ing the length of the drain, if "the court shall find that such drain, as originally constructed and as existing, is not sufficient to properly drain the lands intended," but that the proposed improvement probably will do so, "and will, if made, be of public utility," then the right of two-thirds in number of the resident owners of lands affected to defeat the proceeding and cause the petition to be dismissed, by merely filing a remonstrance stating that they are opposed to the construction of the drain, is denied. Section 6174, Burns' 1914; chapter 65, p. 152, Acts 1913. or betterment of any such ditch or drain in Section 10 of the original act of 1907, in which section 19 was found, provided "that all ditches or drains that may have been, or may hereafter be, constructed under and by virtue of any law of this state, shall, except as hereinafter otherwise provided, be under the charge and supervision of the trustee of the township * whose duty it shall be to see that the same are cleaned out and kept open and in proper repair, free from obstruction, so as to answer their purpose." Succeeding sections, down to and including section 16, provided the manner in which the township trustee, with the aid of the county surveyor, should cause ditches and drains to be cleaned and repaired, and how payment of the expense should be enforced, and contained provisions for an appeal to the circuit court. And section 20 provided that "the repair of all drains or ditches other than dredge ditches, shall be in the hands of "All other ditches or drains may be repaired the township trustees in whose townships and maintained in conformity with the provisuch ditches or any part thereof may be sit- sions of this act, or of 'an act conuated," with provisos authorizing the trustee cerning the maintenance and repair of all ditchto have the work done by the county survey-es and drains, except dredge ditches, by the sevor under certain circumstances, and provid-eral township trustees,' which two said acts shall ing that any trustee neglecting to perform as affording optional methods for the repair be construed as supplemental to each other, and the duties imposed on him by the act should and maintenance of such ditches and drains as be punished by a fine. The act of 1915, reare contemplated in both acts." lied on as repealing the amended section 19, expressly repealed all of these sections by which the township trustee was given authority and charged with duties in the matter of cleaning and repairing ditches, referring to each of them by number, as was stated above. In other words, the act relied on as reThe first section provided that "the cleaning, pealing the amended section 19 contained repair, betterment, improvement and gen- provisions in very general terms for cleaning, eral superintendence of all ditches and drains repairing, and keeping open "all ditches and contemplated in this act, shall, except as drains contemplated by such act," but exhereinafter otherwise provided, be under the pressly provided that the method so provided exclusive charge and supervision of the should not be exclusive as to very large board of commissioners," which, "under the classes of ditches and drains to which it ap conditions prescribed in this act," was "au- plied, but which might, nevertheless, be thorized and required to perform the follow-cleaned, repaired, and maintained by the ing duties: (1) To see that all such ditches township trustees or by sanitary districts, and drains are cleaned out and kept open and failed to contain any provisions to the efand in proper repair and free from obstruc- fect that the method which it provided was tion, in conformity with the original specifi- meant to be exclusive. And while it expresscations thereof, and in such manner that ly repealed two acts for the maintenance and they may fully and completely discharge the repair of public dredge ditches, and also functions for which they were designed and eight sections of the statute of which section intended. (2) To authorize the improvement | 19 formed a part, designating those sections And section 36 provided that the act should not repeal chapter 152, Acts 1905, p. 447, forbidding the drainage of fresh water lakes, but should be supplemental thereto. (154 N.E.) [3] It is only when a statute or section thereof has been wholly repealed, so that none of its provisions remain in force, that the Legislature is without power to enact valid legislation within the scope of its title by way of amending it, not by reason of a mere partial repeal of some parts of it. Heffelfinger v. City of Ft. Wayne, 196 Ind. 689, 694, 149 N. E. 555. Repeals by implication are not favored. Jeffersonville, etc., R. Co. v. Dunlap, 112 Ind. 93, 96, 13 N. E. 403; Huff v. Fetch, 194 Ind. 570, 579, 143 N. E. 705; Greathouse v. Board (Ind. Sup.) 151 N. E. 411, 415. [4] And in the absence of any declared purpose that one statute shall repeal another relating to the same subject-matter, they will be given such a construction, if that be reasonably possible, that both may be given effect. Kramer v. Beebe, 186 Ind. 349, 355, 115 N. E. 83. by numbers both higher and lower than 19, | ural water courses in a natural watershed or it did not express a purpose to repeal section basin, including approximately 600 acres of 19, that authorized a special proceeding by land, the different parcels of which are owned which to make a public drain "sufficient by the parties to this action, and that all the properly to perform the drainage for which surplus water which falls upon the 600 acres it was designed and intended." naturally and necessarily finds its outlet through the ditch and its branches. That the viewers who laid out the ditch and its branches assessed with benefits for the original construction of the ditch and its branches only 389 acres of the 600 acres within the watershed. That immediately after the construction of