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The conclusion we unhesitatingly reach is the force and effect of this section is to fix that under the new constitution, which took the tenure of office at two years. See 3 Amer. effect November 1, 1851, the power to elect & Eng. Cyclop. Law, p. 674, note 1; Newland state officers whose duties are general, and v. Marsh, 19 Ill. 376; Homestead Co. v. Websuch as the duties of the chief of the Indiana ster Co., 21 Iowa, 221; Wray v. Rhinelander, bureau of statistics, remains with the people; 52 Barb. 553; Bigelow v. Railroad, 27 Wis. 478; and that the proper interpretation and con- Dow v. Norris, 4 N. H. 17. Though the law struction to be given section 1, art. 15, is that creating the oflice in question does not provide state officers shall be chosen by the electors for the election of the officer by the people, of the state in such manner as may be pre- and is silent on that subject, and there is no scribed by law; and that it is the duty of the provision of the statute relating to and prolegislature, in creating a state office, to fix the viding for the election of this particular offiterm of the office, and provide for the election cer, yet we think the law creates the office, of the officer by the people. On examination, and, when created, the people have the right we find the construction we have given the to elect the officer. It would seem that they constitution supported by the practical inter- would have that right and might elect such pretation given to it until within a very re- officer at a general state election, even if there cent date. Soon after the adoption of the was no statute in force governing state elecconstitution, the office of attorney general tions that contemplated the election of such was created, and it was provided by law that officer. The people cannot be deprived of the officer should be elected by the electors of their rights to elect an officer by the neglect the state. True, the act provided that the or refusal of the legislature to discharge its general assembly should elect to fill the va duty. But we are not called upon to decide cancy existing until an election by the peo- that question, as the general election law ple; but the general assembly adjourned with clearly authorizes the election of such officer. out holding an election, and electing such of Section 4678, Rev. St. 1881, reads as follows: ficer, as the act provided. The fair inference “Section 1. A general election shall be held is that on more mature deliberation, after the on the first Tuesday after the first Monday in passage of the act, they determined that they November in the year one thousand eight had no power to elect, and hence adjourned hundred and eighty-two, and biennially therewithout doing so.
after on the same day, at which election all The constitution provides that “the general existing vacancies in office, and all offices the assembly shall provide by law for the speedy terms of which will expire before the next publication of the decisions of the supreme general election thereafter, shall be filled, uncourt,” (section 6, art. 7;) and immediately less otherwise provided by law.” This statafter the adoption of the constitution the leg- ute is broad enough, and it was intended, to islature created the office of reporter of the fill all offices which would become vacant besupreme court, and provided for the election fore the next general election. The appointee of the reporter by the people. Likewise, dis- of the governor would hold until his succes. trict offices were created, courts of common sor was elected at the next general election pleas were established, and the offices of judges after he was appointed, and until his succesof the courts of common pleas and district sor had qualified. There can be no question prosecuting attorneys were created; and it but that the people have the right to elect the was provided by law that the judges and pros-chief of the bureau of statistics at the general . ecutors should be elected by the electors of the election provided for by section 4678, Rev. St. respective districts. Without setting out the 1881. various provisions in the constitution vesting In determining the right of the people to appointing power in the governor of the state, elect a state officer, and the appointing powit is our conclusion that the right to fill the er of the governor, we limit what we have vacancies in all such offices is vested in the said to offices of the nature and character of governor,—the executive officer of the state. the one in question. There may be a class of It follows, therefore, that the act of 1883, officers, and probably is, whose duties are not amnending section 2 of the act of 1879, pro- general, or relate to and are calculated to aid viding for the election of the chief of the In the governor in the execution of the laws, or diana bureau of statistics by the general as- police officers whom he would have the right sembly, is unconstitutional and void, and the to appoint; but in regard to his right to apact of 1879, attempted to be amended, is still point such otficers we decide nothing. in force.
