The township and town officers' guide; a summary of the law governing towns and townships in the state of Indiana, with instructions and forms

Preface

Although but a small part of the legislation of the State of Indiana is devoted to township affairs, the statutes prescribing the mode of transacting township business, as the laws of the State are now published, constitute parts of two large and expensive volumes, and also of the acts passed at the regular and special sessions of the legislature in 1877, published since the last revision.

It is, therefore, necessary for township officers, in order to be fully informed of the laws they are required to administer, and by which they must be governed in the discharge of their official duties, to have access to this large body of legislation, and then the information desired must be sought for among the statutes relating to every other subject.

It has been my purpose to present in the following pages the substance of all the statutes now in force, relating to township matters, in the smallest possible compass, and so arranged that any of the subjects treated may be readily referred to.

As appropriately belonging to a work of this character, a chapter has been added containing the sub-

VI PREFACE.

stance of all the statutory provisions relating to the incorporation and government of towns.

Forms have been inserted where deemed necessary, especially in cases where officers are not required by statute to be furnished with blanks to be used by them in the performance of official duties.

References are given to Davis' Revised Statutes of 1876, and to the Acts of 1877 ; and also to the decisions of the Supreme Court of the State applicable to the subjects presented.

I am aware that the work will not be found free from imperfections, but hope I have succeeded in placing within the reach of all the means of becoming acquainted with certain branches of the law which are of practical interest and importance to every citizen, but which, in all the treatises upon the local law of the State heretofore published, have been almost wholly overlooked, and that the book will materially aid the officers for whom it was intended in the performance of their duties.

F. ADKEsTSOK

Lawrenceburgh, October 24, 1877.

INDIANA

TOWNSHIP OFFICERS' GUIDE.

Chapter I. Animals

What animals may run at large. 1 — It is the duty of the board of commissioDers of each county, to direct by an order entered, on their order book what kinds of animals shall be allowed to pasture or run at large upon the uninclosed lands or public common within the bounds of any township, in their respective counties. The order must name the kinds of animals that are permitted to run at large, and the age, and also the particular class of such animals, whether male or female. Until such order is made, no domestic animal can lawfully run at large in this state.

Animals not permitted to run at large may be taken up. — When any animal which is not specified as j^ermitted to run at large, in such order of the commissioners, shall be found running at large, or pasturing on any of the uninclosed lands, or public common, of any township in this state, any resident of such township may take up and impound such animal in any public or private pound in the township. The animal should be placed in the public pound, if there be one in the township ; if not, a private inclosure may be used.

Notice of taking up. — The person taking up and impounding such animal must give immediate notice, in writing, to the owner thereof, if such owner be known to him. The notice may be as follows :

ANIMALS.

To Otho Lowe :

Take notice that I have this day taken up a horse belonging to you, and found by me running at large on the public common in Lawrenceburgh township, Dearborn county, Indiana, said animal not being allowed by law to run at large in said township ; and that I have impounded said horse in the public pound of said township [or, on my farm in said township, as the case may be]. You are required to come and pay charges, and take said horse, or I will dispose of said animal according to law.

George Hayes.

August 10, 187T.

If immediately upon the delivery of this notice, the owner shall proceed to redeem the animal, he may do so by paying to the taker up one dollar and fifty cents.

It is immaterial what expense the taker -up may have incurred, or what his services may be in fact worth, the statute only permits the sum named to be charged, and the taker up can not be compelled to receive less.

Notice, if the owner is not known. — If the owner be not known to the taker-up, he must at once give notice, by posting written notices in three of the most public places in the township, stating the time of taking up, the age, marks, and a full description of the animal, and that the Owner thereof is unknown to him, and the place where it is impounded.

Form of Advertisement.

Notice Is hereby given that the undersigned, on the 10th day of June, 1877, took up a black mare described as follows, to wit: Said mare is sixteen hands high, has a scar on the left shoulder, mane and tail heavy, and both fore feet white.

Said mare was found running at large in Cass township, Ohio county, Indiana, contrary to law. Said animal is impounded in the public pound of said township, at Aber-

ANIMALS.

deen [or, at my farm, situated, etc., giving location in the township], and the owner of said mare is not known to me.

Eli S. Eichmond, June 10, 1877.

Oicner may reclaim animal within ten days. — If, at any time within ten days after the posting of the notice, any person shall appear and claim the animal taken up as his property, and prove by his own affidavit, or the affidavit of another person, that the animal belongs to him, and shall pay the person taking up the same three dollars for his trouble and expense of keeping, the taker-up must immediately surrender the animal to such owner without further compensation, or any other proof of ownership.

