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not be delegated, such as making a will or contracting marriage, etc. See Whart. Ag. § 21. The exercise of the right of remonstrating under the statute in controversy is not in the nature of exercising a right to vote against the liquor traffic in general. The right or privilege conferred is that of permitting the voters of a township or ward, after an applicant for a license has instituted his proceedings, to register their opposition through a written remonstrance against granting him a license to retail liquors, without assigning any reasons for their opposition. Consequently, when the agents of appellees in this case, under the authority given them, subscribed the names of their principals (appellees herein) to the remonstrances involved, and placed the same on file in the office of the auditor, they did not thereby cast the votes of appellees against the traffic of intoxicating liquors, but they simply registered, as they were directed to do under the power of attorney, the opposition of appellees against granting the particular license to appellant, and thereby tendered a special issue relating to the jurisdiction of the board, to be determined by that body, subject to an appeal by the aggrieved party to a higher court. If the question was in respect to the right of any of the appellees to appoint and employ some attorney at law of their choice to appear in any or all of the courts of justice in Marion county, and defend them in any and all actions or suits that might thereafter be instituted against them, and to sign for them all necessary answers and pleadings in making their defense, certainly such right could not be successfully controverted. Under the provisions of the power of attorney involved in the case at bar, the parties designated and constituted as the attorneys or agents of appellees herein were, in effect, directed to register, through the written remonstrance, the protest of each of their principals against the granting of a license to every applicant that might thereafter apply, and file such remonstrance with the auditor of the county, to be presented to the board of commissioners. No discretion, under the authority given, was left by appellees to their agents. Under the provisions of the instrument or instruments by which they were each empowered, they were required to discharge their duty by performing the act of remonstrating, in the names of their principals, against every applicant for a license to sell intoxicating liquors in Lawrence township, and their neglect to do so would have been a violation of the duty enjoined upon them, which they agreed to discharge by accepting the appointment. The right of voters remonstrating through the agency of another, or any of them, to entirely revoke or modify the power conferred upon their agent before the remonstrance is filed, must be conceded; and their further right, after the filing of the remonstrance, and before the beginning of the three-days limitation, of

any or all of such remonstrators, to withdraw their names from the document, as held in State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313, White v. Prifogle, 146 Ind. 64, 44 N. E. 926, and Sutherland v. McKinney, 146 Ind. 611, 45 N. E. 1048, must also be granted. It is insisted by counsel for appellant that the words "any applicant," as employed in the power of attorney in this case, serve to invest the attorney or agent thereby appointed with a discretion to remonstrate against the granting of a license to some applicants, and not against others. This contention is untenable. The instrument in question must be construed to effectuate the object or purpose, if the same can be ascertained, of those by whom it was executed. From the positive language employed therein, it is certainly evident that those executing the instrument intended that the attorney or agent designated should remonstrate in their names, and for them, against granting a license in all cases in which such privilege was sought by an applicant for the purpose of vending intoxicating liquors in their township. While perhaps it would have been better, in drafting the power of attorney, to have used the terms "any and all applicants," still the word "any," as therein employed, was the equivalent of the word "all" or "every." The word "any" is frequently and appropriately used to express the same meaning as "all" or "every." 2 Am. & Eng. Enc. Law (2d Ed.) 414, and cases there cited.

Without further comment, we are constrained, under the facts in this case, to hold that the remonstrances in dispute were valid, and are therefore sustained, and by reason of their force and effect the lower court was justified in dismissing appellant's application, and in rendering judgment against him for costs. There is no error prejudicial to appellant in any of the rulings of the court, and the judgment is therefore affirmed.

(158 Ind. 543) STATE ex rel. LEWIS et al. v. SMITH, Auditor.

(Supreme Court of Indiana. May 22, 1902.)

TAXATION DEDUCTION OF MORTGAGE DEBTS -CONSTITUTIONAL LAW.

