of these things must be deemed guilty of a misdemeanor; and the offense is by the terms of section 627 made complete without any reference to notice from any officer. Upon the occurrence of the facts stated in section 627a the owner or occupant of land notified, if guilty of any offense, would be rendered so upon facts described in that section. The affidavit stated an offense completely when it charged the appellee with knowingly, unlawfully allowing Canada thistles to grow and mature upon his land described. If one offense be sufficiently averred in an indictment or affidavit, the pleading will not be rendered bad by the fact that another offense also is insufficiently averred. The latter charge should be treated as surplusage. Eagan v. State, 53 Ind. 162; Hatfield v. State, 9 Ind. App. 296, 36 N. E. 664. When a statute makes it a crime to do any one of a number of things mentioned disjunctively, all of which are punishable alike, any or all of them may be charged conjunctively in a single count. Marshall v. State, 123 Ind. 128, 23 N. E. 1141; Rhodes v. State, 128 Ind. 189, 27 N. E. 866, 25 Am. St. Rep. 429; Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; Hobbs v. State, 133 Ind. 404, 32 N. E. 1019, 18 L. R. A. 774; State v. Sarlls, 135 Ind. 195, 34 N. E. 1129; State v. Stout, 112 Ind. 245, 13 N. E. 715; Mergentheim v. State, 107 Ind. 567, 8 N. E. 568; Fahnestock v. State, 102 Ind. 156, 1 N. E. 372; Davis v. State, 100 Ind. 154; Crawford v. State, 33 Ind. 304; State v. Alsop, 4 Ind. 141. several reasons are assigned, they are all included in the single question decided in the original opinion, viz.: That under the facts stated in the complaint the right of action was in the widow of decedent, and not in his personal representative. It is urged that the action was rightly brought in the name of the administratrix, for the reason that section 13 of the mining act, being section 7473, Burns' Ann. St. 1901, "was modified by the later enacted general statute of 1899 (Act 1899, p. 405, c. 177), which conferred the right of action for death by wrongful act, upon the personal representative." It is insisted that, under the amended act of 1899, supra, a right of action where death results from the "wrongful act or omission" of one, is lodged solely in the personal representative of the decedent. If this is true, the amended act repeals, by implication, section 7473, supra, which gives the right to the widow, etc., "or to any other person or persons who were before such loss of life dependent for support on the person or persons so killed," etc. If the latter section is repealed, then we were in error in holding that the administratrix could not maintain this action. Prior to the re-enactment, in 1899, of the general statute giving a right of action for the death of a person, caused by the wrongful act or omission of another, the damages recoverable inured "to the exclusive benefit of the widow and children, if any, or next of kin," etc. The only change made by the amendatory act of 1899, supra, was by adding the words "or widower (as the case may be)." It seems clear that the purpose of the amendatory act was to extend the provisions of the statute to the widower by making him a beneficiary thereunder. It is evident, from the words employed, that it was not the intention of the Legislature to repeal section 13 of the mining act. So, if the latter section was repealed, it was by implication. Repeals by implication are not favored. In Board v. Garty, 161 Ind. 464, 68 N. E. 1012, it was said: "It is a familiar rule, and one universally affirmed by the authorities, that a repeal by implication is not favored. In accordance with this rule two or more acts on the same subject must, if possible, be so construed that both may be permitted to stand. It has been repeatedly affirmed by decisions of this court that implied repeals are only recognized and upheld when the latter act is so repugnant to the earlier as to render the repugnancy or conflict between them irreconcilable. A court will always, if possible, adopt that construction which, under the particular circumstances in a given case, will permit both laws to stand and be operative." In Lewis' Sutherland, Stat. Const. § 247, it is said: "When some office or function can by fair construction be assigned to both acts, and they confer different powers to be exercised for different purposes, both must stand. though they were designed to operate upon 1 Transfer denied. It was not necessary to the sufficiency of the affidavit to state therein that the crime charged was a first or a second or other subsequent offense. In the absence of an allegation concerning