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It was contended by the drainage commis- without the consent of a city to make and sioners that section 40 of the farm drainage enforce payment of assessments made for act (Hurd's Rev. St. 1905, c. 42, § 114) au- street benefits resulting from the constructhorized the assessment. That section pro- tion of the work, it could only be done by vides that, if in the construction of the work compelling the city, in some appropriate ac"any public highway or railroad” would be tion for that purpose, to levy and collect benefited thereby, the commissioners should a tax for its payment. No provision is made have the power to assess “to such public road for any such thing being done in section 55 or railroad such sum or sums as will be just or any other section of the levee act. The and equitable for such public road or railroad mention of certain public roads in the act. to pay, in proportion to the benefits received, and the provisions made for the collection
and the sum found to be the benefit of assessments made against them, and the to the railroad or public road shall express
failure to mention streets of a city or village the proportional part of the corporate taxes or to provide any means for the collection of of the district to be paid by such railroad
assessments if made against such streets, or public road, as the case may be.
preclude the construction that the drainage The amount of such' road tax shall be paid commissioners had any authority to assess out of the road and bridge tax of the town benefits to the public streets of the city of or the district in which the public highway | Joliet, over its objections. or part benefited lies." In discussing that The judgment of the county court is reverssubject the court said (page 492 of 217 Ill., ed, and the cause remanded to that court for page 518 of 75 N. E.): "The argument of further proceedings in harmony with the the plaintiffs in error is that the word 'high
views herein expressed. way' is the generic name for all kinds of Reversed and remanded. public ways, including streets and alleys, and that the word as employed in said sec
(167 Ind. 199) tion 40 should be given that meaning, and the section held to empower the commission
STATE V. DORSEY. (No. 20,773.) ers of a drainage district, if the construc
(Supreme Court of Indiana. Oct. 12, 1906.) tion of the ditches of the district shall bene- 1. STATUTES-CONSTRUCTION-RE-ENACTMENT fit the streets or alleys of any village, to
OF STATUTE JUDICIALLY CONSTRUED.
Acts 1899, p. 171, c. 110, § 4 (Burns' Ann. assess against such village such amount as
St. 1901, § 5592), provides that no bid for any will be just and equitable to be paid for county work shall be received unless the bids the benefits so conferred on the streets and are accompanied by an affidavit of noncollusion,
the statute being a substantial re-enactment of alleys by the work of the district. The
Sp. Acts 1877, p. 29, c. 9 (Rev. St. 1881, $ words 'public highway and the words 'pub- 4246). Held that, the Supreme Court having lic road' are used in section 40 as though held, prior to the enactment of the act of 1899,
that a board of county commissioners in coninterchangeable in meaning, and the section
structing a free gravel road were engaged in a provides that the sums assessed for benefits
"county work” within the meaning of the act of to such public highway or public road shall 1877, such construction applies to the act of be paid out of the road and bridge tax of
1899. the town or district in which the same, or
[Ed. Note. For cases in point, see vol. 44,
Cent. Dig. Statutes, § 311.) the part benefited, lies. Hence it is plain
2. SAME-SUBJECTS AND TITLES-HIGHWAYS. that the words 'public highways' were in
Inasmuch as Acts 1899, p. 171, c. 110, retended to mean public roads—not the streets quiring the filing of an affidavit of noncollusion or alleys of a city or village and that the with any bid for the building of a courthouse benefits authorized to be assessed as com
or other "county work," applies by previous
judicial construction, to the construction of a pensation to the drainage district for bene
free gravel road by the board of commissionfits conferred by its ditches or drains were ers, and the statute is entitled “An act to proto be assessed and paid, as the statute ex
vide for the letting of contracts for the build
ing of courthouses, jails, county or township pressly provides, 'out of the road and bridge
buildings, bridges, and monuments," the requiretax,' and not out of the funds of any city ment of an affidavit from a bidder for the conor village.”