The conclusion reached is that the general Section 2 of the act of 1879 provides that assembly had no power to elect the appellee the governor shall appoint the chief. In so to the oifice in question, and that such elecfar as it provides for the appointment by the tion was void; that the information alleges governor, it is simply declaratory of the con- there was a vacancy in the office; that the apstitution, and gives to the governor no pow- pellee usurped the office, and illegally held er that he did not possess by virtue of the possession of it; that the governor appointed constitution, as by it he held power to fill the the relator, and he was eligible, and is entivacancy until an election by the people, and tled to the office. The court below erred in the legislature could give the governor no sustaining the demurrer to the information. greater authority; but this section is valid, The judgment is reversed, at the costs of the and operates to fix the tenure of the office. appellee, and the cause remanded to the court
below, with instructions to overrule the defendants having disclaimed any interest in murrer, and for further proceedings in accord- the subject-matter of the suit. ance with this opinion.
Complaint is first made of the ruling of the
court in denying the appellants' right to open ELLIOTT, C. J., (dissenting.) I dissent and close the evidence and argument to the from the prevailing opinion for the reason jury. This ruling was, however, very clearthat I believe that the legislature has power iy right. Instead of admitting all the mato establish a bureau of statistics, and that, terial facts alleged in the complaint, the aphaving the power to do this, it has also the right pellants argumentatively denied them, by to select the means and agencies which it averring that the land had been conveyed to deems necessary to carry into effect the law them some years prior to the death of Eliza it has enacted establishing that bureau. I Robbins, and by asserting an absolute title have stated my views in the opinion in the in fee-simple to the whole tract. Where the case of State v. Hyde, ante, 644, and I do not defendant, either directly or by necessary imdeem it necessary to again discuss the ques- plication, confesses all the issuable allegation.
tions of the complaint, and avoids them by
pleading new matter, he is entitled to the MITCHELL, J., concurs with ELLIOTT, C. J. open and close; but, as we have seen, the an
swer in the present case is in effect a denial, (121 Ind. 594)
leaving the burden of proof, so far as the ROBBINS et al. 0. SPENCER et al.'
complaint was concerned, upon the plaintiffs. (Supreme Court of Indiana. Oct. 31, 1889.) Where the pleadings are so framed as to enPARTITION-RIGHT TO OPEN AND CLOSE-IMPEACH- title the plaintiff, without any proof, to obMENT-DEEDS.
tain all the relief he demands, the defendant 1. Where defendants in partition claim to own is entitled to the open and close. If, however, the entire estate, plaintiff has the right to open and the court could not, without hearing eviclose.
2. Where impeaching witnesses state, on cross-dence, render judgment in plaintiff's favor examination, the names of the persons from whom for his entire demand, or afford him all the they have heard reports as to the reputation of the relief claimed, he cannot be deprived of that person to be impeached, such statement, being on privilege. Harvesting-Machine Co. v. Gray, & collateral issue, is conclusive.
3. Where, upon trial of an issue as to the title 100 Ind. 285; Reynolds v. Baldwin, 93 Ind. to land, there has been introduced in evidence a 57; McCoy v. McCoy, 106 Ind. 492, 7 N. E. deed conveying the land after the grantor's death, Rep. 188; Shulse v. McWilliams, 104 Ind. and a subsequent lease between the same parties 512. 3 N. E. Rep. 243. demising the land to the grantees for the graūtor's life, it is error to leave the jury to determine
At the trial, witnesses were called who whether the execution of the lease is inconsistent gave evidence tending to impeach the genwith the fact of the delivery of the deed.
eral reputation for truth and veracity and the Appeal from circuit court, Gibson county; general moral character of one of the witO. M. WELBOURN, Judge.
nesses who testified on behalf of the appelBeasley & Williams and George G. Reily, | lants. After having stated on direct examifor appellants. W. C. Hultz and 0. B. Har- nation that the general reputation for truth ris, for appellees.
