bids the payment of the salary allowance | tion of the word "salary." The dictionaries made by said act of 1903. are in accord that "salary" means payment

It follows that the judgment must be af- or recompense for services. If there were firmed.

Judgment affirmed.

any substantial disagreement in dictionary definitions, the one above given was long ago declared by this court to be correct, and, as this judicial declaration of the meaning of the word, under our Constitution, had been

MORRIS, C. J. (dissenting). The proper decision of the question of the repeal of the act of 1903 depends on whether the $300 al-made long before the enactment in controlowance made by the act was by the Legislature intended as an increase in the salaries of the judges therein designated, or as a reimbursement to them for their expenses in traveling to the courts in their districts where they did not reside.

versy, such declaration was binding on the Legislature, unless a contrary intent is clearly shown. Board v. Wasson, 74 Ind. 133; Cowdin v. Huff, 10 Ind. 83; 34 Cyc. 1826. The words "salary" and "compensation" are not of equivalent meaning. All salaries are compensations, but all compensations are not salaries. Compensation may be made for services, and then it is a salary; it may be made for labor, and then it is termed "wages." It may be made for injuries to person or property, and then it is called "damages." It may be made to one for expenses incurred incident to an undertaking, and then it might be appropriately called a "reimbursement." Standard Dictionary.

The title of the act of 1903 has in it no reference to salaries. The full title of the act is as follows: "An act concerning the compensation of judges of circuit and supe rior courts in certain cases." (Italics throughout opinion mine.)

Our Constitution requires the subject-matter of a statute to be expressed in its title, and therefore the title may be considered to ascertain the legislative intent. Western Const. Co. v. Board (1906) 166 Ind. 162, 76 N. E. 986. In construing a statute, the court will seek to discover and carry out the intention of the Legislature, and to that end will consider the title of the act, each and every part of the body of the act, the circumstances under which it was enacted, the old law on the subject, if any, other statutes on the same or relative subjects, whether in force or repealed, contemporaneous legislative history, and the evils and mischiefs sought to be remedied. State Board of Tax Commissioners v. Holliday (1898) 150 Ind. 216, 49 N. E. 14, 42 L. R. A. 826. The intent or spirit, rather than the letter, of the act, should govern. Board v. Given (1907) 169 Ind. 468, 80 N. E. 965, 82 N. E. 918, and cases cited. Words are to be given their ordinary meaning, unless thereby the legislative intent would be defeated. If there is no ambiguity in a stat-ury otherwise than for salaries for services ute, and the legislative intention is not doubtful, of course, there is no necessity for construction; but an ambiguous statute will be so construed, if possible, as to prevent absurdity, hardship, or injustice. Indianapolis, etc., R. Co. v. Waddington, 169 Ind. 448, 82 N. E. 1030; Sutherland, Statutory Construction, § 324. Repeals of statutes by implication are never favored, and where one theory of construction would render a statute unconstitutional, and the other would render it constitutional, the latter must be adopted. Smith v. Indianapolis, etc., R. Co. (1901) 158 Ind. 425, 63 N. E. 849.

If this allowance was a salary increase, undoubtedly it was intended to be repealed by the clause of the act of 1907, which provides that "no other or different salary allowance shall be made or paid by the state." If, on the other hand, this $300 allowance act of 1903 was intended to reimburse the judges for their traveling expenses, it is equally clear that it was not repealed by the act of 1907, for the latter act, in express terms, deals only with salaries, and, even if repeals by implication were favored, instead of being in disfavor, there would be no ground on which to predicate an implication.

The title of the act of 1907 is as follows: "An act fixing the compensation to be paid out of the state treasury as salary to the judges," etc. It is thus revealed that the Legislature of 1907, in the title to that act, clearly recognized that certain judges were then being compensated from the state treas

rendered, or it would have been unnecessary to limit the compensation to the "salary" paid.

It is true that in the body of the act of 1903 it provides that the $300 compensation shall be made "in addition to the salary now provided by law," and it shall be "added to the salary of such judge." The real intent of the Legislature is evinced in the phrase, "in lieu of traveling expenses." Can there be any doubt about the legislative intent? Surely it was the sole purpose of the act to reimburse such judges for their expenses incurred for traveling to the county or counties, other than the one of residence, to hold court, when expenses would rationally include railway fare and hotel bills. And is it not equally clear that the clause "in addition to the salary," etc., was inserted solely to evince the intention that the present salary allowed should not be cut down by reason of this allowance. Would not the meaning have been as clearly expressed, had the act declared that this allowance was made outside of, or beyond, the present salaries?

