* * *

* *

It was contended by the drainage commissioners that section 40 of the farm drainage act (Hurd's Rev. St. 1905, c. 42, § 114) authorized the assessment. That section provides that, if in the construction of the work "any public highway or railroad" would be benefited thereby, the commissioners should have the power to assess "to such public road or railroad such sum or sums as will be just and equitable for such public road or railroad to pay, in proportion to the benefits received, and the sum found to be the benefit to the railroad or public road shall express the proportional part of the corporate taxes of the district to be paid by such railroad or public road, as the case may be. The amount of such road tax shall be paid out of the road and bridge tax of the town or the district in which the public highway or part benefited lies." In discussing that subject the court said (page 492 of 217 Ill., page 518 of 75 N. E.): "The argument of the plaintiffs in error is that the word 'highway' is the generic name for all kinds of public ways, including streets and alleys, and that the word as employed in said section 40 should be given that meaning, and the section held to empower the commissioners of a drainage district, if the construction of the ditches of the district shall benefit the streets or alleys of any village, to assess against such village such amount as will be just and equitable to be paid for the benefits so conferred on the streets and alleys by the work of the district. The words 'public highway' and the words 'public road' are used in section 40 as though interchangeable in meaning, and the section provides that the sums assessed for benefits to such public highway or public road shall be paid out of the road and bridge tax of the town or district in which the same, or the part benefited, lies. Hence it is plain that the words 'public highways' were intended to mean public roads-not the streets or alleys of a city or village-and that the benefits authorized to be assessed as compensation to the drainage district for benefits conferred by its ditches or drains were to be assessed and paid, as the statute expressly provides, 'out of the road and bridge tax,' and not out of the funds of any city or village."

Nowhere in section 55 of the levee act are streets of an incorporated village or city mentioned, and the provisions made by said section for the collection of the assessments made against "public roads" or "township roads," if it were otherwise doubtful whether they were intended to be included in the act, make it clear there was no such intention. If assessments of benefits are made, they cannot be taxed against the streets as in cases of other property, for such other property may be sold upon a failure to pay the assessments. Clearly streets could not be sold for such purpose. If authority exists

without the consent of a city to make and enforce payment of assessments made for street benefits resulting from the construction of the work, it could only be done by compelling the city, in some appropriate action for that purpose, to levy and collect a tax for its payment. No provision is made for any such thing being done in section 55 or any other section of the levee act. The mention of certain public roads in the act. and the provisions made for the collection of assessments made against them, and the failure to mention streets of a city or village or to provide any means for the collection of assessments if made against such streets, preclude the construction that the drainage commissioners had any authority to assess benefits to the public streets of the city of Joliet, over its objections.

The judgment of the county court is reversed, and the cause remanded to that court for further proceedings in harmony with the views herein expressed.

Reversed and remanded.

(167 Ind. 199)

STATE v. DORSEY. (No. 20,773.) (Supreme Court of Indiana. Oct. 12, 1906.) 1. STATUTES-CONSTRUCTION-RE-ENACTMENT OF STATUTE JUDICIALLY CONSTRUED.

Acts 1899, p. 171, c. 110, § 4 (Burns' Ann. St. 1901, § 5592), provides that no bid for any county work shall be received unless the bids are accompanied by an affidavit of noncollusion, the statute being a substantial re-enactment of Sp. Acts 1877, p. 29, c. 9 (Rev. St. 1881, § 4246). Held that, the Supreme Court having held, prior to the enactment of the act of 1899, that a board of county commissioners in constructing a free gravel road were engaged in a "county work" within the meaning of the act of 1877, such construction applies to the act of 1899.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, § 311.]

2. SAME-SUBJECTS AND TITLES-HIGHWAYS. Inasmuch as Acts 1899, p. 171, c. 110, requiring the filing of an affidavit of noncollusion with any bid for the building of a courthouse or other "county work," applies by previous judicial construction, to the construction of a free gravel road by the board of commissioners, and the statute is entitled "An act to provide for the letting of contracts for the building of courthouses, jails, county or township buildings, bridges, and monuments," the requirement of an affidavit from a bidder for the construction of a free gravel road is void, as violative of Const. art. 4, § 19, as not expressed in the title or matter properly connected therewith.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, § 103.]

Appeal from Circuit Court, Vigo County; Jas. E. Piety, Judge.

William Dorsey was prosecuted for perjury, and from a judgment quashing the indictment, the state appeals. Affirmed.

C. W. Miller, Atty. Gen., W. C. Geake, C. C. Hadley, H. M. Dowling, and Jas. A. Cooper, for the State. Sam'l R. Hammil, for appellee.

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 notion 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 commissioners 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 made 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 affidavit 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 accompanied 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, 219222, 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 work

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. 1901, 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 "matter 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.

(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.

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 QUES

TION.

In identifying a question presented for review on appeal, the rules of procedure must be strictly construed.