and veracity, as well as the general moral char
acter, of the witness were bad, the impeachMITCIIELL, J. This is an appeal by Will- ing witness, in answer to questions put on iam M. and Anthony S. Robbins from a judg-cross-examination, requesting him to give the ment rendered in a proceeding for the parti- names of persons who had spoken in derogation of real estate instituted by Martha A. tion of the reputation and character of the Spencer and others. It was alleged in the impeached witness, mentioned the names of complaint that Eliza Robbins, late of Sullivan four or five different persons. In rebuttal, county, died in the month of October, 1882, the appellant called the persons whose names the owner in fee-simple of certain described had been thus mentioned as witnesses, and real estate, situate in the county above named, by proper questions proposed to prove by and that she left the plaintiffs and defendants them that they had never said anything to or as her heirs at law, to whom the real estate in the presence of the respective impeaching therein described descended. William M. witnesses to indicate that the impeached witand Anthony S. Robbins averred that they ness was either untruthful or immoral. This were the absolute owners of the land de evidence was excluded, and this ruling is scribed in the complaint, and that they de- complained of. It has been pertinently said rived their title through a warranty deed ex- that “issues are more likely to multiply in ecuted to them by Eliza Robbins on the 28th ascertaining the interest or testing the crediday of April, 1869, under which they alleged bility of witnesses than in any other incident they had taken and held the exclusive posses- of a trial.' The fact must therefore be kept sion of the land, and made lasting and valu- in view that the impeachment of the general able improvements thereon. They set up character and reputation of a witness is a substantially the same facts in a cross-com- matter collateral to the main issue on trial, plaint, and asked, as affirmative relief, that and must be governed by the principles aptheir title to the land be quieted. The litiga- plicable to all other collateral inquiries. The tion was altogether between the plaintiff and rule seems to be settled, when general evithe above-named defendants, the other de-dence impeaching the credit of a witness has
*Rehearing denied. See 38 N. E. 522. Rehearing denied, 40 N. E. 263.
been given, the opposite party may go into a thing in disparagement of the character of cross-examination to ascertain the grounds of the impeached witness, the other side must the unfavorable opinion, and the means of have been allowed to call still other witnesses, knowledge possessed by the impeaching wit- to prove the contrary. By this means the ness, including an inquiry into the source matter in issue between the parties might and nature of disparaging reports. People v. have been obscured or subordinated by a colMather, 4 Wend. 230-259; Lower v. Winters, lateral controversy between the witnesses. 7 Cow. 263; Phillips v. Kingfield, 19 Me. Our conclusion is that the testimony was 381; Bates v. Barber, 4 Cush. 109; 1 Greenl. properly excluded. Ev. § 461.
As we have seen, the appellants claimed The object of the cross-examination, as has title to the land sought to be partitioned been in effect said, is not only to enable the through a deed dated in April, 1869. The court and jury to determine whether the im- controversy was mainly whether or not the peaching witness in fact knows the general deed had ever been delivered to the grantees. reputation of the other, but to test the cor- The deed, if fully executed, conveyed the rectness of his evidence, and to afford the land to the appellants in fee-simple, reservwitness assailed the means of protection if ing in an obscure way a life-estate therein to the assault upon him is unjust. People v. the grantor. Spencer v. Robbins, 106 Ind. Annis, 13 Mich. 511. Accordingly it has 580, 5 N. E. Rep. 726. For the purpose of been held that the impeaching witness may raising an inference that the above-mentioned be asked on cross-examination to name the deed had never been delivered, the plaintiffs individuals who had spoken disparagingly of below read in evidence a lease executed by the impeached witness, and what they said. Eliza Robbins to the appellants, dated in State v. Perkins, 66 N. C. 126; Weeks v. April, 1882. By the terms of the lease the Huil, 19 Conn. 376; 1 Whart. Ev. SS 565–568; lessees were to have the use of the lands in 2 Phil. Ev.958. To this extent the rule seems controversy during the life-time of the lessor, to be satisfactorily established, but we know there being a stipulation reserving to her the of no authority, nor can we conceive of any use of the dwelling-house, and requiring the valid reason, which would justify a collateral lessees to furnish all necessary provisions for issue, such as would arise if the evidence pro- her support. A3 relevant to this feature of posed were admitted, between the witnesses. the case, the court instructed the jury as folSuch an inquiry would only tend to embar-lows: “In considering whether Eliza Robrass and delay trials, without subserving the bins intended the deed to William M. and ends of justice. The established rule appli-Anthony Robbins to be delivered, or whether cable, in a case like the present, as in all oth- the said deed was delivered, you may take ers, is that, "in order to avoid an intermina- into consideration, with all the other facts ble multiplication of issues, it is a settled rule and