Acts 1899, p. 422, § 1 (Burns' Rev. St. 1901, § 8417a; Horner's Rev. St. 1901, § 6272a), providing that the owner of real estate subject to taxation, having an indebtedness secured by mortgage thereon, may have such indebtedness, to an amount not exceeding $700, and not exceeding half the assessed valuation of the premises, deducted from such valuation, does not infringe Const. art. 10, § 1, providing for an equal and uniform mode of taxation, and for such regulations as shall secure a just valuation of all property not authorized to be exempted.

Dowling and Monk, JJ., dissenting.

Petition for rehearing. Overruled.

For former opinion, see 63 N. E. 25, 214.

GILLETT, J. Appellee's counsel have filed a petition for a rehearing in this cause, and we have given careful consideration to the views that find expression in their brief in support of such petition. After doing so, and upon a re-examination of, and further search for authorities, we adhere to the conclusion before announced that the law is valid. The original opinion stated at length the views of a majority of the court, but the importance of the case is a sufficient reason for a further opinion. It must not be forgotten that section 1, art. 10, of the state constitution, is not the source of the legislative power of taxation, for that section is only a curb upon the authority of the general assembly. Can it be said that a law that authorizes a deduction of mortgage debts from the value of the tracts of real estate to which they respectively attach provides for an unequal assessment, or that it is a regulation that prevents a just valuation of all property not authorized to be exempted by the constitution? It is true that the general assembly has not power to fix a valuation upon real estate, but this act is based upon a recognition of the fact that we have already shown upon the authorities, both federal and state, that he who makes a mortgage upon his real estate does an act that amounts to a conditional allenation of his title, and it is, of course, unquestionable that he thereby parts with a substantial part of his land value. Counsel for appellee may assert that a mortgage is a mere lien, and for most purposes we so recognize it; but if it be the law--and it does not admit of question that it is--that the mortgage wil be treated as a conveyance of title whenever necessary to protect the rights of the parties, the question arises whether the general assembly cannot seize upon this fact to avoid double taxation. As pointed out in our former opinion, the supreme court of the United States has declared that a mortgage may be treated as n conveyance of the land pro tanto, so that, with statutory authority, a nonresident mortgagee may be compelled to pay a ratable part of the assessment upon the land at the situs thereof. If it be asked, how do we justify the omission to place lands incumbered by vendors' liens, mechanics' liens, or judgment liens upon the same footing as lands subject to mortgage, we answer that such former demands are mere liens, while in the case of a mortgage the mortgagor has by deed, in no insubstantial sense, parted with a part of his interest in the land. Is this not reason enough to justify the general assembly in recognizing this as ground for distinction, when to do so would be, in its judgment, to accomplish justice? This court, in the Florer Case (36 N. E. 365, 23 L. R. A. 278), held that debts could be deducted from credits, because the constitutional mandates as to equality in the assessment and as to a just valuation of all prop

erty not authorized to be exempted by the constitution had no reference to mere fictitious values; and this case stands upon the same general footing, but it finds stronger support in reason, in that there is a separation of values by defeasible deed. Within a year after the taking effect of the present state constitution the general assembly passed an act concerning taxation, which contained, in section 23 thereof, the following words: "Provided, that each taxpayer may and is hereby authorized to deduct the amount of his indebtedness out of his solvent claims." Acts Sp. Sess. 1852, pp. 44, 50. The force of a construction of the constitution by a session of the general assembly that had in its personnel a considerable number of the members of the constitutional convention is forcefully pointed out in City of Indianapolis v. Navin, 151 Ind. 139, 47 N. E. 525, 51 N. E. 80, 41 L. R. A. 337, 344. The validity of such enactments as the one last mentioned has been a number of times assumed by this court before the decision in the Florer Case. Matter v. Campbell, 71 Ind. 512; Wasson v. Bank, 107 Ind. 206, 8 N. E. 97; City of Indianapolis v. Vajen, 111 Ind. 240, 12 N. E. 311; Moore v. Hewitt, 147 Ind. 464, 46 N. E. 905. In the Florer Case the question was directly in judgment, and we must overrule that decision if we depart from our previous ruling in this case that the taxation law of 1899 is valid.