The Attorney General, Mr. Bingham, in his very carefully prepared brief in this cause, filed in 1910, asserts as one of the propos1

the law that free transportation should be given judges by common carriers of passengers. Consequently, the judges had to pay their railroad fares and hotel bills from their own purses, with the result of a depletion, in that amount, of their income received from salary, and from other sources, if any. This resulted in the judge of two or more counties receiving a less net income than the judge of a single county, although the services of the latter were in some cases much less than those of the former, and the population of the single county circuit was much less than of the two or more county circuit. Undoubtedly it was to correct this glaring unfairness that the act of 1903 was passed. It is unjust to say that this act of 1907 imputes to the Legislature the intent to deliberately undo its work of 1903, which righted this wrong.

penses of these judges are in themselves "serv- | judge's home. It was never contemplated by ices," and may well fall within the meaning of the word "salary," and be considered as such, and cites Somers v. Keliher, 115 Mass. 165, Tracy v. Waters, 162 Mass. 562, 39 N. E. 190, and Yost v. Scott County, 25 Minn. 366, in support thereof. It seems to me that the above proposition must be established, or the theory of the repeal must fail; for it is absolutely certain that the act of 1907 repealed no former compensation act, unless the compensation was allowed as salary. The authorities cited fall far short of supporting the proposition of the Attorney General. Giving the word "salary" the definition declared by this court in Board v. Wasson, supra, this proposition inevitably leads to an absurdity. Words in a statute must ordinarily be given their common meaning. To hold that in buying a railroad ticket, or paying for a meal at a hotel or restaurant, a judge is rendering judicial services, is obviously at variance with the principles of sound reasoning. While it would be the duty of this court, in construing an enactment, which unquestionably intended, in using the word "black," to mean thereby "white," to give to the word the meaning intended, it nevertheless remains that a legislative body cannot change the attributes or characteristics of colors. And no enactment of legislative body, or decree of judicial tribunal, can ever alter the fact that in purchasing transportation or sustenance a judge is not performing a judicial act.

The laborer is worthy of his hire, and judges are entitled to fair compensation. No officers of the state, not even the Governor or judges of the courts of appellate jurisdiction, render any more important services to the people of the state than do the judges of the circuit and superior courts. Their duties require learning, patience, and industry, and no one, however high his office, can perform a more worthy service than that of administering impartial justice between man and man, and I cannot believe it was the intention of the lawmaking body, by its act of 1907, to repeal, by questionable imIn construing an ambiguous act, it is prop- plication, the fair enactment of 1903, tardily er for the court to consider the reasonable- passed, to be sure, but at length recognizing ness or unreasonableness of a theory of con- that judges in the two or more county disstruction asserted. This is so, because Legis-tricts were as much entitled to reimburselatures, like individuals, are impelled by some reason in the doing of every act. And in seeking such reason a consideration of the conditions and surroundings is of vital importance.

ment for traveling expenses as were legislators, sheriffs, tax commissioners, and other officers.

Another rule for the construction of ambiguous statutes is that where one proposed theory of construction would render the act unconstitutional and another would not, the latter will be adopted. If the theory of the Attorney General is to be adopted, I see no escape from the conclusion that such theory would have rendered the act of 1903 uncon

The Legislature, previous to 1903, had provided generally for reimbursing state and county officers for traveling expenses incurred when required to leave the county where their offices are situated. It had even provided for the allowance of mileage to legislators. It likewise provided for the reim-stitutional in its inception, and this view was bursement of sheriffs for their expenses in taking prisoners to state penal institutions, and taking the insane to the state hospitals, and a like reimbursement to the members of the State Tax Commission, and other officers. This reimbursement was generally, as in the act of 1903, made in a lump sum, in such amount as the Legislature deemed would, on the average, recompense the officer; sheriffs and legislators, for example, being allowed so much per mile necessarily traveled.

But, previous to 1903, judges had been overlooked. The law requires the judge in a district composed of two or more counties to hold terms of court at definite times each year, of stated duration, in each county of the district. In some districts more time must be

adopted by the learned judge of the superior court, who had heard the case below, and who, while holding good the return of the State Auditor to the alternative writ of mandate, which alleged, in substance, that the Legislature had made no appropriation out of which to pay the relator, nevertheless held that the act of 1907 did not have the effect of repealing the act of 1903.

