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of the legislature approved March 2, 1897 (Acts 1897, p. 113), which is supplemental to the general laws pertaining to cities, provides "that common councils of incorporated cities shall have the power to enact and enforce ordinances; * second, to license, tax, and regulate vehicles. This provision of the statute is not intended to apply to vehicles as property, but is applicable only to taxing or regulating their use upon the public streets of a city. The charter of the city of Indianapolis confers upon the common council the power "to license, tax and regulate wheeled vehicles," and provides that the funds derived therefrom shall be applied only to the maintenance and repair of the streets and alleys of the city. The council passed an ordinance whereby a license tax was imposed for the use of certain specified vehicles on the streets of the city. In the appeal of Tomlinson v. City of Indianapolis, 144 Ind. 142, 43 N. E. 9, 36 L. R. A. 413, the appellant was a nonresident of the city of Indianapolis, engaged in marketing garden produce without having procured a license for his market wagon as required by the ordinance. He was convicted for a violation thereof in using his unlicensed wagon on the public streets of the city, and on appeal to this court it was held that the city, under its charter, was fully empowered to require a nonresident of the city to pay a license fee for using its streets by running a market wagon thereon, in like manner as residents of the city were required to pay under the ordinance. In that case it was said that the license fee exacted was not a tax on personal property, but was rather in the nature of a toll charged for the use of the improved streets over which vehicles were driven. The writer of the opinion, however, in that case, seems to have fallen into the error of asserting, in effect, that the city, in exacting the license tax, was doing so in the exercise of the police power, and not of the taxing power expressly conferred upon it by the legislature.

There is no force in the claim of counsel for appellees that the ordinance herein involved violates section 1 of article 10 of the state constitution, which provides for a uniform and equal rate of assessment and taxation; for it has been decided by this court, and is affirmed by other authorities, in respect to similar constitutional provisions, that this section of our fundamental law relates to a general assessment of taxes on property ac cording to its value. Thomasson v. State, 15 Ind. 449, and cases there cited; Johnson v. Mayor, etc., 58 N. J. Law, 604, 33 Atl. 850; Burroughs, Tax'n, § 77. By section 3623, Burns' Rev. St. 1901 (section 3161, Horner's Rev. St. 1901), the common council of the city of Terre Haute at the time the ordinance in controversy was adopted was given exclusive power over its public streets. The city, under this authority, held such streets in trust for public purposes. Adams v. Car Co., 131 Ind. 375, 31 N. E. 57, and cases cited. In addition

to the powers conferred by the above section and other provisions of law by which the city was controlled, it, as we have shown, was expressly empowered by the legislature in 1897 not only to license and regulate vehicles, but also to tax them. It must be conceded that cities and towns of this state cannot exercise the power of taxation, under the guise of a license or otherwise, unless such power is unequivocally conferred upon them by the legislature. When such power is, however, clearly conferred upon such municipalities, courts have generally upheld the proper exercise thereof. The running of hacks, carriages, and other vehicles over the streets of a city, whether used thereon for public or private purposes, will necessarily, in the course of time, impair and wear them out; and, by reason of this well-recognized fact, cities are subjected to large expenditures of money to repair the wear and tear upon their streets due, in the main, to the use or running of vehicles thereon. Under such circumstances there is nothing unjust or wrong in a city, when so empowered by the legislature, requiring the payment of a properly or reasonably graduated tax, as in the case at bar, which must be considered in the nature of a toll imposed for the exercise of the privilege of using the streets by the means of vehicles. In fact, the right of exacting the payment of such a license tax is akin to the principle by which the establishment of toll roads over public highways by virtue of legislative authority, and the right to collect toll from persons traveling in vehicles thereon, is sustained. The legislature of this state has the right, and in the past has exercised the same, to authorize a turnpike company to lay out its road over a public highway, and to exact toll from those who drive vehicles thereon. While every person under like circumstances has the right to use such turnpike as a highway, nevertheless for the privilege of doing so he must pay the reasonable tribute or toll, laid on all travelers alike. Elliott, Roads & S. (2d Ed.) § 71; Cooley, Tax'n (2d Ed.) p. 130; Ang. High. (3d Ed.) § 8. In section 454 of Judge Elliott's work on Roads and Streets, that eminent author says: "A license or tax on all vehicles used for hire on the public streets may be enforced, although the owner of the vehicle so used lives outside of the city limits." That municipal corporations may be empowered by the legislature to impose a tax upon owners of vehicles for using the same upon the public streets is, as a general proposition, fully affirmed by the authorities. Burroughs, Tax'n, § 77; Chess v. Birmingham, 1 Grant, Cas. 438; Bennett v. Borough of Birmingham, 31 Pa. 16; Gartside v. City of East St. Louis, 43 Ill. 47; City of St. Louis v. Green, 7 Mo. App. 468 (vide Id., 70 Mo. 562); Johnson v. Mayor, etc., 58 N. J. Law, 604, 33 Atl. 850; Marmet v. State, 45 Ohio St. 63, 12 N. E. 463; Smith v. City of Louisville (Ky.) 6 S. W. 911; Tomlinson v. City of Indianapolis, 144 Ind. 142, 43 N. E. 9, 36 L. R. A. 413. See cases col