circumstances in the case bearing on that of practice that when a witness is cross-ex-issue, the fact, if the same has been proved, amined on a matter collateral to the issue he that the said Eliza Robbins executed to the cannot, as to his answer, be subsequently con- said William M. and Anthony S. Robbins, tradicted by the party putting the question." since the date of the deed to them, a contract 1 Whart. Ev. § 559; Welch v. State, 104 Ind. or lease of the same lands described in said 347, 3 N. E. Rep. 850. The evidence exclud-deed, and that said William M. and Anthony ed falls directly within the rule above stated. S. Robbins signed and accepted the same, if In People v. Mather, supra, it was proposed, you believe there is any inconsistency beby way of supporting the credit of a witness tween the alleged deed and lease.” This inwhose character had been disparaged by oth-struction was erroneous. It left the jury to ers, to introduce witnesses to show that the infer that the execution of the lease, whereby reports against the witness had originated the appellants became entitled to the use of from a particular party or body of men, and the life-estate which had been reserved to the were founded on a particular transaction, grantor by the terms of the prior deed, might, which had been intentionally perverted to in- as a matter of fact, be considered by them as jure the character of the witness. In ruling inconsistent with the delivery of the deed, that the evidence was rightly excluded, the which conveyed to the appellants the remaincourt, per MARCY, J., said: "If the public der over after the termination of the life-esprosecutor had been permitted to introduce tate. As a proposition of law, however, the evidence to show that the reports originated execution of a lease, granting to the lessees with a particular party or body of men, the the use of the life-estate which the lessor had defendant must have been allowed to contro- reserved, would not be inconsistent with the vert the fact by the testimony of other wit- fact that a deed for the remainder over had nesses. If it was allowable for, one party to previously been delivered to the lessees. It show that the bad character arose from a par- is the exclusive province of the court to inticular transaction which did not justify the terpret written instruments affecting the disparaging reports, the other party must be rights of the parties, and where, as in the allowed to show that the nature of the trans- present case, the instruments between the action was such as to warrant them.” With same parties, conveying different interests in equal propriety it may be said, in the present the subject matter in litigation, are admitted case, if the appellants had been permitted to in evidence, the court must determine the sliow by witnesses that they never said any-force and effect of each, and whether the ex
ecution of the one is inconsistent with the de- before him, and submitted testimony, which livery of the other. Comor v. Himes, 49 Ind. testimony is herewith reported to the court. 482; Symmes v. Brown, 13 Ind. 318; Thomp. The bill of exceptions in the case contains Trials, SS 1065, 1066. As a matter of course, neither the report nor the evidence. So where a writing is introduced in evidence for much of the bill of exceptions as is material the purpose of showing some extrinsic or col- is as follows: “Be it remembered that, when lateral fact, and its effect does not depend this cause came on for hearing upon the masupon the construction or meaning of the in- ter's report and the plaintiff's exceptions strument, or its effect upon soine other in thereto, it was, by agreement of parties, substrument, the inference of fact is to be drawn mitted to the court for hearing and trial by the jury. Id. § 1098. That principle without the intervention of a jury, and on cannot, however, rescue the instruction in the trial there was introduced the master's the present case, and the reason is that the report in evidence, as follows, viz.: (Herecourt here left it to the jury to interpret the tofore inserted in the record,—see page lease and the deed in respect to the effect one line —, of this transcript;) and also the instrument had upon the other, and to say plaintiffs' exceptions thereto, as follows, viz.: whether or not there was any inconsistency (Heretofore inserted in the record,-see page between them. The only possible inference 56, line of this transcript;) and also the jury could draw from the instruction was the evidence (stenographer's report) adduced that they might consider the execution of the and had at the hearing before the master, lease, if they found one had been made, as which is embodied in and made a part of this inconsistent with the fact that a deed had pre- bill of exceptions.” There is no part of the viously been executed. We cannot say that evidence embodied in the bill of exceptions. this error was harmless. The bills of excep- There is a large volume indorsed and filed in tions containing the evidence and instructions this case, certified to by the reporter as a corare properly in the record. The judgment is rect and impartial report of all the evidence reversed, with costs.
taken before the master, and a certificate of
the clerk certifying that a long-hand manu. (122 Ind. 379)
script copy of the evidence given before the PATTERSON et al. o. CHURCHMAN et al.1
master commissioner in the cause was duly
filed in his ofice, and the one embodied in the (Supreme Court of Indiana. Nov. 1, 1889.)
plaintiffs' bill of exceptions filed November BILL OF EXCEPTIONS.