Our Constitution, while not denying the Legislature the power to reimburse judges, as well as other state officers, for traveling expenses, does prohibit local or special legislation in regard to salaries, except that, by the amendment of 1881, it may pass such special acts, if the salaries are graded according to population and services. Const.

be idle to say that, if the 1903 allowance was | visions of these two independent statutes salary, the act of 1907, in taking from the can be reconciled with each other, so as to judge of the Fourteenth circuit his $300 allow both to stand * it is the duty salary and making his total salary the same of a court * so to adjudge and hold." as that of the judge of the Fifty-Fifth cir- On page 610 of 160 Ind., on page 924 of cuit, did not thereby in effect reduce the 65 N. E. (66 N. E. 946, 67 N. E. 448), the salary of the former below that of the latter, court said: "Had the Legislature intended in a sum equal to his traveling expenses, and to deny a county auditor the right to former that this grading was not made on the basis compensation, it could have easily, by the of population and services. employment of but very few words in either On the other hand, if the act of 1903 pro- statute, expressed its will in this respect." vided a reimbursement for traveling expens- The above case has never been heretofore es, as indicated by the title and body of the overruled. It was approved in State ex rel. act, and by the surrounding circumstances v. Flynn, 161 Ind. 582, 69 N. E. 159. Surely and conditions, all constitutional objections it cannot be contended that in holding that to that act and the one of 1907 disappear, and the Legislature is relieved of the imputation of the deliberate unfairness of taking from worthy public servants the compensation for traveling expenses which it retained for its own members and for other officers. In Seiler v. State ex rel., 160 Ind. 605, 65 N. E. 922, 66 N. E. 946, 67 N. E. 448, this court decided that a county auditor is entitled to the $3 per diem compensation, when acting as a member of the county board of review, in addition to his salary allowed by law.

Section 114 of the tax act of 1891, as amended March 1, 1895, provided that "such board shall be composed of the county assessor, county auditor and county treasurer, and two freeholders to be appointed by the judge of the circuit court, who shall each be paid out of the county treasury, in the sum of $3.00 for each and every day while they are acting as members of said board." Burns 1901, § 8532. Ten days after the above section was amended, the fee and salary law of 1895 was passed. Acts 1895, p. 319 et seq. Section 21 of the act provided

that the officers therein named should re

this act of 1907 repeals the act of 1903 in question the holding in Seiler v. State, supra, is not thereby inpliedly overruled. Had the Legislature of 1907 intended the repeal of the act of 1903, its intention so to do might have been expressed in a single line; and where it is not so expressed I cannot believe that the intention to perpetrate this injustice to worthy public servants should be imputed to it by the words used in the act, which, standing alone, in my opinion, evince no intention to withdraw from these judges the just reimbursement of their traveling expenses.

It is manifest that mandamus will not lie to compel a state auditor to draw a warrant against a fund where no appropriation therefore has been made, and for that reason alone, as held by the lower court, the relator was not entitled to relief, and consequently the judgment should be affirmed; but I cannot assent to the proposition, brought into the case by the cross-errors assigned by the Attorney General, that the act of 1903 was repealed.

v. PERU STEEL CASTING CO.

(No. 7,371.)

ceive "the compensation specified in this act," CAL HIRSCH & SONS IRON & RAIL CO. and should receive "no other compensation whatever." Section 116 of the act provided that, where the auditor was entitled under (Appellate Court of Indiana, Division No. 2. existing law to receive any "compensation" in his own favor for services, he should thereafter tax the amount on account of such service in favor of the county, and pay it into the county treasury.

It will be noted that in section 21 of the act of 1895 the word "compensation" is used, which has a broader signification than "salary," and would include fees and wages, as well as salary; and consequently, for that reason alone, the legislative intent to repeal was much more strongly implied there than in the act of 1907 in question.

In deciding the case, the court said, on page 614 of 160 Ind., on page 925 of 65 N. E. (C6 N. E. 946, 67 N. E. 448): "Repeals or modifications of statutes by implication are not favorably recognized by the law. Therefore, if upon any reasonable ground the pro

Dec. 15, 1911.)

1. APPEAL AND ERROR (§ 1078*) - REVIEW WAIVER OF ERROR-FAILURE TO BRIEF.

Error assigned is waived by failing to make any argument or cite any authority in support. Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 1078.*]

2. APPEAL AND ERROR (§ 757*) — REVIEW —
WAIVER OF ERROR-FAILURE TO SET OUT
MOTION FOR NEW TRIAL IN BRIEF-RULES
OF COURT.

Under Supreme and Appellate Courts Rule 22, cl. 5 (55 N. E. vi), a specification of error I will not be considered on appeal unless the brief contains so much of the record as fully presents the error relied on, so that error assigned on the by a failure to set out in the brief either a copy overruling of a motion for a new trial is waived of the motion or its substance.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*]

3. CONTRACTS (§ 16*) — REQUISITES - ACCEPT- | paid for at the agreed price, and that appelANCE-UNCONDITIONAL. lee refused to accept the remainder. The second paragraph is identical with the first. except that it counted upon an executory contract of sale instead of an executed one. The third paragraph counted upon a parol contract for a sale of the same material, and.

A contract is created by an offer and an unconditional acceptance in the terms of the offer. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 71-93; Dec. Dig. § 16.*] 4. EVIDENCE (§ 461*)-PAROL EVIDENCE-IN

TENTION OF PARTIES.