such matter, the crime charged would be assumed to be a first offense. Bishop, New Crim. L. § 959 et seq.; Kilbourn v. State, 9 Conn. 560; People v. Cook, 45 Hun, 34. See Good v. State, 61 Ind. 69. Judgment reversed, with instruction to overrule the appellee's motion to quash. (38 Ind. A. 637) COLLINS COAL CO. v. HADLEY. (No. 5,466.)1 (Appellate Court of Indiana, Division No. 2. June 29, 1906.) STATUTES-REPEAL BY IMPLICATION-REPUGNANT ACTS. A repeal by implication is only recognized when the latter statute is so repugnant to the earlier as to render the repugnancy irreconcilable. [Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 228, 229.] On rehearing. Petition overruled. WILEY, J. Appellee has asked for a rehearing and has supported her petition therefor by an able and ingenious brief. While 78 N.E.-23 * the same general subject. Woods v. Supervisors, 136 N. Y. 403, 32 N. E. 1011. The earliest statute continues in force unless the two are clearly inconsistent with and repugnant to each other, or unless in the latter statute some express notice is taken of the former plainly indicating an intention to repeal it; and where two acts are seemingly repugnant they should, if possible, be so construed that the latter may not operate as a repeal of the former by implication. These expressions of opinion are supported by numerous cases." In section 267, the same author, in speaking of this question, says: "If, by fair and reasonable interpretation, acts which are seemingly incompatible or contradictory may be enforced and made to operate in harmony and without absurdity, both will be upheld, and the later one will not be regarded as repealing the others by construction or intendment. As laws are presumed to be passed with deliberation and with a full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter unless the repugnancy between the two is irreconcilable. The act being silent as to repeal and affirmative, it will not be held to abrogate any prior law which can reasonably and justly operate without antagonism. A statute which does not take away any right, or impose any substantially new duty, but regulates with additional requirements a duty imposed by a previous statute, is not to be deemed inconsistent with the previous act. Two statutes are not repugnant to each other unless they relate to the same subject and are passed for the same purpose. 'It is a reasonable presumption that all laws are passed with a knowledge of those already existing, and that the Legislature does not intend to repeal a statute without so declaring.'" In section 273 of 273 of Lewis' Sutherland, is found the following: "A later law which is merely a re-enactment of a former does not repeal an intermediate act which has qualified or limited the first one, but such intermediate act will be deemed to remain in force, and to qualify or modify the new act in the same manner as it did the first. This is especially true if the intermediate law is special or particular, and the re-enacted law is a general law on the same subject. Where a law is substantially re-enacted it is said to show that the Legislature did not regard it as repugnant to an intermediate act to some extent covering the same subject." These declarations of the law, applicable to repeals, are abundantly sustained by the authorities, of which we cite the following: Powell v. King, 78 Minn. 83, 80 N. W. 850; State ex rel. v. Elko Co., 21 Nev. 19, 23 Pac. 935; Harrison v. Board, 117 Mich. 215, 75 N. W. 456; Co-operative S. Ass'n v. Fawick, 11 S. D. 589, 79 N. W. 847; Small v. Lutz (Or.) 67 Pac. 421; Bentley v. Adams, 92 Wis. 386, 66 N. W. 505; State ex rel. v. Beard (Nev.) 29 Pac. 531; McLaughlin v. Newark, 57 N. J. Law, 298, 30 Atl. 543; Olsen v. Haritwen, 57 Fed. 845, 6 C. C. A. 608; People v. Wenzel (Mich.) 62 N. W. 1038; Curbay v. Bellemer, 70 Mich. 106, 37 N. W. 911; Gazollo v. McCann, 63 Mo. App. 414; Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; Blain v. Bailey, 25 Ind. 165; Blumenthal v. Tibbits, 160 Ind. 70, 66 N. E. 159. In the last case cited it was insisted that section 17 (section 2484, Burns' Ann. St. 1901) of the act approved March 7, 1883 (Laws 1883, p. 158, c. 121), amending the decedent's act, repealed section 802, Burns' Ann. St. 1901, of the Civil Code, but the court held otherwise, and in the opinion said: "It is true that section 2484, supra, was enacted in 1883, while section 802, supra, was enacted in 1881; but section 2484 is substantially a re-enactment of section 151 of the decedent's act, enacted in 1881 (Acts 1881, p. 423, c. 45), and the presumption against a repeal under such circumstances is especially strong." In 1852 