The State, ex rel. Reese, t. Bogard. such term and until his successor shall have been elected and qualified." From this it appears that when the appellee was elected and qualified in April, 1888, he was to hold the office for the period of two years, and until his successor was elected and qualified. The question we are required to examine and pass upon is, did the act of 1889, supra, render him ineligible to hold after the expiration of his second term, until his successor should be elected and qualified? It is settled that the appellee would have been ineligible to hold the office by virtue of a new election. State, ex rel., v. Johnson, 100 Ind. 489; State, ex rel., v. Gallagher, 81 Ind. 558; State, ex rel., v. Adams, 65 Ind. 393; Jeffries v. Rowe, 63 Ind. 592. But this is not the question, or decisive of the question, under consideration. As has been observed, the appellee by virtue of the provisions of the Constitution and statute was elected to hold the office until a successor should be elected and qualified, and in the absence of any act or omission on his part disqualifying him from continuing in office, he is entitled to hold it until such successor has been elected and qualified, unless the statute of 1889 has rendered him ineligible. The office of township trustee not being a constitutional office, but the creature of the Legislature, it was within the the power of the Legislature to provide who should be eligible to hold the office, fix the length of their term, or, if it so desired, to abolish the office altogether. The language used in the section above quoted, declaring the ineligibility, is that he shall not be "eligible to said office for the next ensuing term." It is provided in the same act that township trustees were thereafter to hold for the term or period of four years, and until their successors are elected and qualified. Construing these two provisions together, it appears that it was the purpose of the Legislature to prevent an elector from holding The State, ex rel. Reese, v. Bogard. by election a new and additional term of four years, after having held the office for two consecutive terms immediately preceding the election held in April, 1890. An officer, after his term of office has expired, while holding until his successor is elected and qualified, is not usually designated as holding a "term" of the office, but as holding over. The words, "for the next ensuing term," are words of limitation, for without their use the act would have contained a positive declaration of ineligibility to hold after the expiration of the second term. We are not to presume, unless the wording of the act drives us to the conclusion, that the Legislature intended to establish a rule for the tenure of office of township trustees different from that prescribed in the Constitution. The act in question was, evidently, not enacted to regulate the tenure of officers holding over. If the exposition of this section contended for by the appellant is the correct one, the office of trustee in this township became vacant in April, 1890, at the expiration of the second term. By the act of March 9th, 1889 (Elliott's Supp., section 1395), the term of office of a trustee elected in April, 1890, did not commence until August of that year, thus leaving a period from April until August in which no one elected by the people could hold the office. We take it that this is a persuasive argument that the Legislature did not intend to interfere with the law allowing trustees to hold over until some one properly elected by the people qualifies and demands the office. The conclusion to which we have arrived renders it unnecessary for us to examine or pass upon the soundness of the rule of construction applied to two provisions of our State Constitution in Gosman v. State, ex rel., supra. We find no error in the record. Filed June 17, 1891. Berry, Adm'r, v. The Louisville, Evansville and St. Louis Railroad Co. No. 15,064. BERRY, ADMINISTRATOR, v. THE LOUISVILLE, EVANSVILLE AND ST. LOUIS RAILROAD COMPANY. PARENT AND CHILD.-Minor Child.-Negligent Killing of.—Action by Father as Administrator.—When not Maintainable.-- Emancipation of Child.—A father can not maintain an action as administrator of his deceased minor son to recover damages for the alleged negligent killing of his intestate unless there has been an emancipation of the infant. An averment in the complaint that at the time of his death said decedent was not, and for two months theretofore had not been, in the service of his parents, or either of them, is not sufficient to show such an emancipation. From the Dubois Circuit Court. W. R. Gardiner, S. H. Taylor and J. F. Tieman, for appellant. -- Brown, Humphrey and Davie, for appellee. MCBRIDE, J.