Form of Affidavit of Ownership.

State of Indiana, Ohio county :

William McHenry, being duly sworn, on oath says, that he is the owner of a black mare \_here describe as in the notices'], which was taken up and impounded on the 10th day of June, 1877, by Eli S. Eichmond, while running at large on the public common in Cass township, in said county, contrary to law.

William McHenry.

Subscribed and sworn to before me the 15th day of June, 1877.

Henry Sedam.

Justice of the Peace.

If the affidavit be made by another person for the owner, the above form can be varied accordingly.

Taker-up must take care of animal. — The taker-up must carefully attend to and provide food for the animal, and if, at the expiration of ten days from the date of posting the notices, no person shall appear or claim and prove the animal to be his property, the taker-up must immediately adver-

ANIMALS.

tise it for sale by posting written notices in three of the most public places in the township, describing the animal and stating that it was taken up as an animal not allowed by law to pasture on the public common, and the time and place where the same will be sold. At least ten days' notice must be given of the time and place of sale.

Form of Notice of Sale.

JSTotice is hereby given that the undersigned will, on the 10th day of July, 1877, at , sell at public auction, to

the highest bidder, for cash in hand, one black mare [describe fully'], taken up by me as an animal not allowed by law to pasture on the public common.

Eli S. Eichmond.

If the owner do not appear and prove his property, as already explained, before the day of sale named in the notices, the taker-up must proceed to sell the animal at public auction, to the highest bidder, and out of the price received he may retain three dollars for his services in taking up the animal, and ten cents per day for every day he has kept and fed such animal, and the balance of the money he must pay over to the count}?- treasurer for the benefit of the school fund. The county treasurer is required to retain the money in his office for one year from the time it was paid in, within which time the owner of the animal may prove, to the satisfaction of the auditor and treasurer, that the animal sold by the person paying the money into the treasury was his property, and receive the money less the fees.

Dogs subject to tax. 1 — Persons keeping or harboring dogs are liable to pay a tax of one dollar per year for each male dog, and two dollars per year for each female dog, and two

ANIMALS.

dollars per year for each dog more than one, if such dogs are over the age of six months.

Township trustee entitled to receive the dog tax. — The township trustee of each township is entitled to receive from the county treasurer, in March of each year, the amount of dog tax paid into the treasury by persons residing in his towoship, and such tax shall constitute a fund for the payment of damages sustained by the owners of sheep killed or maimed by dogs within such township.

Persons having sheep killed by dogs may be paid. — Any person having sheep killed or maimed by dogs, may present a claim to the trustee of his township for damages.

The claim may be presented in the form of an account against the township, stating the number of sheep killed and their value, or the number maimed and the amount of damage done; and, upon proper proof being made, the trustee will be authorized to allow such damages as he shall deem just, and may pay the amount he allows out of the fund in his hands arising from such tax.

The trustee, however, can not make any allowance, if the person applying has brought an action and prosecuted the same to final judgment against the owner of the dog causing the damage, nor unless he will make an affidavit that he will not bring such action.

The claim for damages may be as follows :

Form of Claim for Damages.

Lawrenceburgh Township of Dearborn County.

To Omer T. Ludlow, Dr.

To damage done by the killing of six sheep by dogs on the 10th day of September, 1877, in said township, worth $2 each $12 00

To damage done at same time and place by the

maiming of three sheep by dogs 6 00

Total damage $18 00

ANIMALS.

State of Indiana, Dearborn County.

Omer T. Ludlow, the claimant above-named, being duly sworn, says that he will not prosecute any claim for damages sustained by him as set forth in the foregoing account against the owner of the dogs causing such damage.

Omer T. Ludlow.

Subscribed and sworn to before me, the 1st day of August, 1877.

Samuel McElfresh,

Township Trustee.

The statute is silent as to the mode of proof in such case. The trustee must, however, be satisfied of the correctness of the claim, and he is the sole judge of the sufficiency of the proof. He will be justified in allowing and paying the claim upon the affidavit of the claimant alone, if he believes it to. be true, or he may require other evidence.

And the trustee may examine the claimant and his witnesses, if any are produced, orally, under oath or affirmation, or he may take their affidavits.