the ditches there were certain small areas through which the upper end of the main ditch extended that had been assessed as benefited, but which overflowed in times of freshet so that the crops planted therein were drowned out, and that such overflows had occurred from time to time up to the filing of the petition herein and still continued. (The undisputed evidence showed that these were low places of about ten acres on the farm of Straus Bros. Company and twelve acres on the farm of appellant Henry, described as being "ponds" in wet weather.) That after said drain and its branches were constructed, lateral tiles were extended therefrom to drain the lands within the natural watershed both by the petitioners and the remonstrators, which do not carry into the original drains any more water than would otherwise naturally flow into them without such laterals, but which conduct the water to said drains with greater speed and therefore require greater capacity in the main drain, and by reason of the larger volume of water now brought into the main ditch and its branches by means of such tiles in shorter periods of time, the main drain and its branches have become "more inadequate from year to year" as the underground drainage has increased. that there is one lateral that was constructed (by a former owner) on the tract of land now owned by the Straus Bros. Company, which crosses the line of the watershed (to what distance is not stated), and which was constructed with the intention of draining portions of the tract of land lying west of the watershed (but how much thereof is not stated, nor is there a finding that any lands outside the watershed are thereby drained). The court further found that twelve landowners, who were residents of the county, out of fourteen such owners, had filed a remonstrance against the improvement petitioned for, and that they constituted more than two-thirds of all the landowners, who would be affected, and owned more than 50 per cent. of the lands abutting on the drain and its branches. [5, 6] In the construction of statutes, specific provisions will prevail over general provisions, with relation to the same subjectmatter. And it is a rule of statutory construction that a general statute, without negative words, does not repeal the particular provisions of a former statute on a special subject to which the general language of the later act, if it stood alone, might be deemed to apply, unless the two statutes are irreconcilably inconsistent. Walter v. State, 105 Ind. 589, 592, 5 N. E. 735; Kingan & Co. v. Ossam, 190 Ind. 554, 557, 131 N. E. 81; Monical v. Heise, 49 Ind. App. 302, 305, 94 N. E. 232. Applying these rules of construction, we reach the conclusion that the act of 1913 was not repealed by the act of 1915, and that section 6196, Burns' 1926, by which it was amended in 1919 (chapter 68, supra) is valid and in force. Therefore, the court erred in its first and second conclusions of law. And since that statute expressly provides that, in a proceeding thereunder to increase the size or number of the tile in a public drain, or to change its course or extend its length, because it is not sufficient, as originally constructed and as existing, properly to drain the lands intended, the action cannot be defeated by a two-thirds remonstrance. the court also erred in its third and last conclusion of law. [7] By its special finding, the court found that the Fachs ditch and its branches were established and constructed in 1901, in a proceeding before the board of commissioners, under the statutes then in force, and had since remained unchanged. That the drain and its branches were constructed along nat Also Since the statute does not permit an action of this kind to be defeated by a two-thirds remonstrance, these facts were sufficient to entitle the petitioners to the appointment of viewers, unless the fact that, long before Straus Bros. Company (one of the two petitioners) had acquired title to its farm, the then owner "constructed on Straus Bros. Company's tract of land" a lateral branch tile "which crosses the watershed," should be deemed cause for refusing to grant any relief. But that fact could not be material, except as evidence that the apparent insufficiency of the existing drain "to perform the drainage for which it was designed and intended" is not due to failure, in the first instance, to make it sufficient, because of inadequacy of the tile, either in the matter of their number or size or the depth at which or manner in which they were laid, but only to the drain being overloaded with water that would not naturally flow to it. And since the court found that the drain not only does not now, but never did, drain the ponds on lands assessed as benefited, through which it runs near its source, the right of petitioners to have the drain made sufficient cannot be defeated by the mere finding of a single fact constituting one item of evidence which, if supported by other evidence of a sufficient number of additional facts that the court failed to find existed, might have tended to prove that the only reason for the drain being insufficient to perform the drainage, for which it was designed and intended, is because of water carried to it from outside the watershed, and thus might have tended to establish the untimate fact that the drain was not constructed in an insufficient manner. The court having failed to find the ultimate fact that the drain, as constructed, was sufficient, but having found the contrary, its finding of insufficient construction cannot be overcome by the mere finding of a single item of evidence out of many that would be necessary to prove that the alleged insufficiency was caused by acts done after it was built. No good purpose would be served by passing on the other questions discussed in the briefs. The judgment is reversed, with directions to restate the conclusions of law, and for further proceedings not inconsistent with this opinion. KIMMEL v. STATE. (No. 24643.) (Supreme Court of Indiana. Nov. 18, 1926.) 