lected in footnote to the case last cited in 36 L. R. A. 413. In Burroughs, Tax'n, § 77, the author says: "When the amount of the fee is only such as would probably cover the expense of enforcing the regulations of the state as to the particular calling, it is under the police power; but when the fee is larger than is necessary for such purpose, and is exacted with reference to revenue, the license is issued under the taxing power of the state. This is a most convenient mode of taxation, and is recognized in the constitutions of most of the states, where it is contrasted with the property tax, in those provisions which limit the power of the state to tax property otherwise than by a uniform system and according to value. But whether mentioned in the constitution or not, the provisions as to equality and uniformity do not apply to taxes on licenses."

The fact that a vehicle is not used by its owner for hire, but is only used on the streets in his own business or for his own pleasure, is of no special importance, when the power is conferred to license and tax vehicles generally. The legislature of Maryland imposed a license tax on persons keeping or exhibiting for use a billiard table. A club organized for literary and social purposes kept a private billiard table for the use and amusement of its own members. This club, under the statute, in Germania v. State, 7 Md. 5, was held liable for the tax; the court holding therein that the state was empowered to tax the amusements of the people, either for revenue, or as a police regulation. That the power of the legislature in matters of taxation for public purposes is unlimited, except so far as restrained by the state or federal constitution, is well settled. Lowe v. Board, 156 Ind. 163, 59 N. E. 466, and cases there cited. That the state possesses plenary powers over public highways and streets is a proposition also well settled. While it is true that a public street of a city or town is a public highway open alike to travel thereon of every citizen, still this in no wise prevents the state, through the agency of its municipalities, from subjecting the right to use the street to reasonable conditions or restrictions. As cities in this state, under the law, are required to keep their streets in repair, the legislature, in the exercise of its discretion, appears to have deemed it proper to authorize common councils thereof, if they so desired, to exact that those who used them with wagons, carriages, and other vehicles should contribute to such repairs by the payment of a reasonable amount on account of such use. The ordinance in question seems to so grade the tax imposed that the owners of vehicles whose use of the streets in the course of time would subject them to the most wear are required to pay the greater tax. The tax being imposed, as disclosed by section 5 of the ordinance, for the purpose of raising revenue to be applied to the maintenance and repair of the streets, it would be inconsistent and unreasonable to

graduate the amount to be paid according to the value of the vehicles. Their value, under the circumstances, cannot be considered as a factor in regard to the wear or injury to the streets resulting from their use thereon; for it is manifest that a wagon or carriage worth not to exceed $50 might, in its use upon the streets, serve to wear them as much or more than one of the value of $500.

In our opinion, the ordinance is not open to any of the objections, constitutional or otherwise, urged by counsel for appellees; and as the power to adopt it, as we hold, was expressly conferred by the legislature, we are, for the reasons herein stated, constrained to sustain it as a valid exercise of the power conferred upon appellant's common council. It follows, therefore, and we so conclude, that the lower court erred in holding the ordinance void, and in enjoining appellant from enforcing it against the appellees. The judgment is therefore reversed, and the cause remanded to the lower court for further proceedings not inconsistent with this opinion.

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WILEY, C. J. Appellees sued appellant upon the common-law liability to recover damages for injury alleged to have been occasioned by its negligence in the shipment of a car load of stock from Switz City, Ind., a station on appellant's road, to the city of Indianapolis. The complaint was in a single paragraph, to which appellant addressed an answer in denial. The case was tried by the court, and, upon proper request, the court made a special finding of facts and stated its conclusions of law thereon. The conclusion of law was that appellees were entitled to recover a stated amount, and judgment in harmony therewith followed. By the special finding of facts, it was developed that appellees entered into a written contract with the Chicago, Indianapolis & Louisville Railroad Company to ship the car from Bloom