struction of a free gravel road is void, as violaNowhere in section 55 of the levee act are
tive of Const. art. 4, § 19, as not expressed in
the title or matter properly connected therestreets of an incorporated village or city with. mentioned, and the provisions made by said [Ed. Note.-For cases in point, see. vol. 44, section for the collection of the assessments Cent. Dig. Statutes, 103.] made against “public roads” or “township roads,” if it were otherwise doubtful wheth
Appeal from Circuit Court, Vigo County; er they were intended to be included in the
Jas. E. Piety, Judge. act, make it clear there was no such in
William Dorsey was prosecuted for pertention. If assessments of benefits are made,
jury, and from a judgment quashing the inthey cannot be taxed against the streets as
dictment, the state appeals. Affirmed. in cases of other property, for such other C. W. Miller, Atty. Gen., W. C. Geake, C. property may be sold upon a failure to pay C. Hadley, H. M. Dowling, and Jas. A. Coopthe assessinents. Clearly streets could not er, for the State. Sam'l R. Hammil, for apbe sold for such purpose. If authority exists pellee.
MONKS, J. Appellee was charged by indictment with the crime of perjury in making an affidavit required by law in violation of section 2093, Burns' Ann. St. 1901. The indictment was in nine counts, each of which, on motion of the appellee, was quashed. Final judgment was rendered in his favor.
The assignment of errors calls in question the action of the court in sustaining the 100tion to quash as to each count of the indictment. Each count charged that the alleged perjury was committed by the appellee in making an affidavit of noncollusion, as required by the law of the state, as bidder for the construction of a free gravel road, under the act of 1901 (Acts 1901, pp. 449-460, c. 205, being sections 6899-6913, Burns' Ann. St. 1901), and the act amending the same (Acts 1903, p. 294, c. 164), in a proceeding before the board of conimissioners of Vigo county, Ind. It is claimed by the state that the affidavit made by appellee was required by the provisions of sections 37, 42, of the act entitled “An act concerning county business,' commonly called the "County Reform Act" (Acts 1899, p. 357–361, c. 154, being sections 5594q1-5594v1, Burns' Ann. St. 1901). It was provided in said section 37 "that in all cases in which the board of county commissioners are now or may hereafter be authorized by law to contract for the execution of any public undertaking" said board should, among other things, cause proper plans, models, etc., of the proposed work, to be prepared and filed in the office of the auditor of the county, and cause notice to be given inviting sealed proposals for doing such work; if the cost of the work did not exceed $2,000, such notice should be published once each week in two newspapers published in the county; but if the cost of such work exceeded $2,000, such publication should be for two weeks in such newspapers; and it was also provided “further publication may also be nade when deemed for the public interest." By section 42 it was provided: "In all cases where any county officer is authorized by this act to receive bids for any purpose, each bidder shall file with his bid, an af. fidavit that he has not entered into any combination, collusion, or agreement with any person relative to the price to be bid by any one at such letting, nor to prevent any person from bidding, nor to induce any person to refrain from bidding, and that his bid is made without any reference to any other bid and without any agreement, understanding or combination with any other person in reference to such bidding. The officer or officers receiving such bids for the purpose of such letting shall reject any collusive bid, if such collusion shall come to his or their notice before the letting. If the same shall come to his or their notice after the letting and it shall appear that the successful bidder has been guilty of such collusion as herein required to be denied in such affidavit,
such successful bidder shall forfeit his contract, the same shall be relet."
It will be observed that said section 42 (5594v1), supra, of the county reform act only requires the affidavit of noncollusion mentioned therein in cases “where the county officer is authorized by this act to receive bids for any purpose.” There is nothing in said section 37 (5594q1), supra, of the county reform act which authorizes the board of county commissioners to receive bids. That section only provides for the kind of notice that shall be given asking for bids and as to the filing of plans and specifications, etc., in the auditor's office. Boards of commissioners were authorized to receive bids for the construction of gravel roads under said act of 1901, supra, by section 3 of said act (Acts 1901, p. 453, c. 205), and not by section 37 of the county reform act as claimed by the state. Section 5592, Burns' Ann. St. 1901, being section 4 of an act approved February 27, 1899 (Acts 1899, pp. 171, 172, c. 110), provides that "no bid for the building or repairing of any courthouse, jail, poor asylum, bridge or other county building or work shall be received or entertained by the board of commissioners of any county in this state unless such bids shall be a&companied by an affidavit of noncollusion and a bond for the faithful performance and execution of said work and the payment of all debts incurred by the contractor in the prosecution of said work.” This section was, with the exception of the affidavit of noncollusion, a substantial re-enactment of section 1 of the act approved March 14, 1877 (Sp. Acts 1877, p. 29, c. 9, being section 4246, Rev. St. 1881). The last-named act provided that "no bid for the building or repairing of any courthouse, jail, poor asylum, bridge, fence or other county building or work, shall be received or entertained by the board of commissioners of any county of this state unless such bid shall be accompanied by a good and sufficient bond, etc."