4. SAME-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 allowed unless clearly incompatible with the appeal record.

5. WILLS-ELECTION BY WIDOW-PRESUMP

TION.

Under Burns' Ann. St. 1901, § 2666, authorizing a widow to elect whether she will take under the will or her statutory estate, a widow will be presumed to have elected 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 wil!.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, § 2060.]

6. SAME-ELECTION-VACATION-FRAUD.

Complainant, a woman 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 CON

CLUDED.

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

as prayed. Held, that such order was not res judicata of complainant's right to set aside her election for fraud.

9. ESTOPPEL-RIGHTS OF WRONGDoers.

Complainant, after the death of her husband, was fraudulently induced by E. to repudiate the husband's will and take under the law. Immediately thereafter two-thirds of the husband's real estate was sold to pay debts and purchased by E., who thereafter induced complainant to convey the other third to her in consideration of a contract for support, after which E., relying on such conveyances, expended $2,000 for repairs and betterments on the property. Held that, as between complainant and E., the latter, by reason of such expenditure, etc., was not entitled to claim that complainant was estopped to set aside her election for fraud.

10. WILLS-ELECTION-RESCISSION - LIMITA

TION-LACHES.

A suit by a widow to rescind her election to take under the law for fraud may be brought at any time within six years, provided she gives a sufficient excuse for laches.

11. SAME-LACHES.

Where, at the time a widow was induced by her son-in-law and the circuit judge to elect to rescind her husband's will and take under the law, she was urged not to tell any one of the meeting, or what had been said to her by the judge or any party in his presence concerning her husband's want of testamentary capacity, or the invalidity of the will, and she did not learn that such representations were false until a few weeks prior to the commencement of her suit to set aside such election, the suit having been brought within the general statutory period of limitations, complainant's laches were sufficiently excused.

12. JUDGES-DE FACTO JUDGES OBJECTIONSWAIVER.

Where defendant appeared before a special judge, and after the granting of a change of venue demurred to the complaint and excepted to the overruling thereof, without objecting that such special judge was improperly appointed, he waived his right thereafter to raise such objection.

[Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Judges, § 65.]

13. COSTS-PERSONS LIABLE-APPORTIONMENT.

In a suit by a widow to set aside her election not to take under her husband's will, the only issue tendered by the complaint was the alleged fraud of E. and W. No fraud or wrongdoing was charged against any other defendant, and the administrator was but a nominal party. Held that, on plaintiff being successful, it was proper for the court to adjudge costs against defendants E. and W. only, under Code, § 603, providing that where there are several defendants the costs shall be apportioned according to the judgment rendered on the issue.

[Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Costs, §§ 394-396.]

14. SAME.

Under Code, § 603, providing for an apportionment of costs, where there are several defendants, according to the judgment rendered on the issue, if one of several defendants make a separate issue, which is declared against him, he is liable for the costs.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Costs, §§ 394-396.]

Appeal from Circuit Court, Hancock County; E. W. Felt, Judge.

Action by Elizabeth Strickler and others against Elmira J. Whitesell and others. From a judgment in favor of complainants, reversed by the Appellate Court (73 N. E.

153), complainants appeal. Judgment of circuit court affirmed.

Sam'l C. Whitesell, Downing & Hough, and Robbins & Starr, for appellants. B. F. Mason and Thos. J. Study, for appellees.

HADLEY, J. Amos Strickler died testate in Wayne county, Ind., October 23, 1899. He executed his will on the 10th day of March, 1889. On November 6, 1899, the will was proven, admitted to probate, and was duly recorded. By the terms of his will, after providing for the payment of all his debts, he bequeaths to his widow, the appellee Elizabeth Strickler, all of his estate, both real and personal. The value of the estate thus bequeathed was about $10,000. Besides his widow, he left, as his only heirs, the appellants Elmira J. Whitesell, his daughter, Minos Strickler, his son, and Russell Strickler, his grandson. After the probate of the will the widow elected to renounce the will and take under the statute. The appellant Henry C. Starr was thereupon appointed administrator of the estate, gave bond, and proceeded to the settlement of his trust, and has converted all of the estate, both real and personal, into cash, and has the proceeds thereof, less expenses, etc., in his possession. The widow, who was the plaintiff below, brought this action to set aside her election to take under the statute, to the end that she might take under the will. She bases her right to maintain the action upon the false and fraudulent representations made by the appellees Elmira J. Whitesell and her husband, Samuel C. Whitesell, and the judge of the Wayne circuit court. The prayer of the complaint is that appellee's said election to reject the will and take under the statute be canceled and set aside, and that the administrator of the estate be ordered and directed to pay to her all of the money in his hands after the payment of debts and costs of administration. All of the heirs of the decedent, the administrator of the estate, and the husband of Elmira J. were made parties defendant, and appeared to the action, and all demurred to the complaint. The demurrer to the complaint, omitting the formal parts thereof and the names of the demurring parties is in the following words: "Each separately and severally demurs to the plaintiff's complaint, and for cause of demurrer says that said amended complaint does not state facts sufficient to constitute a cause of action." The record shows that the "court overrules the separate demurrer by each of the defendants to the amended complaint,

* * to which ruling of the court the defendants object and except." All of the defendants below, except Minos O. Strickler, filed answers. A demurrer was addressed to each affirmative paragraph and each of said demurrers was sustained. All of the defendants who appeared to the action thereupon withdrew their respective answers of general

denial and elected to stand upon the affirmative answers. The defendant Minos O. Strickler, who is made an appellee here, was duly defaulted. There was then a finding and judgment for the plaintiff, setting aside her election to take under the law.