the Legislature passed two laws, one of which was special, exempting farm lands lying within the corporate limits of cities from municipal taxation, and the other general, giving cities power to collect an ad valorem tax on all property within their corporate limits. In 1857 the latter act was amended, but the section conferring power upon cities to collect taxes on "all property within such city" was re-enacted in precisely the same language. In Blain v. Bailey, Treas., etc., 25 Ind. 165, the question involved was whether or not the act of 1857 repealed by implication the special act of 1852, exempting farm lands within the corporate limits of a city from taxation. It was held that the special act was not repealed, and in the decision the court employed the following language: "While these two acts continued in force, they were, by the settled rules of. construction, to be so interpreted that both could have effect. This could be done by holding the particular cases mentioned in the exempting act to constitute exceptions to the general provisions of the other act, and we are not aware that any doubt was entertained upon that subject at that time. Now we cannot suppose that the Legislature, by reenacting a provision in the same language which was employed in a repealed statute, intended to impart to it a wider scope, or other meaning than that which the same words were previously intended to import, especially when the effect would be to accomplish what is not favored in the law-the repeal of another statute by implication. It is more reasonable to hold that the words have been employed in the same sense in which they had been used in the act repealed. The position that it was not intended to repeal the act in question is strongly confirmed by the fact that the act of 1857 (section 1, c. 33, p. 42, Laws 1857) expressly repeals several acts which undoubtedly would have been repealed by implication, but is entirely silent as to this act. Why was this? The Legislature must be presumed to have acted with deliberation, and with full knowledge of all existing acts upon the same subject. Again, the forty-second section (page 57) of the act of 1857 is a general statute, without negative words, while the exempting act of 1852 is particular. In such a case the rule is that there is no repeal by implication, unless it is absolutely necessary in order that the latter shall have any meaning at all"citing Dwarris, 674; Sedgwick on Stat. 123; Williams v. Pritchard, 4 T. R. 2. Endlich on Stat. Constr. § 370, says: "It is scarcely necessary to remark that, where the same language, which has received a certain judicial construction in an act, is used in an act amendatory of the same, it is presumed to have been used there in the same sense, and intended to be subject to the same construction." It is past understanding that the words "wrongful act or omission of another," in the act of 1899, supra, should have a wider scope, or a different meaning than they were construed to have had in the repealed statute. As we have seen, the amendatory act is a reenactment of the old statute, in precisely the same language, adding thereto one word "widower." In 1852 the Illinois Legislature passed a law giving a right of action for the death of a person by "wrongful act," etc., and provided that the action should be brought by the personal representative "of such deceased person." This statute is substantially like section 285 of our statute, except it does not include the widower, as a beneficiary. In 1874 the statute in its original form was reenacted. Rev. St. Ill. p. 582, c. 70. In 1872 the Illinois Legislature passed a law relating to mines, miners, etc. (Acts 1871-72, p. 568). Section 14 (page 574) of that act gave a right of action for death, "resulting from any willful violations of this act, or willful violation to comply with any of its provisions," and lodged such right of action "in the widow of the person killed, or his lineal heirs or adopted children, * * * dependent for support upon the person or persons killed." In Litchfield Coal Co. v. Taylor, 81 Ill. 590, the identical question involved here was presented for decision. In that case the action was commenced in the name of the administrator of the decedent. Subsequently the court permitted the declaration and summons to be amended by substituting the widow as plaintiff. There, as here, it was contended that the re-enactment of the general statute in 1874 repealed by implication section 14 of the mining act (Rev. St. 1874, c. 93), and hence the action could only be prosecuted in the name of the personal representative. In the course of the decision, the court said: "We are satisfied that the widow was the proper person to bring the action. The fourteenth section of the act expressly authorizes her to bring the suit. Chapter 70, entitled 'Injuries,' (Rev. St. 1874, p. 582), which authorizes an action in the name of the personal representatives, did not repeal the fourteenth section of the act entitled 'Miners.' The former act is general, while the act in relation to miners may be regarded as special, and the latter must control as to all cases specially enumerated in the act itself, while the other act, being general, would embrace all other cases"-citing Town of Ottawa v. Town of La Salle, 12 Ill. 339. While decided cases in other jurisdictions are not authorities binding upon courts in this jurisdiction, they are worthy of our consideration, and we are at liberty to follow them if we believe they properly declare the law. The case last cited is, we believe, a correct declaration of the law, and is in harmony with the general rule announced in the original opinion, and supported by the great weight of authority. The Counsel for appellee seek to parry the force of the decision in Couchman, Adm'r, v. Prather, 162 Ind. 250, 70 N. E. 240, cited in the original opinion, by saying that "it is not in point." We cannot agree with counsel, but, on the contrary, regard the question there involved and decided directly in point. facts upon which that case rested are so fully stated in the original opinion that we, will not advert to them farther. Counsel for appellee rely largely upon two cases, President, etc., R. R. Co. v. Bradshaw, 6 Ind. 146, and Pittsburgh, etc., Ry. Co. v. Burton, 139 Ind. 357, 38 N. E. 594, in support of their contention that the amendatory act of 1899 (section 285, Burns' Ann. St. 1901) repealed the thirteenth section of the mining act (section 7473, Burns' Ann. St. 1901), and by reason thereof urge that the amendatory act governs. In the Bradshaw Case two statutes passed at the same session of the Legislature were involved. These two statutes were upon the same subject-matter, and the question was: Did the latter repeal, by implication, the former? The substance of the first statute was that, whenever any person should die from injuries happening through the negligence of a railroad company, a right of action for damages should exist in favor of certain specified persons against such company. One of the beneficiaries named in this statute was the wife of the person so killed. Section 3, c. 88, p. 426, 1 Rev. St. 1852. Such right of action was limited by this statute against railroad companies. Thirty-eight days later the Legislature extended this right, making it general against all persons, natural and artificial, annexing, however, some modifications and limitations upon its exercise. Section 784, c. 1, p. 205, pt. 2, 2 Rev. St. 1852. This later act is identical with section 285, Burns' Ann. St. 1901, except that it limited the recovery to $5,000, and the "widower" was not named as a beneficiary. In considering the case, the court said: "The two acts quoted are upon the same subject-matter; that is, they both create a right of action in a successor, to be pursued by the same system of practice, in the same tribunals, for a tort committed upon a deceased person, and they must be considered together. The first, as we have said, gives the right of action in such cases against a railroad company; the second, against all persons. The first does not regard the question whether the deceased, if living, could have maintained the action for the same tort; the second does. The first gives the right of action to the widow or other relatives, as the case may happen, and gives the judgment recovered exclusively to the plaintiff in the suit; the second vests the right of action in the legal representative of the deceased and requires the proceeds of the judgment recovered to be distributed to the widow and heirs according to the general law of distribution of personal estate. The first makes no provision for the brothers and sisters and remoter relatives of a deceased miner killed upon a railroad; the second does. The first does not limit the time in which suit may be brought; the second does. The first does not limit the amount of damages that may be recovered; the second does. The second is more comprehensive than the first, covering the whole ground occupied by it, and more. The two are utterly inconsistent in their provisions and cannot both be enforced; the latter is much the more reasonable and judicious law, is more in harmony with general principles, furnishes an ample remedy, and, we think, repeals the former." Counsel for appellee say that "No