We will now call attention to a few authorities on the subject of mortgage deductions not cited in our previous opinion. The legislature of Oregon passed a law which provided for a taxation of real estate mortgages at the situs of the land, and authorized the deduction of the amount of such mortgages from the tracts of real estate to which they respectively attached. The constitution of Oregon upon the subject of taxation is in every material particular a precise counterpart of our constitutional provision on the subject, yet it was held in Crawford v. Linn Co., 11 Or. 482, 5 Pac. 738, upon a full consideration of the question, that the statute was valid. The statute referred to is the same one that the supreme court of the United States, in Savings & Loan Soc. v. Multnomah Co., 169 U. S. 421, 18 Sup. Ct. 392, 42 L. Ed. 803, held did not deny the equal protection of the laws. The case of State v. Runyon, 41 N. J. Law, 98, is to a considerable extent in point. In the year 1876 the legislature of New Jersey enacted a statute that provided that mortgages upon real estate should not be taxed unless the mortgagor made a claim for a deduction on such account. In that event, if the claim was allowed by the assessor, the mortgage was taxed at the situs of the land. In passing upon the validity of that law, the court, in the case cited, speaking by Depue, J., said: "Independent of constitutional restrictions and prohibitions, the legislature is the sole judge of the

propriety of taxation. It may select and define the sources from which the public revenue shall be derived, and prescribe the means by which taxes shall be laid, levied, and collected. Perfect equality in taxation is a good that is unattainable, and will be so long as the instruments of government are imperfect. The framers of the constitutional amendments did not aim at the impossible. They contented themselves with the accomplishment of so much of good as was attainable under the single requirement that 'property shall be assessed for taxes under general laws and by uniform rules, according to its true value.' In other respects the legislative power over taxation was left unimpaired. If property be such in its nature as, upon ordinary principles of taxation, to be capable of having a twofold situs for taxation, the legislature may select either as the place where the tax should be laid. Chattels considered under the legal classification of personalty follow the person of the owner, and yet chattels may be so localized in use as to be taxable at the place where they are situate, as against the owner who resides elsewhere within the state. State v. Falkinburge, 15 N. J. Law, 320. A mortgage possesses the same dual characteristics. debt of which the bond is the representative is a chose in action which has no locality, and will follow the residence of the owner. The mortgage, as security for the debt, is a conveyance of a qualified interest in the mortgaged premises, and creates an estate in lands. * * The legislature may, I think, select, as the situs of taxation of mortgages, either the political division where the owner resides or that in which the mortgaged premises are situate." It must be admitted, of course, that the constitution of New Jersey does not require all property to be taxed, but the point in the case lies in the fact that it recognizes the right of the legislature, when it determines to tax lands, to permit mortgage values to be deducted therefrom, notwithstanding the requirement that property is to be assessed at its "true value."

The

We are not led to doubt whether the conclusion we have reached is right because under former legislation taxes have not been treated as debts which the owner was bound to pay. As before shown, they may be so treated, and we must regard the statute as a legislative recognition of the fact that, substantially speaking, the burden is upon the owner. Nor can we accept the view that the enactment in question is sporadic, and therefore to be treated as a legislative misfit in our system of taxation. In Lutz v. City of Crawfordsville, 109 Ind. 466, 468, 10 N. E. 411, 412, the court said of the construction of statutes enacted at different times, but upon the same subject-matter: "If the legislature manifests an intention to create a system for the government of any subject, it is the duty of the court to effectuate that intention by such a construction as will make the system