1. It is earnestly contended by counsel for appellee that, under the exceptions reserved to the rulings on the demurrers to the complaint, and the several assignments of error thereon, no question upon the demurrers is presented for decision, because the record discloses separate assignments of error based upon joint exceptions. The assignments on the ruling upon the demurrers to the complaint, as made, are separate and not joint. It will be noticed from the above quotation from the record that the exception reserved was, as termed, "by the defendants." From the nature of the proceedings up to this point, we think it is misleading and improper to construe the plural pronoun employed by the clerk in recording the minute, as characterizing the act of the defendants as being joint. When two or more parties desire to demur separately to the same pleading, on the same ground, the law does not require each to file a separate paper. If they choose, all may act separately in demurring, and yet unite in the same paper, provided it is clearly stated therein that they act severally and not jointly. The demurrer under consideration, after setting forth the names of all the defendants as demurring parties, proceeds, "each separately and severally demurs

and for cause of demurrer says" and, etc. Not only do they employ the distributive word "each" and the singular verbs "demurs" and "says," but the association of these with the words "separately" and "severally" make it too plain for argument that the paper was intended to be, and in fact was, the several demurrer of each of the defendants. It was so understood by the courts, for the record goes on, "and thereupon the court overrules the separate demurrer by each of the defendants to the complaint, to which ruling of the court the defendants except." What ruling is here referred to as reserved? Certainly no other than that described immediately preceding. It could have been no other, because the record shows there was no other ruling on demurrer to the complaint. That ruling, though a separate act, and in a sense in gross, is as clearly distributive in effect as if the court had repeated and announced separately the ruling against each of the six demurrants; and, the defendants all being severally, though in the same way, affected by the ruling, we see no reason why they might not unite in reserving several and appropriate exceptions. Stametz v. Mitchenor, 165 Ind. 672, 75 N. E. 579. Furthermore, under these facts, we think the words "defendants except" mean the same as if the clerk had written "each of the defendants except," which without any question should be construed distributively. An

appeal is allowed by the statute solely for the correction of errors of the trial court. The assignment of error is termed the complaint in this court, and must be consistent, and correctly and specifically present to the court, in manner and form as presented to the lower court, the particular rulings and subject-matter thereof, as shown by the record to have been made, and excepted to. As a joint complaint in the trial court must be good as to all who join or good as to none, so a joint assignment must be erroneous as to all or it will be held so as to none. Orton v. Tilden, 110 Ind. 131, 10 N. E. 936, and cases cited. Likewise a separate assignment, founded upon a joint ruling against one or more appellants, presents no question to this court. Green v. Heaston, 154 Ind. 130, 56 N. E. 87, and cases cited. It is the same questions that were ruled upon by the trial court, presented here in the same way, that are reviewable on appeal. In identifying the question appealed, it is plain that the rules of procedure should be strictly construed, in fairness to the trial court, if for no better reason, but, as in this case, when two or more persons desire to take the same step, 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. And such exception should be allowed unless clearly incompatible with the record. When an appellant excepts to a ruling for the purpose of presenting it to a court of review, it should at least be presumed that his exception was intended to be in the capacity and relation that would make it effective. The assignment of error predicated upon the ruling on the demurrers to the complaint are several, and we think the same are supported by proper exceptions reserved at the trial. Our holdings on exceptions reserved to rulings on demurrer to the complaint in Noonan v. Bell, 159 Ind. 329, 64 N. E. 909, and Southern Indiana R. R. Co. v. Harrell, 161 Ind. 689, 68 N. E. 262, 63 L. R. A. 460, while perhaps the logical result of prior rulings if pressed to an extreme, appear to us, on further consideration, as too restricted and the same are now disapproved.

2. Was the complaint sufficient? It counts upon fraud and undue influence of the defendants Whitesell and Whitesell and the judge of the Wayne circuit court, whereby the plaintiff was induced to renounce the provisions made for her by the will of her deceased husband, and in lieu thereof accept her portion of her husband's estate under the law. It was held in Garn v. Garn, 135 Ind. 689, 35 N. E. 394, that the policy of the law of this state has ever been to deal liberally with widows in the distribution of her husband's estate. In harmony with this doctrine the statute guaranties to a widow the