State, ex rel., v. Beil.

is apparent. It seems to be suggested by the argument of appellant that appellees' contention below was that the complaint was insufficient, (1) for failure to set out in haec verba the rule adopted by the board of health, and (2) that the rule as adopted was ineffectual for failure to set forth the facts constituting the emergency therefor. There is no merit in either of these objections. The rule is not the foundation of the action. The rule, when properly adopted and promulgated, as is fully shown by the complaint, had the force and effect of law, Blue v. Beach, 155 Ind. 121, and persons called upon to obey it had no right to demand postponement until the wisdom and reasons for the rule were first disclosed to them. Local boards of health are created and authorized by the legislature and duty bound to adopt and enforce rules and regulations for the arrest and prevention of contagious and infectious diseases in their respective jurisdictions whenever the necessity therefor arises. The question of necessity must, from the very nature of the object to be attained, rest within the discretion or judgment of the board of health, which seeks to adopt and enforce the rule. It is the duty of the board to determine when there has been an exposure to a contagious disease, what constitutes an exposure, when the health of the citizens under its jurisdiction is threatened by an epidemic, and when the preservation of the health of the people demands that the board take action to prevent the spread of such infectious disease. And when the board has acted it will be presumed that sufficient facts existed to warrant its action until the contrary appears.

The appellees as officers charged with the public duty of managing the schools of the city of Bluffton are the proper persons to be called upon to enforce the rule in question in such schools. Under $5920 Burns 1894, $4444 R. S. 1881 and Horner 1897, it is their duty to take charge of the educational affairs of their city, to employ teachers, provide suitable houses, furniture, apparatus, and other articles and

State, ex rel., v. City of Noblesville.

educational appliances necessary for the thorough organization and management of such schools.

It is their duty to determine the length of the school year, when it shall begin, and when it shall end, and when the school shall have vacation, and when it shall be temporarily adjourned and for what cause. Of qualified teachers they may employ whomsoever they please, fix their compensation, and discharge them for cause. They may adopt reasonable rules for the discipline and government of the schools, impose upon pupils the penalty of expulsion for their infractions and require enforcement by their teachers. State, ex rel., v. Webber, 108 Ind. 31; Fertich v. Michener, 111 Ind. 472.

In short, the teacher is nothing more nor less than the employe of the trustees, subject in all things pertaining to the management of the school to their will and direction. It follows, therefore, that the primary duty of enforcing the rule in controversy rests upon the appellees. That duty is clearly exhibited by each paragraph of the complaint. Judgment reversed, with instruction to overrule the demurrer to each paragraph of the amended complaint.

THE STATE, EX REL. BARNETT, V. THE CITY OF

NOBLESVILLE ET AL.

STATUTES.

[No. 19,292. Filed May 28, 1901.] Repeal by Implication.

Repeals by implication are recognized only when the earlier and later acts are repugnant to, or irreconcilable with, each other. p. 34.

MUNICIPAL CORPORATIONS.-Removal of City Officer by Common Council.-The act of 1867 (§3101 R. S. 1881) authorizing the common council of any city by a two-thirds vote of its members to remove a city officer for any offense against the character or duty of his office, is not repealed by implication by the act of 1875 ($6012 R. S. 1881) which provides for the removal of public officers for drunkenness upon complaint being filed in the circuit court by any citizen, or by the act of 1897 (8108u-8108gl Burns 1901), which provides for the impeachment and removal of such officers upon accusations in writing by the grand jury. pp. 34-36.

State, ex rel., v. City of Noblesville.

MUNICIPAL CORPORATIONS-Ordinance.-Publication.-An ordinance which prescribes only the manner in which charges of official misconduct shall be preferred, the notice to be given, and the mode of hearing the evidence, is not penal, nor does it impose a forfeiture; and therefore its publication is unnecessary. p. 36.

SAME.-Removal of City Officer.-Oath of Mayor and Council.-In the removal of a city officer, under $3101 R. S. 1881, the mayor and common council of a city act under their official oaths, and need not be specially sworn. p. 37.

From Hamilton Circuit Court; Theodore P. Davis, Special Judge.

Mandamus by the State, on the relation of Frank Barnett, against the city of Noblesville, to compel defendant to reinstate relator to the office of city marshal. From a judg ment in favor of defendant, relator appeals. Affirmed.