consistent in all its parts and uniform in its operation. It would violate all rules of logic, as well as settled principles of law, to dissect the system into parts, and assign effect to each part, irrespective of its effect upon the uniformity and consistency of the entire system. Statutes are to be construed as a part of a uniform system, and such a scheme adopted as will give each part its appropriate place, and not destroy uniformity and harmony by cutting the system into disjointed and incongruous parts." The authorities are against appellee on the subject of classification. In addition to the authorities cited in the principal opinion, we cite Edwards v. People, 88 Ill. 340, 347, and People v. Barker, 155 N. Y. 230, 332, 49 N. E. 940, 941. In the former case the supreme court of Illinois said: "It is also objected that the revenue law is unconstitutional, because the method of assessing is not uniform. The fact that certain credits and deductions may be allowed in the assessment of personal property does not establish a want of uniformity. Where a law operates alike upon all persons and property like situated, it may be regarded as uniform. This, as we understand our revenue law, is its practical operation. Perfect equality of taxation is a problem of difficult solution." In the New York case the court of appeals reached the same conclusion, but upon a somewhat different course of reasoning. The court said: "The right to have debts deducted from the value of taxable property is not an absolute one, but in the nature of a favor. The state may grant or withhold it at pleasure. It was in the power of the state to tax all the property the relator had without providing for any deduction on account of debts. It cannot, therefore, be said that a law which permits the deductions as to certain debts and forbids it as to other debts violates any constitutional provision." On the subject of classification it is not difficult to accumulate extreme statements made by courts in the condemnation of statutes that so offend, but it materially conduces to a more intelligent understanding of the effect of such decisions if such statements are read in connection with the enactments they condemn. But if we may venture to attempt to extract the cardinal principle from the many discordant opinions upon the subject of classification, we may say that it will be found that what they condemn is a classification that is arbitrary, because it is not founded on differences recognized by the constitution, or naturally inhering in the subject-matter of the legislation to an extent that would at least suggest some reason why the lawmaking power, acting in a presumed spirit of fairness, should have made the distinction. As stated before, we perceive in the statute under consideration a substantial reason for distinguishing between mortgages or defeasible sales and mere liens. And there is also a substantial reason for not permitting

such deductions from personal property generally, since it is a fact, so well known as to be judicially recognized, that real estate bears more than its proportion of the burdens imposed by the state government.

The provision that not more than one-half of the assessed value of the property shall be allowed as a deduction is not arbitrary, although some mortgagors may gain a greater benefit from the law than others. There is a basis in reason for such requirement, in that a wise public policy is conserved by an enactment that, even if it releases a property owner from a part of the burden of taxation, still leaves him some portion of such burden, because his vote or influence is by that consideration likely to be cast on the side of holding public officers to due economy in the administration of public affairs. In Cooley, Tax'n, p. 170, it is said: "Even within the class taxed, however, there may be rules of distinction; and these are perfectly admissible, provided they are general rules, and are observed."

While the fact that the result of the upholding of this law may be to take millions of dollars worth of property from the state's assessment sheet has caused us to consider this case with great care, yet we cannot strike down the law for that reason. The question is political in its character, and, if the act is inimical to the interests of the state, the argument mentioned should be addressed to the general assembly.

The petition for a rehearing is overruled. All concur, except DOWLING and MONKS, JJ., who dissent.

(158 Ind. 503)

MODERN WOODMEN OF AMERICA ▼. NOYES et al.

(Supreme Court of Indiana. May 20, 1902.)

INSURANCE-FOREIGN ASSOCIATIONS-PRO

CESS-SERVICE-PLEADING-
SUFFICIENCY.

1. Process in an action on a life certificate against a foreign assessment life association which has not complied with Burns' Rev. St. 1901, § 4914s, requiring such a company to file with the state auditor a cousent that process against it be served on him, could be served ou the consul and clerk of the local camp to which a deceased member belonged, under section 318. authorizing service of process on the agent of a corporation if its chief officers are not in the county; and the association will not be heard to insist that service on the auditor should have been made.