Owner of dog liable for damages for sheep killed. — The owner of sheep killed or injured by dogs is not, however, bound to look to the dog tax fund for payment of his damages. The act of June 15, 1852, which seems to be in force, provides that the owner or harborer of a dog will be liable to an action before any court of competent jurisdiction for the damage that ma}' be sustained by the owner of any sheep killed or injured by such dog. 1

When dogs may be killed. — Any person may at any time kill a dog found running, worrying, or injuring sheep, and if the owner of any dog which is in the habit of running from home and wandering about without the presence of

ANIMALS.

its owner, shall neglect or refuse to confine such dog, after due notice given to him of such wandering habits, it will be lawful for any person to kill such dog, wherever it may be found, running about off the premises and away from the presence of the owner. It is not necessary that the notice be given in writing. 1

When owner of animals not [table for damage done. — The owner of domestic animals, not naturally inclined to commit Ihischief, such as cows, oxen, and the like, is not liable for any injury committed by them to the person or personal property of another, unless it can be shown that he previously had notice of their mischievous propensity, or that the injury resulted from, or was attributable to some neglect on his part. 2

This rule of law does not apply to cases where animals break through a lawful fence, or where sheep are killed by dogs. The statute makes the owner liable in su.ch cases.

Diseased sheep not allowed to run at large. — In order to prevent the spread of disease among sheep, it is provided by statute, that any person being the owner of sheep, or having them in charge, who shall turn out, or suffer any sheep having any contagious disease, knowing them, to be diseased, to run at large upon any common, highwaj^ or uninclosed grounds, or who shall sell any such sheep, knowing them to be diseased, without fully disclosing the fact to the purchaser, shall be deemed guilty of a misdemeanor, and be punished by a fine of not less than two nor more than twenty-five dollars for each diseased sheep, to be recovered as other penalties for like offenses. 3

When dead animals must be buried or burned. — The act of March 11, 1867, provides that in all cases where any hog, shoat, or other domestic animal, shall die of the disease commonly called " hog cholera," or any other disease, it shall be the duty of the owner, or owners, of such hog, shoat, or other domestic animal, or the person, or persons, having the care and custody of the same, having knowledge of the fact, or upon receiving notice thereof, to cause the carcass of such animal, without unnecessary delay, to be burned, or safely and securely buried, and on failure to do so, will be guilty of a misdemeanor and subject to a fine of not less than ten nor more than fifty dollars. 1

Liseased cattle, when owner of is liable for damages. — It is unlawful for any person to bring into the state any cattle infected with the disease known as " Texas or Spanish fe-. ver," or any cattle liable to impart such fever to other cattle, and any person doing so, will be liable in a civil action to the person whose cattle may be thereby diseased, for the damages sustained by him. 2

Evidence in suits against owner of diseased cattle. — When any Texas or Cherokee cattle, liable to impart such fever, shall be brought into the State of Indiana, and any disease, kaiown as Texas or Spanish fever, shall make its appearance within sixty days and infect other cattle with the disease that have been on the same highway, common, or pasturage ground, traveled over by such Texas or Cherokee cattle, such fact shall be deemed and taken as 'prima facie evidence that the Texas or Cherokee cattle were infected with the disease known as Texas or Spanish fever, and that they did impart the disease; and the owner or owners of such Texas or Cherokee cattle, at the time of bringing the cattle into the state, and the owner or owners of the cattle at the time the disease shall make its appearance, shall be jointly or severally liable for any damages resulting from the disease, and if such fever is imparted to any cattle within sixty days on any highway, common, or pasture-ground, over which more than one drove or herd of Texas or Cherokee catile have passed, the owner or owners of each herd or drove of such cattle shall be jointly or severally liable for all damages resulting from the disease j but on the trial of an action brought to recover such damages, any defendant will have the right to prove, by any competent evidence, that his herd did not impart the disease, and if such proof is made to the satisfaction of the court or jury trying the cause, the defendant making such proof, will be entitled to judgment in his favor.