11, 1885, is the identical one so filed as aforeThe stenographer's report of oral testimony, said, and now certified and transmitted herethough filed in court, is not a written instrument, within the meaning of the Indiana Code allowing with. It is most earnestly contended by written instruments to be brought into the record counsel for appellant that in this state of the by reference in a skeleton bill of exceptions. Fol-record the evidence is properly in the record lowing Doyal v. Landes, 20 N. E. Rep. 719.
to be considered by this court; but this quesAppeal from superior court, Marion coun- tion has been so often decided adversely to ty; N. B. TAYLOR, Judge.
the theory of counsel that we deem it unnecClaypool & Ketcham and E. A. Parker, essary to extend this opinion further than to for appellants. Harrison, Miller & Elam cite the cases deciding the question, and and Baker, Hord & Hendricks, for appel which we think hold the correct doctrine, lees.
and we shall still adhere to it. Wagoner v.
Wilson, 108 Ind. 210, 8 N. E. Rep. 925; OLDS, J. The questions discussed by coun- Stone v. Brown, 116 Ind. 78, 18 N. E. Rep. sel in this cause arise on the evidence, and 392; Flint v. Burnell, 116 Ind. 481, 19 N. E. the evidence is not properly in the record. Rep. 140; Butler v. Roberts, 118 Ind. 481, Therefore there is no question presented for 21 N. E. Rep. 42; Colt v. McConnell, 116 decision. The record shows that the cause Ind. 249, 19 N. E. Rep. 106; Fahlor v. State, was referred to a master commissioner of the 108 Ind. 387, 9 N. E. Rep. 297; Doyal v. court, and such master commissioner author- Landes, 20 N. E. Rep. 719. The decisions ized to take the evidence adduced by the par- upon this question are based upon and in acties on the issues joined, and to report the cordance with the plain provisions of the same to the court, together with his special statute, and it is no hardship on litigants to finding of facts and his conclusions of law, require a compliance with its plain provisand such commissioner was authorized to ions. Judgment atfirmed, with costs. employ a stenographer, who might be agreed upon by the parties, to take the evidence.
ELLIOTT, C. J., took no part in the decision The record then shows that the master com- of this cause. missioner filed a report in which it was shown that he had employed a stenographer,
(120 Ind. 549) who had taken the evidence in short-hand, LOUISVILLE & N. R. Co. o. BISCH. and then written it out in long-hand, for the
(Supreme Court of Indiana. Nov. 1, 1889.) use of the commissioner and the court. It then appears that such commissioner filed CARRIERS OF PASSENGERS-CONTRIBUTORY NEGLIhis report and the evidence taken before him. IIis report is set out in the transcript, in of a car at the rear end of a long train of freight
A passenger who remains on the platform which it is shown that the parties appeared cars, after warning to leave it, assumes the risk of 1 Rehearing denied, 23 N. E. 1082.
injury caused by the jerk with which the train | risk of injury. The case. as it appears in the starts.
hypothesis on which the instruction proceeds, Appeal from circuit court, Warrick coun- is a stronger one than the ordinary case of ty; GEORGE L. REINHARD, Judge.
contributory negligence; for the plaintiff did Action by Victor Bisch against the Louis- more than carelessly seek and remain in a ville & Nashville Railroad Company for per- place of danger, for he remained there in dissonal injury received while traveling on one obedience of directions given him, and deof defendant's trains. Judgment for plain- spite the warnings which he received. He tiff. Defendant appeals.
in fact assented to the injury. The case goes James M. Shackelford and s. B. Vance, beyond the operation of the rule on the subfor appellant. Denby & Kumler and Gilject of contributory negligence, and comes christ & De Bruler, for appellee.