It is a settled rule of statutory construction that when a statute or a part of a statute has been construed by the court of last resort in a state, and the same is substantially re-enacted, the Legislature adopts such construction unless the contrary is shown by the language of the act. Board of Com’rs v. Conner, 155 Ind. 484, 496, 58 N. E. 828, and authorities cited. Brown v. Miller, 162 Ind. 684, 686, 687, 71 N. E. 122; National Supply Co. v. Stranahan, 161 Ind. 602, 608, 69 N. E. 447; Jarvis v. Hitch, 161 Ind. 217, 219– 222, 67 N. E. 1057; Desgain v. Wessner, 161 Ind. 205, 206, 207, 67 N. E. 991; Thacher v. Chicago, etc., Ry. Co., 159 Ind. 82, 89, 90, 64 N. E. 605, 59 L. R. A. 792, and cases cited. It was uniformly held by this court before the enactment of said section 4 of the act of 1899, being section 5592, Burns' Ann. St. 1901, that the board of commissioners in constructing a free gravel road under the laws of this state is engaged in a county anrk
within the meaning of said act of March 14, 1877, being section 4246, Rev. St. 1881, supra. State v. Sullivan, 74 Ind. 121, 124–126; Dewey v. State, 91 Ind. 173, 181; Faurote v. State, 110 Ind. 463, 465, 466, 11 N. E. 472. It is evident, under the authorities cited, that the construction given said act of March 14, 1877, being section 4246, Rev. St. 1881, in State v. Sullivan, supra, and other cases decided before said section 4 of the act of 1899, being section 5592, Burns' Ann. St. 190i, was passed, was adopted by the Legislature in adopting said last-named section. An examination of the title of said act of 1899 (Acts 1899, p. 170, c. 110) discloses the fact that the safeguards provided by said act, as expressed by said title, only apply to the “letting of contracts for the building of courthouses, jails, county or township buildings, bridges and monuments."
It is clear that while the construction of free gravel roads by boards of commissioners under the laws of this state is a "county work,” yet such work is neither the building of a courthouse, jail, county or township building, bridge or monument and does not come within the meaning of any of the kinds of work mentioned in said title nor is it a "matter properly connected therewith.” Any provision, therefore, in said section 4 of said act requiring an affidavit and bond from a bidder before filing his bid for any other county work than that mentioned in said title is void under section 19 of article 4 of the state Constitution. It follows that the part of said section 4 which requires the affidavit of noncollusion and bond from bidders for the construction of "county work," which, as we have shown, includes the construction of free gravel roads, is void because the subject thereof is not expressed in the title nor is it a "inatter properly connected therewith" as required by said section of the state Constitution. Mewherter v. Price, 11 Ind. 199; Dixon v. Poe, 159 Ind. 492, 494, 495, 65 N. E. 518, 60 L. R. A. 308, 95 Am. St. Rep. 302; Voss v. Water Co., 163 Ind. 69, 92, 71 N. E. 208, 66 L. R. A. 95, 106 Am. St. Rep. 201.
It is evident that the affidavit of noncollusion filed by appellee was not required by law, and that the court did not err in sustaining the motion to quash the same. Judgment affirmed.
2. APPEAL-SEPARATE ASSIGNMENTS OF ERROR--SEPARATE RULINGS AND EXCEPTIONS.
A demurrer to a complaint by several defendants, after setting out the names of all the defendants as the demurring parties, recited, "Each separately and severally demurs * and for cause of demurrer says.' The order overruling the demurrer recited that thereupon "the court overrules the separate demurrer by each of the defendants to the complaint, to which ruling of the court the defendants except." Held, that the ruling on the demurrer and the exceptions were separate and not joint, and were therefore properly presented on appeal by separate assignments of error. 3. SAME-REVIEW-IDENTIFICATION OF QUESTION.