field to Switz City, where it was to be delivered to appellant to be carried to its destination. That contract is set out in full in the special findings, and contains provisions which attempt to limit the liability of the carrier as to certain specific matters. Appellant, seeks to have the court construe the provisions limiting its liability in the face of the fact that appellees have wholly failed to make a case as disclosed by their complaint. As the facts disclosed by the special findings are insufficient to uphold the judgment upon the theory of the complaint, we cannot, under the law as well settled, give time to the examination and decision of moot questions, the determination of which will serve no useful purpose, and which are not necessary to the decision of the case. See State v. Board of Com'rs of Grant Co., 153 Ind. 302, 54 N. E. 809, and cases there cited. The appellees having bottomed their action upon the common-law liability of appellant as a common carrier, on account of its alleged negligence, it cannot recover upon a written contract, and the court will not countenance a waiver of such fact, to the end that unnecessary questions may be decided. It is settled law that a party cannot sue upon a parol contract, and recover upon a written contract. He must recover upon the case made by his complaint or not at all. This rule is so familiar that comment is unnecessary. In the case of Sanders v. Hartge, 17 Ind. App. 243, 46 N. E. 604, this question was fully discussed, and the authorities collected and cited. We content ourselves by referring to that case.

Another well-settled rule of law is that a plaintiff must recover, if at all, upon the theory of his complaint. He cannot sue upon one theory and recover upon another. Railway Co. v. Renicker, 8 Ind. App. 404, 35 N. E. 1047, and authorities cited; Diltz v. Spahr, 16 Ind. App. 591, 45 N. E. 1066. The appellees having rested their case upon an oral contract, or, more strictly speaking, the commonlaw liability of appellant as a common carrier, they are bound by that theory, and cannot recover upon the contract disclosed by the special findings. The facts wholly fail to support the case as made by the complaint.

The judgment is reversed, and the court below is directed to grant appellant a new trial.

(29 Ind. App. 257)

ATTICA BRIDGE & MACHINE WORKS V. JOHNSON et al. (Appellate Court of Indiana, Division No. 2. June 4, 1902.)

FREE GRAVEL ROADS-CONSTRUCTION-SUBCONTRACTOR PURCHASE OF BRIDGES CONTRACTOR'S LIABILITY-LIEN.

One who contracts with a county to construct free gravel roads for it, and sublets the work of constructing two of them, is not liable for bridges sold on an independent contract to his subcontractor, nor is the seller entitled to a lien on the balance due him for the work for the price thereof, which his subcontractor had failed to pay, there being no statu

tory lien on such fund, which is created by Burns' Rev. St. 1901, § 6928, to pay for the construction of such roads and the cost of the proceedings.

Appeal from circuit court, Parke county; A. F. White, Judge.

Action by the Attica Bridge & Machine Works against John Johnson and others. From a judgment for defendants, plaintiff appeals. Affirmed.

1

J. M. Johns and E. Hunt, for appellant. Puett & McFaddin, Howard Maxwell, E. F. Marshall, and Crane & Anderson, for appellees.

COMSTOCK, J. This was an action commenced by the appellant in the court below to recover from John Johnson, Emmet F. Marshall, and the board of commissioners of Parke county, Ind., the price of four bridges sold and delivered by the appellant to Emmet F. Marshall, and by him placed upon two free gravel roads, the construction of which had been awarded by the commissioners of Parke county to the appellee John Johnson, by contract dated June 12, 1899. John Johnson sublet the contract for the construction of the two roads upon which the bridges were placed to Emmet F. Marshall, who completed the two roads, and they were accepted and paid for, except the sum of $414.50, which was held back on all the four roads, the construction of which was awarded to Mr. Johnson. The object of this suit is to have the price of the four bridges purchased by Emmet F. Marshall of the appellant paid out of the funds, $414.50, due appellee John Johnson upon the construction of the four roads awarded to him.

Ap

The complaint is in one paragraph. pellee Johnson filed a demurrer, which was overruled and exception taken. He then filed an answer in two paragraphs. First is a general denial; and the second paragraph avers that after the making of the contract between himself and Emmet F. Marshall, and before he had any knowledge or notice of any contract between Emmet F. Marshall and the Attica Bridge Company for the bridges furnished by appellant, they modified their contracts so that the money which said Johnson was to receive and pay out under the contract of June 12, 1899, should be paid to Emmet F. Marshall, and paid out by him. No demurrer was filed to this answer. The appellant filed a reply in general denial. The demurrer of Emmet F. Marshall to the complaint was sustained. The board of commissioners answered by a plea in the nature of an interpleader, and brought the money into court, for whoever the court might adjudge was entitled to receive the same. The money mentioned in this plea was received and held by the clerk to be paid out under the order of the court. The cause was put at issue. There was a trial by the court, and a finding for the defendants that the plaintiff was not entitled to recover on his com

plaint. Judgment in favor of appellees for costs, and that the money in the hands of the clerk be paid to Johnson.