2. Under Burns' Rev. St. 1901, § 373, providing that a general allegation in an action on a contract that plaintiff has performed all the conditions on his part shall be a sufficient allegation of the performance of a condition precedent, an allegation in a complaint in an action on a life policy that assured performed all conditions, rules, regulations, and requirements on his part was a sufficient allegation that he did not infringe a provision prohibiting voluntary self-destruction, even if it be regarded as a condition precedent.

3. The complaint in an action on a life policy which provides that voluntary self-destruc tion while insured is in possession of all his faculties will avoid the policy is not required to

allege that insured did not reach his death in such manner, the condition in the policy being an exception which must be pleaded by defendant if it relies thereon.

Appeal from circuit court, Steuben county; E. D. Hartman, Judge.

Action on a life certificate by Cora B. Noyes and others against the Modern Woodmen of America. From a judgment for plaintiffs, the defendant appeals. Transferred from appellate court by virtue of the act of March 13, 1901 (Acts 1901, p. 590; Burns' Rev. St. 1901, 1337u). Affirmed.

Best, Bratton & Yotter, for appellant. J. G. Yeogley, W. G. Croxton, and F. M. Powers, for appellees.

GILLETT, J. The appellees brought this action against appellant in the court below upon a policy of insurance or benefit certificate issued by appellant to appellees, insuring the life of one Frank Noyes. On the 14th day of September, 1899, appellant was defaulted, and, upon a submission of the cause, final judgment was rendered against it for the amount of said policy or certificate. Sixteen days later appellant appeared specially, and filed a verified motion to set aside the default and vacate the judgment; but this motion was overruled, to which ruling appellant excepted, and it has taken the proper steps to present the question as to the correctness of said ruling for our consideration.

As the appearance of appellant was in form special, and for the sole purpose of the motion, the court was authorized to overrule said motion, if it had theretofore obtained jurisdiction over the person of the appellant. It is upon the theory that there was no such jurisdiction, and not on the theory that the court should have relieved it on the ground of inadvertence, that appellant's counsel now contend that said motion should have been sustained. The service of process upon which appellees rely to support their judgment was had upon the chief officers, including the consul and the clerk, of a local lodge of said appellant, designated by it as local camp No. 4,789. It appears from said motion that the appellant is a foreign fraternal and beneficial corporation; that it has a system of local camps, possessing a ritualistic form of work, and a representative form of government; that it has two classes of members,-social and beneficial; that, if a person becomes a beneficial member of said society, he is required to make application for such membership to one of its local camps; that, if such camp approves the application, it is forwarded to the supreme officers of said order, and, if they approve it, a benefit certificate, such as the one sued on, is transmitted to the local camp, and upon the applicant being initiated into said camp the certificate is countersigned by the consul and clerk of the local camp, and the applicant thereupon becomes entitled to said certificate, which authorizes the beneficiary therein nam