In identifying a question presented for review on appeal, the rules of procedure must be strictly construed. 4. SANE-EXCEPTIONS—CONSTRUCTION.
Where two or more persons desire to take the same step in an action, but to act separately, and for convenience unite in presenting one paper, and the court by a single action rules against all, the exceptions to the ruling as recorded by the clerk should be liberally construed, with a view of according an appropriate exception to each exceptor, which should be al. lowed unless clearly incompatible with the appeal record. 5. WILLS--ELECTION BY WIDOW-PRESUMPTION.
Under Burns' Ann. St. 1901, § 2660, authorizing a widow to elect whether she will take under the will or her statutory estate, a widow will be presumed to have elarted to take under the will, unless she files her election to take under the law with the clerk within a year from the date of the probate of the will.
[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, $ 2060.] 6. SAME-ELECTION-VACATION-FRAUD.
Complainant, a wonian of advanced years, at the death of her husband, alleged that, after the probate of his will, by which she was given all his estate, his daughter and her husband, who was a lawyer, induced her to come to their home, where, at a meeting attended by the judge of the circuit court, she was advised, both by the judge and the daughter's husband, that the will was void for her husband's want of testamentary capacity, and that it was advisable therefore that she should file her election to repudiate the will and take under the law; that after she was induced to do this two-thirds of her husband's real estate was sold by the administrator and purchased by the daughter, who afterwards induced complainant to convey the other third in consideration of a contract for support, after which complainant ascertained that the will was not void, and that the representations made to her were false. Held, that the complaint stated a cause of action to avoid the election. 7. JUDGMENTS-RES JUDICATA-ISSUES CONCLUDED.
Where two or more defendants make issues with the plaintiff, a judgment determining such issues in favor of the defendants settles between them no fact that might have been, but was not, put in issue by a proper pleading. 8. SAME.
Complainant having been induced by fraud to repudiate her husband's will, the administrator filed a petition, alleging such election, to sell an undivided two-thirds of the husband's land to pay debts. This petition was filed within three months after the will was probated, during which complainant had an absolute right to rescind her election. Not knowing of the fraud, she admitted her election and raised no issue as between herself and codefendants, whereupon the property was sold
(167 Ind. 602) WHITESELL et al. v. STRICKLER et al.1
(No. 20,937.) (Supreme Court of Indiana. Oct. 9, 1906.) 1. PLEADING-DEMURRER BY Two OR MORE PARTIES.
Where two or more parties desire to demur separately to the same pleading on the same ground, each is not required to file a separate paper, but they may all act separately in demurring and yet unite in the same paper.
[Ed. Note.--For cases in point, see vol. 39, Cent. Dig. Pleading, $ 461.)
1 Rehearing denied.
as prayed. Held, that such order was not res 153), complainants appeal. Judgment of cirjudicata of complainant's right to set aside cuit court affirmed. her election for fraud. 9. ESTOPPEL-RIGHTS OF WRONGDOERS.
Sam'l C. Whitesell, Downing & Hough, and Complainant, after the death of her husband, was fraudulently induced by E. to repu
Robbins & Starr, for appellants. B. F. Mason diate the husband's will and take under the law.
and Thos. J. Study, for appellees. Immediately thereafter two-thirds of the husband's real estate was sold to pay debts and purchased by E., who thereafter induced com
HADLEY, J. Amos Strickler died testate plainant to convey the other third to her in in Wayne county, Ind., October 23, 1899. He consideration of a contract for support, after executed his will on the 10th day of March, which E., relying on such conveyances, ex- 1889. On November 6, 1899, the will was pended $2,000 for repairs and betterments on the property. Held that, as between complain- proven, admitted to probate, and was duly ant and E., the latter, by reason of such expend- recorded. By the terms of his will, after iture, etc., was not entitled to claim that com
providing for the payment of all his debts, he plainant was estopped to set aside her election for fraud.
bequeaths to his widow, the appellee Eliza10. WILLS-ELECTION-RESCISSION LIMITA
beth Strickler, all of his estate, both real and TION-LACHES.
personal. The value of the estate thus beA suit by a widow to rescind her election
queathed was about $10,000. Besides his to take under the law for fraud may be brought at any time within six years, provided she
widow, he left, as his only heirs, the appelgives a sufficient excuse for laches.
lants Elmira J. Whitesell, his daughter, 11. SAME-LACHES.