within the scope of the maxim, volenti non
fit injuria. Around the central proposition ELLIOTT, C. J. The appellee entered a that the plaintiff voluntarily assumed the car at the rear end of a freight train stand-risk by remaining in a place of danger, in ing on the appellant's track. He rightfully disobedience of directions and warnings, may. entered the car as a passenger. After re- be grouped various subsidiary doctrines, maining in the car a short time, he walked which fortify and strengthen it. A passenout upon the rear platform, and while stand- ger is justified, as a general rule, in obeying ing there the train was started with a sud- the direction of the employes of the carrier, den jerk, and he was thrown to the ground and if he receives injury in obeying them the and injured. There is evidence tending to carrier is liable, even if it appears that if he prove that he was requested by the appel- | had not obeyed he would have escaped injusant's employes to leave the platform, and ry. Railroad Co. v. Carper, 112 Inil. 26–29, enter the car, and that he disregarded this 13 N. E. Rep. 122, and 14 N. E. Rep. 352; request or order, and remained on the plat- Railroad Co. v. Kelly, 92 Ind. 371; Räilroad form. The evidence also shows that there Co. v. Buck, 96 Ind. 346; Railway Co. v. were from 15 to 20 freight-cars attached to Fix, 83 Ind. 381; Pennsylvania Co. v. Hoagthe locomotive, and there was much evidence land, 78 Ind. 203; Pool v. Railroad Co., 53 to the effect that because of the slack be- Wis. 657, 11 N. W. Rep. .15; Hanson v. tween the cars a freight train cannot be Transportation Co., 38 La. Ann. 111; Filer v. started without a jerk. The appellee in his Railroad Co., 59 N. Y. 351; Railroad Co. v. testimony says: “I knew freight trains did Cantrell, 57 Ark. 519; Fowler v. Railroad not go so smoothly as a passenger train. If Co., 18 W. Va. 579; Hickey v. Railroad Co., there had been no slack, there would have 14 Allen, 429; Railroad Co. v. Aspell, 23 Pa. been no jerk.” The court instructed the jury St. 147; Railroad Co. v. Horst, 93 U.S. 291; that unless the plaintiff proved that he was Railroad Co. v. Brown, 123 III. 162, 14 N. E. not guilty of contributory negligence there Rep. 197. could be no recovery, but there were no in If the passenger may safely obey such distructions defining “contributory negli- rections, it must be for the reason that it is gence;" for all the instructions upon this his duty to do so, and it follows that if he resubject were expressed in general terms. fuses to do so he is guilty of a breach of duty. One of the instructions given by the court One who is himself guilty of a breach of duty, reads thus: “Even if the jury find from the and wrongfully remains in a place of danevidence that the plaintiff had been warned ger, cannot recover if that wrong was the against standing on the platform, and had proximate cause of his injury, although anbeen directed to go inside, and had disobeyed other may have also been in fault.
To alla the instruction, still if the jury also believe thorize a recovery the case must be one "of from the evidence that the conductor of the unmixed negligence. This case strikingly train, at the moment of giving the signal to illustrates this rule, for hail the plaintiff enstart, actually saw the plaintiff on the rear tered the car, as it was his duty to do, the platform of the caboose, in the act of enter-injury would not have befallen him. Clearing or attempting to enter the caboose, and ly, then, his own wrong was the proximate knew that he was in a dangerous position, cause of his misfortune. Sullivan v. Rail. and gave the signal to start while the plain- road Co., 30 Pa. St. 234. Not only did the tiff was in that position, and without giving plaintiff, upon the theory on which the inhim a reasonable time to enter, and that by a struction is constructed, disobey a direction sudden jerk in starting the cars the plaintiff given him, but he renjained in a place of was thrown to the ground and injured, then danger where he ought not to have remained, the jury should find for the plaintiff.” This even if he had not been warned and directed instruction cannot be rescued from condem- to leave it. There are very many decisions nation. Leaving out of consideration minor which atfirm that one who remains on the matters of objection, and placing our decis- platform of a train about to move, or which ion upon broad grounds, we adjudge that the is in motion, although it is a regular passeninstruction is so radically wrong as to com- ger train, is, in the absence of explanatory pel a reversal of the judgment. The plain- circumstances, guilty of such negligence as tiff, by refusing obedience to the directions will bar a recovery. Secor v. Railroad Co., 10 given him, and by voluntarily remaining in Fed. Rep. 15; Blodgett v. Bartlett, 50 Ga. a place of danger after warning, assumed the '353; Railroad Co. v. Hoosey, 99 Pa. St. 492;