ed to recover the amount thereof upon the death of the assured, provided that the conditions of said certificate have been performed. It further appears from said motion that said Frank Noyes made his application for membership in said society, as a beneficial member, through said local camp No. 4,789; that he was inducted by said local camp into said society as a beneficial member thereof, and that the certificate sued on was issued to him by appellant; and that it was duly countersigned by the consul and clerk of said local camp. There are other allegations of fact in said motion, but they do not bear upon the question that is now before us. It appears that the appellant had failed to deposit with the auditor of state a certified copy of a vote or resolution of the board of directors of said society, consenting that service of process in any suit against said society might be served upon the auditor of state, with like effect as if such society was incorporated in this state, as required by Acts 1897, p. 318, § 19 (section 4914s, Burns' Rev. St. 1901). It is contended by appellant's counsel, notwithstanding such omission, that it was not competent to serve it with process under the provisions of the Code, because service upon the auditor of state would have been a sufficient service as against appellant, even without the written consent being deposited, for the reason that the society would have been estopped to deny the validity of such service, having done business in the state. The cases of Ehrman v. Insurance Co. (D. C.) 1 Fed. 471, 1 McCrary, 123, Knapp, Stout & Co. v. National Mut. Fire Ins. Co. (C. C.) 30 Fed. 607, and Hagerman v. Slate Co., 97 Pa. 534, are cited in support of the proposition as to an estoppel. The claim of an estoppel in such cases has a basis in sound reason where the judgment under attack is based on such service, but where the service was not had on the auditor of state the society cannot be heard to insist that service shall be had upon it under a statute that it has disregarded. The requirement of section 20 of said act that service shall be had upon the auditor of state only applies, by the express terms of said section, to such foreign life insurance companies as are doing business in this state under the provisions of said act. We think that, under the circumstances of this case, the service that was had under the provisions of the Code was sufficient. Section 318, Burns' Rev. St. 1901; Catholic Benev. Legion v. Boyle, 15 Ind. App. 342, 44 N. E. 56; Funk v. Insurance Co. (C. C.) 27 Fed. 336; Clews v. Railroad, 49 How. Prac. 117. See, as to service upon foreign corporations generally, note to Foster v. Lumber Co., 5 S. D. 57, 58 N. W. 9, as reported in 23 L. R. A. 490, 49 Am. St. Rep. 859.

The appellant, by a proper assignment of error, presents the question as to whether the complaint states facts sufficient to constitute a cause of action. It is claimed by appellant's

counsel that, in view of the provisions of the certificate sued on, the complaint should have alleged that said Frank Noyes did not die "as a result of any means or act which, had such means or act been used or done by him while in the possession of all his natural faculties unimpaired, would be deemed self-destruction." The complaint alleges, among other things, that the assured "fully paid all dues and assessments levied and charged against him on account of his said membership and benefit certificate aforesaid, and kept, done, and performed all the conditions, rules, regulations, and requirements upon his part with said defendant." If the clause in the certificate relative to death by self-destruction is to be regarded as a condition precedent, the above general averments of performance were sufficient, under the Code, in view of the provisions of the certificate. Section 373, Burns' Rev. St. 1901. The certificate sued on contains a general engagement to pay the beneficiaries in case of the death of said Frank Noyes while a beneficiary member of the society in good standing. In a subsequent portion of the instrument it is provided that it "is issued and accepted only upon the following express warranties, conditions, and agreements: * (5) If the member holding this certificate * * shall die within three years after becoming a member of this society, as a result of any means or act which, had such means or act been used or done by him while in possession of all of his natural faculties unimpaired, would be deemed selfdestruction, * then this certificate

# *

*

shall be null and void." We think, in view of the fact that the engagement to pay was general, at least as far as the particular under consideration is concerned, and that the provision for nonliability in the particular contingency was in the nature of an exception, it devolved upon appellant to aver and prove, as a matter of defense, facts bringing it within the exception. As said in Louisville Underwriters v. Durland, 123 Ind. 544, 547, 24 N. E. 221, 222, 7 L. R. A. 399: "If they amount to warranties, or are exceptions (and they are given both names by the appellant), it was not necessary that their violation be negatived in the complaint. It is not required of the plaintiff in an action on an insurance policy that he in his complaint negative warranties and exceptions stated in the policy. If the loss is within a warranty or exception, it is matter of defense, which must be pleaded affirmatively by the defendant. Association v. Grauman, 107 Ind. 288, 7 N. E. 233; Insurance Co. v. Ewing, 92 U. S. 377, 23 L. Ed. 610; Insurance Co. v. Daly, 65 Ind. 6; Insurance Co. v. Hazelett, 105 Ind. 212, 4 N. E. 582, 55 Am. Rep. 192; Insurance Co. v. Pickel (Ind. Sup.) 21 N. E. 546, 12 Am. St. Rep. 393; May, Ins. § 183."

There is no error in the record. Judgment. affirmed.

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