1. Automobiles 351-Count for manslaughter, alleging injury by unlawfully driving automobile, in absence of allegations of speed, time, and place, held insufficient. Count in affidavit for involuntary manslaughter that defendant struck victim while unlawfully driving automobile at street intersection, failing to keep to right of intersection of centers of highways when turning to right, held insufficient, in absence of allegations of speed, place where victim was struck, time of accident, or other attendant facts. 2. Automobiles 351-Count for manslaughter, alleging injury by unlawfully driving automobile in negligent and reckless manner at street intersection, held insufficient. Count in affidavit for involuntary manslaughter that defendant struck victim while unlawfully driving automobile at street interwith wanton and reckless disregard of safety section in negligent and careless manner and of other persons held insufficient, in absence of allegations of speed, number of people in highway, condition of highways, and circumstances preceding or attending collision. 3. Indictment and Information 71-Facts (154 N.E.) manslaughter. A motion to quash each count for the alleged reasons that neither states facts sufficient to constitute a public offense and that neither states the offense charged with sufficient certainty was overruled, and defendant excepted. The jury returned a verdict finding him guilty as charged in the first count. Defendant's motion for a new trial for the alleged reasons that the trial court erred in the exclusion of certain evidence and in giving each of certain instructions, and that the verdict is not sustained by sufficient evidence and is contrary to law, was overruled, and defendant excepted. Overruling the motion to quash each count of the affidavit and overruling the motion for a new trial are assigned as errors. [1, 2] Besides the formal parts, the first count of the affidavit alleged that: * * At, etc., on or about the 23d day of October, 1922, defendant "did then and there unalwfully drive and operate a certain motor vehicle, to wit, an automobile, in and upon the intersection of Crescent avenue and State street, public highways in the city of Ft. Wayne, and did then and there unlawfully fail and neglect to drive and keep to the right of the intersection of the centers of said highways when turning to the right, and did then and there unlawfully, feloniously, involuntarily, and without malice kill Marie E. Wright by then and there and thereby, while so operating and driving the said motor vehicle, as aforesaid, running into and against and striking the said Marie E. Wright with his said motor vehicle, thereby feloniously and involuntarily inflicting a mortal wound in and upon the head of the said Marie E. Wright, of which said mortal wound the said Marie E. Wright then and there died, contrary," etc. The second count alleged that: one At said time and place defendant "did then and there unlawfully drive and operate a certain motor vehicle, to wit, an automobile, in and upon the intersection of Crescent avenue and State street, public highways in the city of Ft. Wayne, in a negligent and careless manner, and with wanton and reckless disregard of the rights and safety of other persons using said highways; did then and there and thereby and while so driving and operating his said motor vehicle, as aforesaid, unlawfully, feloniously, involuntarily, and without malice kill one Marie E. Wright by then and there running into and against the said Marie E. Wright with his said motor vehicle, thereby feloniously and involuntarily inflicting a mortal wound," etc. [3, 4] The Constitution of Indiana requires that the facts constituting the alleged offense shall be charged in direct and unmistakable terms, with clearness and all necessary certainty, so as to apprise the accused of the crime with which he stands charged. Section 13, art. 1, Const. Ind; section 65, Burns' 1926; Hinshaw v. State, 188 Ind. 147, 153, 154, 122 N. E. 418; Bowen v. State, 189 154 N.E.-2 Ind. 644, 128 N. E. 926; Gavalis v. State, 192 Ind. 42, 45, 135 N. E. 147. "To constitute the crime of manslaughter, there must be such legal relation between the commission of the unlawful act and the homicide that it logically follows that the homicide occurred as a concomitant part of the perpetration of, or in furtherance of an attempt to comTherefore it follows mit, the unlawful act. that death must be the natural result and the probable consequence of the commission of the unlawful act upon which the homicide is based." Votre v. State, 192 Ind. 684, 686, 138 N. E. 257, and authorities cited. The statutory declaration (section 2416, Burns' 1926 [section 351, c. 169, Acts 1905, p. 584]) of what shall constitute the crime of manslaughter is adopted bodily from the common-law definition. 4 Blackstone, Comm. 191; Dunville v. State, 188 Ind. 373, 375, 123 N. E. 689. [5] And under the rules of the common law it is only negligence in doing such acts as will probably endanger life or limb which constitute that "gross and culpable negligence" that amounts to an "unlawful act" within the definition, even though not punishable as a crime. Many judgments convicting persons of involuntary manslaughter where death was caused by negligence have been upheld. But, so far as we are informed, in all jurisdictions that adhere to the common-law definition of manslaughter, the affirmance of such judgments invariably has been on the ground that the injury and death were shown to have resulted from negligence in doing something obviously dangerous to others which the defendant had attempted to do in wanton and reckless disregard of their safety. In holding that an engineer who negligently ran his locomotive engine into a passenger car standing upon the railroad