When unlawful to bring Texas cattle into state. — Any person bringing Texas or Cherokee cattle into this state at any time before the first of October, and after the first day of April of any year, and any person purchasing such cattle will be guilty of a misdemeanor, and liable to a fine of not less than one thousand and not more than ten thousand dollars, and may be imprisoned in the county jail in the discretion of the court trying the cause, not exceeding one year. The statute, however, does not prevent persons from shipping cattle through this state on railroads to other states, nor does it apply to cattle that have been during all the previous winter, north of the thirty-eighth degree of latitude; but in all cases where Texas or Cherokee cattle shall be brought into this state before the first day of October and after the first day of March in any year, the legal presumption will be that such cattle have not been during all the previous winter, north of the thirty-eighth parallel of latitude, and it will devolve on the owner of such cattle to prove the contrary. 1

Cruelty to animals. — Any person who shall cruelly beat, or torture, or over-drive any horse or other animal, whether belonging to himself or another, shall be deemed guilty of a misdemeanor, and, upon conviction shall be fined in any sum not exceeding one hundred dollars. 2

Chapter II

When township trustees may bind. — Township trustees are, by virtue of their office, overseers of the poor, and may, in their respective townships, bind children who are under sixteen years of age, in the following cases:

First. The child of any pauper, supported in whole or in part by the county.

Second. Any child whose parents abandon or neglect, or are unable to support it.

Third. Any child having neither father, mother, nor guardian, and having no sufficient means of support and education.

Fourth. Any white child taken from any asylum in any other state, and brought into this state to be bound. 2

No indenture of any child under the first or second of the above specifications will be valid, unless the assent of the judge having probate jurisdiction in the county where the child is bound is obtained. His assent must be indorsed upon the indenture and he may withhold it until notice is given to the parents of the child, and they are examined as to the propriety thereof.

How long children may be bound. — Male children may be bound until they are twenty-one years of age, and females until they are eighteen; but the marriage of a female shall annul her indenture, without regard to her age. 3

A child can not be bound for a time beyond the ages named, but may be for a shorter period.

Superintendents of county asylums may bind. — It is made the duty of superintendents of county asylums, by statute.

to bind out such poor children as, from time to time, may be under their care and charge. 1

Indentures where child is taken from a foreign asylum. — Indentures binding a child taken from an asylum in another state to a person in this state, will be valid if such indenture contains the covenants on the part of the master required of persons procuring children from such asylums, by the laws of the state where they are situated, but not for a longer period than children may be bound by the laws of this state.

How executed, where filed and recorded.- — All indentures shall be signed by the parties thereto, and acknowledged by them before some officer authorized to take acknowledgments of deeds, and the indentures must be in two parts, one to be kept by the master or mistress, and the other to be filed in the office of the clerk of the circuit court of the proper county, for the use of the apprentice, and the master or mistress must cause the indentures to be recorded in the recorder's office of the county where the master or mistress lives, within ninety days after the execution thereof, for which the recorder is ^entitled to a fee of fifty cents.

In the execution of indentures of apprenticeship, the requirements of the statute must be strictly followed. No written instrument will be good as an indenture, unless it contains the agreements required by statute, and is acknowledged and recorded. 2

Damages for failing to educate apprentice. — If the master or mistress fail to furnish the instruction required by the indentures, such master or mistress will be liable to the apprentice for such failure and the measure of damages will be what the value of the instruction would have been to the apprentice if given, which shall be determined by the verdict of a jury and the statute does not seem to limit the amount of the recovery.

The stipulation in the indentures of an apprentice in regard to his education can, therefore, be disregarded only at very great hazard to the master or mistress. Such instruction must be furnished if practicable. A fair construction of the language of the statute would seem to be that the branches mentioned must be taught if possible.

That it is merely inconvenient, or very difficult, will not excuse the master or mistress from the fulfillment of this agreement. Want of mental capacity on the part of the apprentice to acquire such education, or physical inability to attend upon the means of instruction, or the uncontrollable disobedience and insubordination of the apprentice, would render a compliance with the covenants of the indentures impracticable, and the master or mistress would not be liable.

If the apprentice have only three years, or less, to serve, or if the apprentice be a colored child, then no agreement as to the education of the apprentice is necessary to the validity of the indentures. Such seems to be the plain meaning of the statute ; but since the enactment of the law upon the subject of master and apprentice, the legislature has made provision for the education of colored children, there seems to be no longer any good reason for such a discrimination against that class of children, and overseers of the poor should in such cases require the same agreement as to education that is required in the case of white children, and where the apprentice has less than three years to serve, although the indentures will be valid without any stipulation as to education, it is nevertheless the duty of overseers of the poor to provide for the education of the apprentice, as far as practicable in all such cases.