Minos Strickler, his son, and Russell StrickWhere, at the time a widow was induced
ler, his grandson. After the probate of the by her son-in-law and the circuit judge to
will the widow elected to renounce the will elect to rescind her husband's will and take under the law, she was urged not to tell any
and take under the statute. The appellant one of the meeting, or what had been said to Henry C. Starr was thereupon appointed adher by the judge or any party in his presence ministrator of the estate, gave bond, and proconcerning her husband's want of testamentary capacity, or the invalidity of the will, and she
ceeded to the settlement of his trust, and has did not learn that such representations were
converted all of the estate, both real and false until a few weeks prior to the commence- personal, into cash, and has the proceeds ment of her suit to set aside such election, the
thereof, less expenses, etc., in his possession. suit having been brought within the general statutory period of limitations, complainant's
The widow, who was the plaintiff below, laches were sufficiently excused.
brought this action to set aside her election 12. JUDGES-DE FACTO JUDGES-OBJECTIONS- to take under the statute, to the end that she WAIVER.
might take under the will. She bases her Where defendant appeared before a special judge, and after the granting of a change
right to maintain the action upon the false of venue demurred to the complaint and excepted and fraudulent representations made by the to the overruling thereof, without objecting appellees Elmira J. Whitesell and her husthat such special judge was improperly appointed, he waived his right thereafter to raise such
band, Samuel C. Whitesell, and the judge of objection.
the Wayne circuit court. The prayer of the [Ed. Note. For cases in point, see vol. 29, complaint is that appellee's said election to Cent. Dig. Judges, $ 65.]
reject the will and take under the statute be 13. COSTS-PERSONS LIABLE-APPORTIONMENT. canceled and set aside, and that the adminis
In a suit by a widow to set aside her trator of the estate be ordered and directed election not to take under her husband's will, the only issue tendered by the complaint was
to pay to her all of the money in his hands the alleged fraud of E. and W. No fraud or after the payment of debts and costs of adwrongdoing was charged against any other ministration. All of the heirs of the deceddefendant, and the administrator was but a
ent, the administrator of the estate, and the nominal party. Held that, on plaintiff being successful, it was proper for the court to adjudge
husband of Elmira J. were made parties decosts against defendants E. and W. only, under fendant, and appeared to the action, and all Code, 8 603, providing that where there are
demurred to the complaint. The demurrer to ed according to the judgment rendered on the issue.
thereof and the names of the demurring par[Ed. Note.-For cases in point, see vol. 13, ties is in the following words: “Each Cent. Dig. Costs, $$ 394 396.)
separately and severally demurs to the plain14. SAME.
tiff's complaint, and for cause of demurrer Under Code, 8 603, providing for an ap- says that said amended complaint does not portionment of costs, where there are several defendants, according to the judgment rendered
state facts sufficient to constitute a cause of on the issue, if one of several defendants make
action." The record shows that the "court a separate issue, which is declared against him, overrules the separate demurrer by each of he is liable for the costs.
the defendants to the amended complaint, [Ed. Note. For cases in point, see vol. 13,
to which ruling of the court the Cent. Dig. Costs, $$ 394-396.]
defendants object and except." All of the Appeal from Circuit Court, Hancock Coun- defendants below, except Minos O. Strickler, ty; E. W. Felt, Judge.
filed answers. A demurrer was addressed to Action by Elizabeth Strickler and others each affirmative paragraph and each of said against Elmira J. Whitesell and others. demurrers was sustained. All of the defend From a judgment in favor of complainants, ants who appeared to the action thereupon reversed by the Appellate Court (73 N. E. , withdrew their respective answers of general
several defendants the costs shall be apportion the complaint, omitting the formal parts
denial and elected to stand upon the affirma appeal is allowed by the statute solely for tive answers. The defendant Minos 0. the correction of errors of the trial court. Strickler, who is made an appellee here, was The assignment of error is termed the comduly defaulted. There was then a finding plaint in this court, and must be consistent, and judgment for the plaintiff, setting aside and correctly and specifically present to the her election to take under the law.