The appellant has assigned as error the overruling of its motion for a new trial. The reasons assigned for a new trial are: (1) The finding of the court is not sustained by sufficient evidence; (2) the finding of the court is contrary to law.

The appellee John Johnson has assigned cross errors as follows: (1) The court erred in overruling the separate demurrer of John Johnson to the complaint.

A bond was given by John Johnson to the board of commissioners conditioned for the payment of the work, labor, and materials used in the construction of the four roads awarded to him. This action is not upon the bond. The bond is not set forth in the complaint in any way or made an exhibit thereof. It is alleged in the complaint that John Johnson was awarded the contract for the four roads; that he executed a bond, and that he afterwards sublet the construction of two of these roads to Emmet F. Marshall; that the contract was in writing, and that a copy is made a part of the complaint, marked "Exhibit C"; that after the execution of this contract John Johnson and Emmet F. Marshall, on the 15th day of June, 1899, entered into a further contract, denominated a supplemental contract. Both of these contracts are set forth in the complaint, from which it appears that John Johnson subcontracted the construction of two of these four roads to Emmet F. Marshall. The bridges furnished by the appellant to Marshall were sold and delivered by the appellant to Marshall, and were by him placed upon two roads he had agreed under his contract with John Johnson to construct, and which he did construct under the agreement. The plaintiff's complaint is based upon the theory that John Johnson is liable to the appellant for the value of the bridges furnished by the appellant under the independent contract with Emmet F. Marshall, who was, according to the terms of the complaint, a subcontractor of John Johnson, and that, by reason of the fact that the appellant furnished these bridges to Emmet F. Marshall, it has a lien upon the $414.50, the balance due John Johnson under his contract for the construction of the four roads, not only for the two bridges subcontracted to Emmet F. Marshall, but on the two roads constructed by John Johnson alone. This is the controlling question presented by the pleading and the evidence.

Appellant, having sold and delivered the bridges to an independent contractor, who had failed to pay therefor, claims a lien upon the balance of a fund due appellee Johnson for the construction of four bridges; $32 being the balance due Marshall on the two roads constructed by him. The contract for the construction of each road was separate. It is clear that appellant can have no claim

against the county. There is no personal liability on the part of Johnson. There is no statutory lien upon the fund. The right to a lien does not arise out of a contract. The fund against which appellant seeks to enforce a lien is created by statute to pay for the construction of gravel roads and the cost of the proceedings. Burns' Rev. St. 1901, § 6928. It follows that the judgment must be affirmed.

Counsel for appellee contend that the record presents no question for the consideration of this court. While not concurring in this, the conclusion reached renders it unnecessary to further refer to it, or to consider the cross error assigned by appellee Johnson.

(29 Ind. App. 248)

DORSEY v. DORSEY.

(Appellate Court of Indiana, Division No. 2. June 3, 1902.)

HUSBAND AND WIFE-ACTION FOR SUPPORTJUDGMENT-EVIDENCE-MODIFICA

TION OF JUDGMENT.

1. In an action by a wife for support it appeared that the defendant had deserted plaintiff and had assaulted her. Defendant was able-bodied and employed, and was earning wages, and owned certain personal property. Held, that a judgment against defendant for $50, payable in monthly installments of $5, was sustained.

2. A motion to modify a judgment on the ground that the evidence did not authorize it will not be considered.

Appeal from circuit court, Floyd county; Wm. C. Utz, Judge.

Action by Mary K. Dorsey against Solomon Dorsey. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

George H. Hester and Jacob Herter, for appellant. Kelso & Kelso, for appellee.

ROBY, J. Action by appellee against her husband, Solomon Dorsey, the appellant, and the New Albany Hosiery Mills, alleged to have been indebted to the appellant, and against whom a judgment for the payment of $4.50, found to so be due him, was rendered. It declines to join in this appeal. So far as the judgment against it is concerned, no question, therefore, need be decided.

She al

Appellee's suit was for support. leged, among other things, that appellant had deserted her without cause, leaving her without sufficient provision for her support; that he was employed, and able to support her; that she was unable to work for a living by reason of the fact that she had been disabled, her arm being broken by the defendant, her husband; that the defendant has personal property of the value of $300; that the hosiery mills is indebted to him; that she ought to have and that it will require the sum of $5 per week to support her.