Valuable agreements in indentures. — All valuable agreements in any indenture, on the part of the master or mistress, shall be for the benefit of the apprentice, and, if stipulated therein, to be for the benefit of any other person, shall nevertheless stand for the benefit of the apprentice, and may be sued on, and a recovery had in his or her name. 1

Circuit court may annul indentures. — The circuit court of each county where the master or mistress resides may, on complaint in writing, by any party to such indentures, or by any person on behalf of such apprentice, annul the same for the misconduct of the master or mistress, the court causing such notice as it may deem proper to be given to the parties ; and if the indentures are annulled for the misconduct of the master or mistress, the court will render judgment in favor of the apprentice for such amount as may be proper.

Court may compel absconding apprentice to return. — The circuit court may, on application of the master or mistress, cause an absconding apprentice to return to such master or mistress ; or, if he shall refuse, may commit him to jail. In all proceedings for this purpose, and to annul the indentures, the court may make such order as to the payment of costs as may be deemed just.

Indentures can not be assigned 2 — Death or removal of the master. — No indenture of- any apprentice can be assigned, except by trustees of manual labor schools, as will be presently explained. The death, or removal from the state, of the master or mistress, shall discharge the apprentice from all farther obligation ; but in case of removal of the master or mistress, it is optional with the apprentice whether he will treat such removal as a release from the indenture. The master or mistress can not be released from the obligation of the indenture by removal from the state, without the consent of the apprentice that such removal shall so operate.

Number of hours per day apprentice may be required to labor. — The statute provides that an apprentice shall not be required to work more than ten hours a day, without additional compensation. By a fair inference, the statute seems to permit the master or mistress to require the apprentice to labor more than ten hours per day, by making compensation for the additional time; but if the apprentice should be compelled to labor an unreasonable number of hours, it would be good cause for annulling the indentures and assessment of damages, on complaint made to the circuit court, even though such additional compensation be made.

Child may be bound by father, mother, or guardian.— Children may also be bound by the father, or if there be no father, or he be incompetent, then by the mother, or if there be neither father or mother competent to act, then by the guardian. If the child is over fourteen years of age, his or her assent to the indentures must be indorsed thereon and signed by such apprentice, and if such assent be not indorsed and signed the indentures will not be valid. 1

When minor may bind himself. — Any child over the age of fourteen years, having neither father, mother, or guardian, may bind himself or herself, with the assent of the circuit judge of the county in which the indentures are executed, to be indorsed thereon by such judge.

By the act of March 7, 1875, it is also provided that any manual labor school, organized and incorporated under any law of the state, may accept and execute indentures of apprenticeship, and may have the same rights and assume the same liabilities as in the case of natural persons. The indentures must be executed for and in the name of the corporation, by the trustees thereof, or by some person or officer thereto authorized by the trustees. Children may be bound to such corporations in any of the cases where they may be bound to natural persons, and under the same rules and restrictions.

Indentures may be transferred. — It is also provided by the statute that the corporation may, with the consent of the apprentice and his parents, if living in this state, and upon the order of the judge of the circuit court, transfer any indenture taken in accordance with the act of 1875, to any person of lawful age, capable of making a contract. Ti,e transfer must be made by an agreement in writing, signed by the secretary or some person or officer authorized by them, and also by the person accepting such transfer, and must be approved by the circuit judge. The agreement of transfer must also contain a stipulation on the part of the person receiving the transfer, to assume and be bound by all the covenants in the indenture agreed to be performed by such corporation, and the agreement must be executed, acknowledged, and recorded in the same manner as the indentures are required to be.

Personal liability of trustees. — The trustees of the corporation will be personally liable, during the existence of the indentures, o'r until a legal transfer thereof is made, for the performance of all the covenants and agreements therein stipulated to be performed by the corporation ; but upon the execution of the transfer, according to law, all the rights and liabilities of the trustees will terminate, and will vest in and be assumed by the person to whom the indentures are transferred, with the same effect as if he had been the original party to such indentures, instead of the corporation.

When trustees of soldiers' home may bind children. 1 — The trustees of the soldiers' home, when in their judgment it shall seem advisable, may indenture children placed in their care during minority, to such persons, and at such places in the state, and to learn such trades or employments, as in the opinion of such trustees shall be most conducive to the welfare of such children; but no such indenture will be valid that does not secure to the child all the benefits prescribed by the laws in force, governing the relation of master and apprentice, and it is the duty of the trustees to see that such children are properly treated by the persons to whom they are bound, and to prosecute in the name of the state, all violations of such indentures prejudicial to such children, and the damages recovered will belong to the child in whose behalf the suit is brought. Suit not to be brought on indenture after two years. — The statute provides that no suit shall be brought on any indenture after two years from the expiration of any term of service.