceed- S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002. ings in the courts of the states or to laws It was said by this court in State v. Webster, enacted by the Legislatures of the states, but 150 Ind. 621, 50 N. E. 755: “While in sowe.
respects quasi judicial, the action of the allotment, for which labor he was to be paid board is not judicial, any more than is the $90 out of the funds of the said Rich Grove action of a county surveyor in fixing a township. Upon completion of the work the boundary line, or of a county superintendent trustee issued to him the following certifin giving or refusing a teacher's certificate, icate, which was filed with and made a part or the action of numberless other officers or of the complaint: “State of Indiana, Pulaski boards in making investigations and decisions County-SS.: 1, John Parratt, trustee of in matters committed to them. Neither is Rich Grove township, in said county and the circumstance that an appeal is allowed state aforesaid, do hereby certify that George from a decision of the board an indication Turner, by my direction as said trustee, that its action is judicial. “The right of ap- has done labor in cleaning out allotment peal from the action of boards in their ad- No. 13 in the Ender ditch, assessed to ministrative character,' it was said by this the south half of the northwest quarter court in Board v. Heaston, 144 Ind. 583, 41 and northeast quarter of
of the southwest N. E. 457, 43 N. E. 651, 55 Am. St. Rep. 192, quarter of section 31, township 31 north, ‘is frequently conferred by statute. The ap- range 3 west, in Pulaski county, Indiana, in peal in such cases is not permitted because the name of W. G. and Levi Ender to the the action of the board is considered judicial, amount of ninety dollars, and he is entitled but it is granted as a method of getting the to receive said sum out of the township funds matter involved before a court that it may of said township as soon as the assessment be determined judicially.'”.
now on file in the auditor's office against said : It is clear that the judge erred in grant- land above described is paid. Dated this ing the temporary injunction. The order 12th day of December, 1902. John Parratt, granting the same is therefore reversed. Trustee of Rich Grove township. [Seal.]”
On July 18, 1903, Turner, for a valuable
consideration, assigned in writing this certif(167 Ind. 31)
icate to appellant, who, at and prior to the QUICK v. PARRATT, Township Trustee, et al.
commencement of this action, was the bona (No. 20,843.)
fide holder thereof. No part of the $90 has (Supreme Court of Indiana. June 20, 1906.)
been paid and the township trustee has reDRAINS–EXPENSE OF CLEANING-LIABILITY fused to pay the same, or any part thereof, OF TOWNSIIIP.
and has wholly failed to collect the assessBurns' Ann. St. 1901, 85638, provides that, if a landowner fails to clean his allot
ment for the allotment. Appellee Parratt, ment of a public ditch, the township trustee the trustee, appeared to the action and filed shall have the same cleaned and certify the a motion to dismiss the same, so far as he cost to the county auditor, who shall place it
was concerned, assigning as a reason thereon the tax duplicate, and also provides that the trustee may recover such expense and
for that he was not the proper party, either his fees by action. Held, that neither a town- in his individual or official capacity. This ship nor its trustee, as such official, is liable
motion, as the record recites, was sustained. for the work performed in cleaning out any allotment of a public ditch under a contract of
Rich Grove township demurred to the comemployment made by the trustee under the plaint on the ground that it did not state statute.
facts sufficient to constitute a cause of ac[Ed. Note.—For cases in point, see vol. 17, tion. Its demurrer was sustained, and, on Cent. Dig. Drains, § 65.]
the appellant's refusal to plead further, judg. Appeal from Circuit Court, Pulaski Coun- ment was rendered against him for cost. ty; John C. Nye, Judge.
Section 5633, Burns' Ann. St. 1901, authorAction by William M. Quick against John izes the county surveyor to allot portions of Parratt, as trustee of Rich Grove township, .a public ditch to landowners, corporations, Pulaski county, and another. From a judg
From a judg- etc., assessed for the construction thereof ment in favor of defendants, plaintiff ap- for the purpose of cleaning out and keeping peals. Transferred from Appellate Court such improvements in repair. After the under section 1337u, Burns' Ann. St. 1901. allotments have been made, section 5637, Affirmed.
Burns' Ann. St. 1901, imposes it as a duty Spaugler & Son and Robbins & Pentecost,
upon such landowners, etc., to clean out and for appellant.
l'epair the respective parts of the ditch allot
ted to them, between the 1st day of August JORDAN, C. J. Appellant sued John Par- and the 1st day of November of each year. ratt, trustee of Rich Grove township, Pulaski Section 5638, Burns' Ann. St. 1901, expressly county, Ind., together with said Rich Grove provides that it shall be the duty of every township, to recover a money judgment. person or corporation to whom an allotinent The complaint alleges the following facts : of a public ditch has been made, upon reJohn Parratt, as trustee of Rich Grove town- ceipt of the notice from the township trustee, ship, Pulaski county, Ind., in the year 1902, as therein provided, "to perform his allotemployed George Turner to clean out allot- ment within the time fixed in said notice, ment No. 13, of a public ditch, known as the and on failure so to do, the trustee shall "Ender Ditch," situated in said township. proceed at once to have the same completed Turner, under and in pursuance of the con- and shall certify the cost thereon, including tract of employment, cleaned out the ditch his own per diem, to the auditor of the