distinction can be drawn between the above case and the one at bar." There is a clear and marked distinction. In the Bradshaw Case the court had under consideration two statutes passed at the same session of the Legislature, and both acts related to the same subject-matter. In the case we are considering the two statutes are essentially different. Section 7473, supra, created a new right of action growing out of violations of the mining act, and made ample provision for asserting and enforcing such new right, and designated the persons who became beneficiaries thereunder. The amendatory act of 1899, supra, supplies a general procedure, by vesting in the personal representative of a decedent, who died from the wrongful act or omission of another, where such act or omission is made wrongful by statute, provided such statute makes no provision for its enforcement, or where an action is founded upon an act which created a common-law right of action. duties imposed, and provided that in case of death the recovery should be limited to $5,000. Acts 1879, p. 173, c. 77; section 4020 et seq., Rev. St. 1881. In 1881 the general act providing for the recovery of damages for "the wrongful act or omission of another" was amended, fixing the amount of recovery at $10,000, instead of $5,000. Acts 1881, p. 241, c. 38; Rev. St. 1881, § 284. It was held that the limiting clause of section 4, c. 77, p. 174, of the act of March 29, 1879, supra, fixing the amount of recovery at $5,000, was repealed by the amendatory act of 1881, supra. It is our conclusion that the original opinion is not in conflict with the rules declared in the two cases we have just viewed, but, on the contrary, is in harmony with the great weight of authority. Petition for rehearing overruled. (39 Ind. App. 193) BOARD OF COM'RS OF JACKSON COUNTY V. BRANAMAN. (No. 5,610.)1 (Appellate Court of Indiana. June 29, 1906.) On rehearing. Denied. For former opinion, see 76 N. E. 1030. PER CURIAM. The petition for a rehearing is overruled. ROBY, J. (dissenting). This suit is brought by appellee as a taxpayer to enjoin the board of county commissioners from using public funds in defending an action theretofore brought against said board on a written contract made by it for the construction of certain free gravel roads in accordance with an act approved March 3, 1893 (Acts 1893, p. 196, c. 112), and an amendatory act thereto, approved March 7, 1895 (Acts 1895, p. 143, c. 63). It is averred that said board is made a party to said pending action as the enforced agent and custodian of certain funds derived from the sale of bonds, and in no other capacity, that no judgment is therein sought against said county or any fund belonging to said county, but that the relief sought is solely against the fund derived from the sale of bonds for a taxing district and to have the same applied upon the payment of the costs of improvements made therein. The indebtedness created by the construction of a road under said act is not the indebtedness of the county, but is the indebtedness of the persons assessed for its construction. King v. Board of Commissioners, etc. (Ind. App.) 72 N. E. 616. The county is not liable for the cost of constructing the road. King v. Board of Commissioners, etc., supra. When the contract is performed by the completion of the road, the law enjoins the duty upon the board of commissioners of receiving the same and directing the auditor to issue the warrant, upon which finally payment is made, and mandamus is a proper remedy to compel the performance of said duty. King v. Board of Neither is the case of Pittsburg, etc., Ry. Co. v. Burton, supra, in point, which will readily appear from a reference to the question there involved. In 1879 the Legislature passed a law requiring that engine whistles on locomotives should be sounded distinctly three times, not less than 80 rods from any highway crossing, and to ring the bell continuously, etc. The same act provided that damages might be recovered for injuries, or death, resulting from a violation of the 1 See 79 N. E. 923. Rehearing denied. Superseded by opinion in Supreme Court, 82 N. E. 65. Commissioners, etc., supra. It irresistibly follows from these premises that the expense of defending an action on a contract made in pursuance of said statute is not one which ought to be paid out of the general county fund, or for which the county is responsible. The expense thus incurred is a part of the cost of the proceeding and should be paid out of the special fund provided for the purpose of paying the costs of the improvement. It will not do to say that the county may subsequently reimburse itself by filing a