-This was a suit by the appellant, John Berry, as administrator of his deceased minor son, Henry E. Berry, to recover damages for the alleged negligent killing of his intestate. The only question discussed by counsel on either side, is as to appellant's right to maintain the action, he insisting that while he might have sued as parent of the decedent, under section 266, R. S. 1881, he had a right to elect between the remedy given by that section and that given by section 284, R. S. 1881. It is averred in the complaint that the deceased was eighteen years of age, and left surviving him both father and mother, but that for two months before and at the time of his death he was not in the service of his parents, or of either of them. Appellant contends that if his right to maintain the action was otherwise doubtful, these averments show an emancipation of the decedent, and that after emancipation his relation to his parents was not different from that of an adult son. It is well settled that under section 266 a parent may maintain an action for injuries re Berry, Adm'r, v. The Louisville, Evansville and St. Louis Railroad Co. sulting in the death of his minor child. Mayhew v. Burns, 103 Ind. 328; Louisville, etc., R. W. Co. v. Goodykoontz, 119 Ind. 111; Ohio, etc., R. R. Co. v. Tindall, 13 Ind. 366; Pittsburgh, etc., R. W. Co. v. Vining, 27 Ind. 513. It is also decided by these cases that the two sections, 266 and 284, are to be construed together, the former being applicable to the cases of infants, and the latter to those of adults, and infants whose parents have relinquished their right to the services of the child by emancipation, or otherwise. It is insisted that the latter proposition, relating to infants, which it is asserted in each of these cases was not necessary to the decision of the cases, and is obiter, and appellee urges, with much earnestness and some plausibility, that a voluntary emancipation by a parent will not affect the question, for the reason that the parent can at any time reclaim the services of the infant. Citing Boyd v. Byrd, 8 Blackf. 113; Bolton v. Miller, 6 Ind. 262; Clark v. Fitch, 2 Wendell, 459; Stovall v. Johnson, 17 Ala. 14. We are, however, not required to pass upon this question. The only averment in the complaint which the appellant assumes shows an emancipation, is substantially as above stated, that at the time of his death said decedent was not, and for two months theretofore had not been, in the service of his parents, or of either of them. This is not sufficient to show an emancipation. Upon the remaining proposition the cases above cited determine the controversy adversely to the appellant. While the logic of these cases may be subject to some criticism, and the construction given by them to the two sections of the statute not altogether satisfactory, we can not feel that we would be justified in overruling them. The rule, as stated in Ohio, etc., R. R. Co. v. Tindall, supra, has been acquiesced in and followed for more than thirty years, and while it can not be said to have become a rule of property, public policy forbids that it should be overturned except for very strong Crowder et al. v. The Town of Sullivan et al. reasons; and in our opinion there is here no sufficient reason to justify such action. Judgment affirmed, with costs. Filed June 18, 1891. No. 14,936. CROWDER ET AL. v. THE TOWN OF SULLIVAN ET AL. MUNICIPAL CORPORATION.-Payment by Yearly Instalments.-Indebtedness Not Created for Aggregate Sum.-Where a municipal corporation contracts for a usual and necessary thing, such as water or light, and agrees to pay for it annually as furnished, the contract does not create an indebtedness for the aggregate sum of all the yearly instalments, since the debt for each year does not come into existence until the compensation for each year has been earned. SAME.-Contract for Electric Lights.-Notice.-The statute confers upon municipal corporations authority to contract for electric lights, and does not require that notice should be given inviting proposals, nor does it require notice in any form. SAME.-Use of Streets.-Exclusive Privilege to One Corporation.-Can not be Granted.-A municipal corporation can not grant to a private corporation the exclusive privilege of using its streets for the purpose of supplying the corporation, or its citizens, with light, water, fuel, or the like. SAME. Use of Streets.-Special Ordinance Granting.-Validity of. When General Ordinance Necessary.—A special ordinance granting a permissive license to a designated corporation is effective. When a municipality attempts to regulate the mode of using its streets it must do so by a general ordinance; but when it simply grants a privilege to use the streets, and does not undertake to regulate the entire subject, a general ordinance is not indispensably necessary to authorize the licensee to use the streets. The rights acquired under a mere permissive license are subject to control under the delegated governmental power vested in the municipality. CORPORATION.-Existence of.-Attacked by Direct Proceeding.- When Must be. Where there is a statute authorizing the creation of a corporation and an attempt to comply with the statute, and an actual exercise of corporate functions, the existence of the corporation can only be destroyed by a direct proceeding. From the Sullivan Circuit Court. |