Geo. Shirts and W. R. Fertig, for appellant.

I. W. Christian, W. S. Christian and E. E. Cloe, for appellees.

DOWLING, J.-Application for a writ of mandate to compel the city of Noblesville and its common council to restore the relator to the office of marshal of said city. Alternative writ issued. Demurrers to complaint and to alternative writ sustained. Judgment for appellees. Errors are assigned upon these decisions.

The complaint alleges that the relator, Barnett, was elected and duly qualified as marshal of the city of Noblesville for the term of four years from September, 1898; that he entered upon the duties of his said office, and continued to act as such marshal until prevented by the appellees; that on June 5, 1899, the common council passed an ordinance providing for the summary impeachment of city officers before that body after notice to the accused; that said ordinance was not published in any newspaper until after the commencement of the proceedings against the relator; that on the night said ordinance was passed, an affidavit was filed with said common council charging that the relator, on June 1, 1899, had appeared upon the streets of said city

State, ex rel., v. City of Noblesville.

in such a state of intoxication as prevented him from performing the duties of his said office; that on the same night. the city clerk and mayor were directed to notify the relator to appear before the common council on June 9, 1899, to answer said charge; that, at the time fixed, the relator appeared, and moved to dismiss the proceedings; that his motion was overruled, and the hearing took place; that neither the mayor nor any member of the common council was sworn to try said cause; that at the conclusion of the investigation the relator again moved to dismiss the proceeding, but without avail; that, on June 10, 1899, the common council decided that the charges were sustained, and the mayor thereupon declared the relator expelled and removed from his office of marshal; and that these proceedings were afterwards approved by the common council at its regular session held June 12, 1899. The complaint further shows that at said session the police board was authorized to choose a successor for the relator in said office; that the relator denies the validity of said proceedings, and has refused to surrender his said office, but that he is wrongfully deprived of the same by the appellees by virtue of the proceedings aforesaid. Prayer for a writ of mandate to restore the relator to his office as marshal.

The general act for the incorporation of cities expressly authorized the common council to expel or remove any city officer by a two-thirds vote of the whole number of councilmen elected; and required the common council to make provision in their by-laws, or ordinances, for the mode of presenting charges and the hearing of the same. Acts 1867, p. 75, $88; $3101 R. S. 1881; $3536 Burns 1894.

In 1875 the legislature enacted a statute declaring that any person holding any office under the Constitution or laws of this State, who should voluntarily become intoxicated, within the business hours of his office, or should be in the habit of being intoxicated by the use of intoxicating liquors,

VOL. 157-3

State, ex rel., v. City of Noblesville.

should forfeit his office, and be removed therefrom, upon the complaint of any citizen filed in the circuit court of the county in which such officer resided. The act prescribes the form of procedure, and the character of the judgment to be rendered. Acts 1875, p. 91; §6012 R. S. 1881; §8088 Burns 1894. By another act, which took effect March 8, 1897, provision was made for the impeachment and removal of any district, county, township, or municipal officer, justice of the peace, or prosecuting attorney, upon accusation in writing by the grand jury. Acts 1897, p. 280, §§21-33.

The common council of the city of Noblesville proceeded under the provisions of $88 of the act of 1867, supra, and the appellant insists that this section was repealed by the acts of 1875 and 1897, supra, and that the action of the common council was therefore unauthorized and void. The question of the power of the common council to remove the relator is properly presented by his application for a writ of mandamus. $1168 R. S. 1881, §1182 Burns 1894; City of Madison v. Korbly, 32 Ind. 74; Swindell v. State, ex rel., 143 Ind. 153, 35 L. R. A. 50.

It is said that one of the common law incidents of all corporations is the power to remove a corporate officer from his office for just and reasonable cause. King v. Richardson, 1 Burr. 517; 2 Kyd on Corp., p. 62; Beach on Pub. Corp., $191.

In the case at bar it is claimed that $88 of the act of 1867, supra, was repealed by implication. Therefore, it is incumbent on the appellant to show that $88 is inconsistent with some provision of one of the later enactments, or that it has been superseded by them. This, we think, he has wholly failed to do. Repeals by implication are not favored, for the reason, among others, that they often result in uncertainty and confusion. They are recognized only when the earlier and the later act are repugnant to, or irreconcilable with, each other. Where the two statutes even appear to conflict, the court will, if possible, adopt that construction