court, in manner and form as presented to 1. It is earnestly contended by counsel for the lower court, the particular rulings and appellee that, under the exceptions reserved subject-matter thereof, as shown by the recto the rulings on the demurrers to the com ord to have been made, and excepted to. plaint, and the several assignments of error As a joint complaint in the trial court must be thereon, no question upon the demurrers is good as to all who join or good as to none, presented for decision, because the record so a joint assignment must be erroneous as discloses separate assignments of error based to all or it will be held so as to none. Orton upon joint exceptions. The assignments on v. Tilden, 110 Ind. 131, 10 N. E. 936, and cases the ruling upon the demurrers to the com cited. Likewise a separate assignment, plaint, as made, are separate and not joint. founded upon a joint ruling against one or It will be noticed from the above quotation more appellants, presents no question to this from the record that the exception reserved court. Green v. Heaston, 154 Ind. 130, 56 N. was, as termed, "by the defendants." From E. 87, and cases cited. It is the same questhe nature of the proceedings up to this tions that were ruled upon by the trial court, point, we think it is misleading and improper presented here in the same way, that are reto construe the plural pronoun employed by viewable on appeal. In identifying the questhe clerk in recording the minute, as char tion appealed, it is plain that the rules of acterizing the act of the defendants as being procedure should be strictly construed, in joint. When two or more parties desire to fairness to the trial court, if for no better demur separately to the same pleading, on reason, but, as in this case, when two or more the same ground, the law does not require persons desire to take the same step, but to each to file a separate paper. If they choose, act separately, and for convenience unite in all may act separately in demurring, and yet | presenting one paper, and the court by a unite in the same paper, provided it is clear. single action rules against all, the exceply stated therein that they act severally and tions to the ruling as recorded by the not jointly. The demurrer under considera clerk, should be liberally construed with a tion, after setting forth the names of all the view of according an appropriate exception defendants as demurring parties, proceeds, to each exceptor. And such exception "each separately and severally demurs should be allowed unless clearly incompat
and for cause of demurrer says” ible with the record. When an appellant and, etc. Not only do they employ the dis excepts to a ruling for the purpose of pretributive word “each” and the singular verbs senting it to a court of review, it should at “demurs" and "says,” but the association of least be presumed that his exception was these with the
the words "separately” and intended to be in the capacity and relation "severally" make it too plain for argument that would make it effective. The assignthat the paper was intended to be, and in fact ment of error predicated upon the ruling was, the several demurrer of each of the de on the demurrers to the complaint are sevfendants. It was so understood by the courts, eral, and we think the same are supported for the record goes on, "and thereupon the by proper exceptions reserved at the trial. court overrules the separate demurrer by Our holdings on exceptions reserved to ruleach of the defendants to the complaint, to ings on demurrer to the complaint in Noonwhich ruling of the court the defendants ex an v. Bell, 159 Ind. 329, 64 N. E. 909, and cept." What ruling is here referred to as re Southern Indiana R. R. Co. v. Harrell, 161 served? Certainly no other than that de Ind. 689, 68 N. E. 262, 63 L. R. A. 460, while scribed immediately preceding. It could have perhaps the logical result of prior rulings been no other, because the record shows there if pressed to an extreme, appear to us, on was no other ruling on demurrer to the com further consideration, as too restricted and plaint. That ruling, though a separate act, the same are now disapproved. and in a sense in gross, is as clearly distrib 2. Was the complaint sufficient? It counts utive in effect as if the court had repeated upon fraud and undue influence of the deand announced separately the ruling against fendants Whitesell and Whitesell and the each of the six demurrants; and, the defend judge of the Wayne circuit court, whereby ants all being severally, though in the same the plaintiff was induced to renounce the way, affected by the ruling, we see no reason provisions made for her by the will of her dewhy they might not unite in reserving sever ceased husband, and in lieu thereof accept al and appropriate exceptions. Stametz v. her portion of her husband's estate under the Mitchenor, 165 Ind. 672, 75 N. E. 579. Fur law. It was held in Garn v. Garn, 135 Ind. thermore, under these facts, we think the 689, 35 N. E. 394, that the policy of the law words "defendants except" mean the same of this state has ever been to deal liberally as if the clerk had written "each of the de with widows in the distribution of her husfendants except," which without any ques band's estate. In harmony with this doction should be construed distributively. An trine the statute guaranties to a widow the