The complaint is based upon sections 69776982, Burns' Rev. St. 1901. A demurrer was overruled to it, and the first assignment of error is that it does not state facts sufficient

to constitute a cause of action. No attack upon the sufficiency of the complaint is made, and the point is therefore waived.

The second assignment of error is based upon the action of the court in overruling appellant's motion for a new trial. The first reason given for a new trial was that the decision of the court is contrary to law. The third reason is that the decision and judgment of the court is not sustained by sufficient evidence. The evidence tends to sustain the averinents of the complaint with regard to the treatment of appellee and the charge of desertion. It not only tends to do so, but the testimony of appellant, while denying that he broke her arm, is in part as follows: "I did strike slightly with my open hand. It was because she quarreled with me, and would not let me have any peace. I don't think her eyes were blackened." He also says: "I never hit her with my fist at the time spoken of by Mrs. Hommerlein and Mrs. Kodalle." In the absence of other denial, it would not be an extreme statement to say that no finding other than that made by the court upon this part of the case was permissible. evidence also tends to show that appellant was the owner of certain personal property; that his co-defendant was indebted to him in the sum of $4.50; that he was an ablebodied man, employed and earning wages. The court rendered a judgment against him for $50, payable in monthly installments of $5 each, from which judgment he appeals. The appellant argues that the evidence does not show that he had any estate whatsoever, and that a personal judgment against him is in excess of the authority conferred by the statute. We think that the evidence does show that he had an estate, and it is therefore not necessary to decide the point made. There was no error in overruling the motion for a new trial.

The

The third assignment of error is that the court erred in overruling appellant's motion to modify the decree and judgment. The effect of the motion as made, if it had been sustained, would have been to entirely destroy the entire judgment. The argument in support of the assignment goes to the proposition that the court was not authorized under the evidence to render any judgment. A motion to modify a judgment on the ground that the evidence did not authorize it to be rendered cannot be sustained. Strange v. Tyler, 95 Ind. 396.

The judgment is affirmed, with 10 per cent. damages and costs.

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in defendant's steel works, stepped on the edge of an uncovered vat of molten metal to hammer a cogwheel into place, pursuant to defendant's directions, and struck and missed the wheel, and was thus forced to swing round and fall into the metal. The negligence charged was a failure to cover the vat and to inform plaintiff as to the danger, knowing the same, and that he was without experience, and that a missing blow would throw him into the metal; but it was not averred that he did not know for what the vat was used, nor that he lacked opportunity to observe it for himself. Held to show that he assumed an open and obvious risk, notwithstanding averments of inexperience and want of knowledge of the danger on the employé's part.

2. The averments were not sufficient to bring the case within Employers' Liability Act, § 1, subds. 2, 4 (Burns' Rev. St. 1901, § 7083), imposing a liability for the negligence of other employés.

3. Employers' Liability Act, § 1, subds. 2, 4, imposing a liability for the negligence of other employés, cannot be construed as lieving an employé from the caution and care of himself required by the common law.

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Appeal from superior court, Lake county. Action by Leo Pohlplotz against the Corning Steel Company. From a judgment for plaintiff, defendant appeals. Reversed.

Chas. F. Griffin and C. E. Heckler, for appellant. B. Borders, L. Becker, and Agnew & Kelly, for appellee.

ROBINSON, J. Suit for personal injuries. Complaint in two paragraphs, to which demurrers were overruled. Issues formed upon general denial, trial by jury, and verdict and judgment for appellee.

The first paragraph of the complaint avers that appellant is a corporation; that appellee is a minor 18 years of age, and on the 1st day of August, 1899, was employed by the appellant to work in its mills, and on the same day was put to work inspecting and handling steel plates, and kept at such work until August 17, 1899; that when appellee began work for appellant he had had no experience in or about a steel mill, and knew nothing whatever of the work or the danger of such a place, and that, when he began work, appellant, among other instruc tions given him, directed that at any time any of the machinery or appliances became broken or misplaced, and it became necessary to make repairs, he should quit his work, and go to the place where such repairs were being made, and watch the repair thereof, to the end that he might become familiar with the repairing and operation of such machinery; that on the 17th day of August a certain cogwheel became loosened and slipped from its place, and, in obedience to the directions before given him, appellee went to the place where the cogwheel was so misplaced; that the wheel was located over and above a pot of hot metal, and in such a place that, to replace it, it was necessary to stand upon the pot containing the hot metal, and drive the cogwheel into its place with a sledge hammer; that the appellant directed him to stand upon the edge of the

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