Where the words of a writing clearly express the intention of the parties, such intention will prevail, and extraneous evidence cannot be admitted to show a contrary intention.

LETTER.

* *

*

for the purpose of taking the contract out of the operation of the statute of frauds, alleged facts to show a partial delivery and [Ed. Note. For other cases, see Evidence, acceptance by the defendant. The fourth Cent. Dig. §§ 2129-2133; Dec. Dig. § 461.*] paragraph is identical with the third, except 5. SALES (§ 71*)-CONSTRUCTION OF CONTRACT that it counted upon an executory instead of -INTENTION OF PARTIES-CONSTRUCTION OF an executed parol contract. The fifth and Where, in an action for breach of an alleg-sixth paragraphs were based upon an aced contract for the sale of 500 tons of scrap count for $11 for freight paid by appellant; steel, the acceptance of the plaintiff's offer to but, as there was no evidence introduced in sell, relied upon, was a letter which states that: "We have decided to give you an order for support of either of these paragraphs, they sample car subject to our approval of the five will not be further considered. The appellee hundred tons mentioned some time ago. demurred separately to each paragraph of The order is given on condition that you can make immediate shipment of the sample car, for the amended complaint. The demurrer was if the scrap does not prove satisfactory, we will sustained as to the first and second, and want to have time to investigate sources of sup- overruled as to the remaining, paragraphs. ply elsewhere"-the fact that the order was ex- Issues were formed on this complaint and pressly limited to a sample car indicates that there was no intention at that time to order the case submitted to a jury, which returnmore, and it cannot be construed as an accept- ed a verdict in favor of appellee. Appellant ance of the previous offer to sell 500 tons. filed a motion for a new trial, which was overruled, and the court rendered judgment in favor of appellee and against the appellant for costs. Appellant assigns the following errors: First, the court erred in sustaining the demurrer of appellee to the first paragraph of appellant's amended complaint filed February 5, 1909; second, the court erred in sustaining the demurrer of appellee to the second paragraph of appellant's amended complaint filed February 5, 1909; third, the court erred in overruling appellant's motion for a new trial; fourth, the judgment appealed from is not fairly sup ported by the evidence; fifth, the judgment appealed from is clearly against the weight of the evidence.

[Ed. Note.-For other cases, see Sales, Dec. Dig. § 71.*]

6. APPEAL AND ERROR (§ 294*) — REVIEW SUFFICIENCY OF EVIDENCE-DIRECT ASSIGNMENT-STATUTORY PROVISION.

Section 8 of an act approved March 9, 1903 (Acts 1903, c. 193), which provides for the review of evidence by the Supreme and Appellate Courts in cases not triable by a jury, where required by the assignment of errors, will not apply where a case was triable by a jury and was so tried, and an attempt by direct assignment to question the sufficiency of the evidence in such case is unavailing; the proper procedure being to assign, as one of the causes for a new trial, that the verdict or decision is not sustained by sufficient evidence, and then assigning as error the action of the trial court overruling the motion for a new trial.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 294.*]

Appeal from Circuit Court, Miami County; J. N. Tillett, Judge.

[1] Appellant has waived the first error assigned by failing to make any argument or to cite any authority in support thereof. Action by Cal Hirsch & Sons Iron & Rail Hamilton v. Hanneman, 20 Ind. App. 16, 50 Company against the Peru Steel Casting Com-N. E. 43; Delaware, etc., Co. v. Fiske, 40 pany. From an action for defendant, plain- Ind. App. 348, 81 N. E. 1100. tiff appeals. Affirmed.

A. L. Hirsch and Antrim & McClintic, for appellant. Charles A. Cole and Albert H. Cole, for appellee.

[2] Appellant has waived the third error assigned by a failure to set out in its brief a copy of the motion for a new trial or set out the substance of said motion. It is impossible for any judge of this court not in possession of the record to know, from an LAIRY, J. The appellant, as plaintiff, examination of appellant's brief, what causes sued appellee in the Miami circuit court to were assigned in its motion for a new trial. recover damages for the breach of an alleg- This court cannot consider a specification of ed contract for the sale of 500 tons of melt- error, unless the brief of appellant contains ing scrap steel at the agreed price of $20.50 a concise statement of so much of the record per ton. The complaint was in six paragraphs. as fully presents the error relied upon. Rule The first paragraph counted upon an execut- 22, clause 5 (55 N. E. vi) of the Supreme and ed sale in writing by appellant to appellee Appellate Courts; Springer v. Bricker, 165 of 500 tons of melting scrap steel, at the Ind. 532, 76 N. E. 114; Kilmer v. Moneyprice of $20.50 per gross ton, alleging that weight Co., 36 Ind. App. 568, 76 N. E. 271. a portion of the same had been accepted and' In order to raise any question presented by