claim against the special fund. Whether it may do so or not is immaterial, it not being, in the first instance, under any obligation to make the outlay. Whatever conclusion has arisen in this case arises from the fact that the plaintiff, who sues as a taxpayer, is also the contractor, seeking in a different capacity and in another suit to enforce his contract, and from the further fact that the special agent against whom the action is brought is in another capacity the representative of the county. If the action was brought by a taxpayer who was in no wise connected with the contract, and if it was brought against a special agent who was not a representative of the county, there would be no confusion as to rights and liabilities. The board, as the agent of the persons benefited by the improvement, has authority to direct the auditor to draw his warrant for the incidental expenses of constructing such road as well as to direct him to draw his warrant for the contract price, and there is therefore no question of preventing the board from defending the pending action or of restricting its available means of making such defense. It follows that the petition for rehearing should be granted and the judgment affirmed. Where a transcript on appeal with the proper assignments of error is filed within the time limited for the taking of an appeal, the appeal is thereby perfected without the service of notice on appellees. [Ed. Note.-For cases in point. see vol. 2, Cent. Dig. Appeal and Error, § 2099.] 2. SAME-BRIEFS. Where the only brief filed by appellant contains less than one page of typewritten matter and does not in any way comply with the rules respecting the filing of briefs, and the brief fails to present any question for review, the appeal will be dismissed. [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3108.] Appeal from Circuit Court, Lake County; H. S. Barr, Special Judge. Suit by the state, on relation of Charles W. Miller, Attorney General, against Fredericka Niemitz and others, to quiet title. A decree was rendered in favor of plaintiff, and defendants appeal. Case transferred from Supreme Court under Act March 12, 1901. On motion to dismiss appeal. Granted. Thos. J. Wood, for appellants. H. M. Dowling, O. W. Miller, W. C. Geake, and C. C. Hadley, for appellee. ROBINSON, C. J. Suit by appellee to quiet title. Upon issues formed a decree was entered in appellee's favor, from which appellant appealed. Appellee moves to dismiss the appeal on the ground that it was not perfected within a year from the date of the judgment. Appellant's attorney, on June 16, 1906, acknowledged service of notice that the motion to dismiss would be heard by this court on June 22, 1906, or as soon thereafter as the same could be heard by the court. This is a vacation appeal. The judgment was entered December 8, 1904. The transcript, with the assignment of errors, was filed in the office of the clerk of this court December 7, 1905. No notices of any kind were issued until about 60 days after the transcript was filed, the indorsement on the transcript reciting "1906 Feby. 7. Notice and proof of service to attorney of record and clerk, Feby. 6, 1906." It does not appear from the transcript and its indorsements that any attempt was made to have notice issued or served until in February 1906. In Tate v. Hamlin, 149 Ind. 94, 41 N. E. 356, it is said: "It is also well settled by the decisions of this court that the filing of the transcript with a proper assignment of error thereon within the time limited for taking an appeal perfects the appeal without the service of notice on the appellees." Citing Harshman v. Armstrong, 43 Ind. 126; Johnson v. Stephenson, 104 Ind. 368, 4 N. E. 46; Wright v. Manns, 111 Ind. 422, 12 N. E. 160. This case distinguishes the case of Holloran v. Midland, etc., Ry. Co., 129 Ind. 274, 28 N. E. 549, on the ground that the notice in the Holloran Case was to a co-party and not to an appellee. In Bank of Westfield v. Inman, 133 Ind. 287, 32 N. E. 885, the judgment was rendered December 5, 1891, and the transcript, with assignment of errors, was filed July 16, 1892, on which day a notice was issued and served on the 18th day of the month. No notice was issued or served upon the other appellee prior to the filing of the motion to dismiss the appeal nor was an appearance entered for him. On December 7, 1892, the motion to dismiss was filed and on the next day the clerk issued a notice to the other appellee. The court said: "If this appeal stood alone upon the transcript and its indorsements, we would be compelled to sustain the motion to dismiss." To the same effect is Coburn v. Whitaker, etc., Co., |