track and thereby destroyed the car and killed a passenger was liable to prosecution for manslaughter, this court said: In holding that mere proof of negligence on the part of the defendant in driving his motorcycle upon a city street at a rate of speed forbidden by statute, and in looking aside at some men who attracted his attention, did not show him to be guilty of manslaughter in striking with his motorcycle and killing a little child who ran into the street and stopped immediately in front of it where he was unable to avoid her, this court said: "One may be guilty of involuntary manslaughter if he conducts himself, in a given set of circumstances, with such willful disregard for over "Being late for the train, Jackson was driving at a furious rate, at full gallop, and ran a child going to school, and killed it. If they (the jury) were of the opinion that the prisoners were driving at a dangerous pace in a culpably negligent manner, then they are guilty." the rights of others as to show a wanton reck. And after having set out the evidence, and stated that the contention of counsel for the state was that if appellant was shown to have been violating the speed law, and to have been looking back, or looking to the side at some men who attracted his attention on the east side of the street, for which reason he did not see the child, he was therefore guilty of manslaughter, it continued: In Queen v. Salmon, 6 Q. B. D. (Eng.) 79, 29 Wk, Rep. 246, in upholding the conviction for manslaughter of three men who unintentionally shot and killed a boy in his father's garden while firing in that direction at a mark hung in a tree about 1,000 feet from it, Lord Coleridge, C. J., said: "The conviction must be affirmed. If a person will, without taking proper precaution, do an act that is within itself dangerous, even though not an unlawful act in itself, and if in the course of it he kills another person, he does, a criminal act which in law constitutes manslaughter." "It is not a question of contributory negli"The law is regardful of human life and pergence, but it is one of proximate cause. So sonal safety, and if one is grossly and wantonthe question is, did appellant conduct himself ly reckless in exposing others to danger, it at the time and place in such a manner as to holds him to have intended the natural conseshow a willful and wanton disregard for the quences of his act, and treats him as guilty of rights of others, from which the law infers an a willful and intentional wrong. It is no defense intent to cause death, and did his conduct cause to a charge of manslaughter for the defendant the death? It will be conceded that, if appel- to show that, while grossly reckless, he did not lant were driving his motorcycle down the actually intend to cause the death of his street, and the facts showed that he saw, or had victim. In these cases of personal injury reason to know that little children were upon there is a constructive intention as to the the street who were of such tender age as not consequences, which, entering into the willful, to know the dangers or heed warning signals, intentional act, the law imputes to the offender, it would be his duty so to conduct himself as and in this way a charge which otherwise would not to injure them, and in the event that he be mere negligence, becomes by reason of a willfully and wantonly disregarded that duty reckless disregard of probable consequences a and his conduct resulted in the death of one of willful wrong. That this constructive intenthem, he would be guilty of involuntary man- tion to do an injury in such cases will be imslaughter. Circumstances could well be con- puted in the absence of an actual intent to ceived in which he would be guilty of involun-harm a particular person, is recognized as an tary manslaughter if he drove the motor ve- elementary principle in criminal law." Aiken v. hicle even at one mile an hour in a street Holyoke St. R. Co., 184 Mass. 269, 68 N. E. crowded with little children-or even crowded 238. with adults." But the court held that mere evidence of negligence on the part of defendant was not sufficient to sustain the conviction, in the absence of anything tending to show that the accident would not have happened if appellant had been proceeding in a careful manner. Dunville v. State, supra. In Reg. v. Longbottom, 3 Cox (Eng.) C. C. 439, 1 Bennet & Heard Lead. Cas. 66, the court said: "If any one should drive so rapidly along a great thoroughfare leading to a large town, as to be unable to avoid running over any pedestrian who may happen to be in the middle of the road, it is that degree of negligence in the conduct of a horse and gig which amounts to an illegal act in the eye of the law; and if death ensues from the injuries then inflicted, the parties driving are guilty of manslaughter, even though considerable blame may be attributed to the deceased." [6, 7] Where an act that was itself forbidden by positive law has been the proximate cause of an injury which unintentionally caused the death of a person, the case comes squarely within the definition of involuntary manslaughter. There the involuntary killing has been done "in the commission of some unlawful act." Section 2416, Burns' 1926, section 351, c. 169, Acts 1905, p. 584; State v. Johnson, 102 Ind. 247, 249, 250, 1 N. E. 377; Eaton v. State, 162 Ind. 554, 555, 70 N. E. 814. But to be sufficient an indictment or affidavit for involuntary manslaughter in the commission of an act made unlawful by statute must state facts from which it will affirmatively appear that the act done was a violation of the law, and that such unlawful act was a proximate cause of the death of a human being which resulted therefrom. Willey v. State, 46 Ind. 363, 367; Eaton v. State, supra, pp. 556, 557. In holding that a person could not be prov In Reg. v. Kew & Jackson, 12 Cox (Eng.) en guilty of manslaughter by evidence that |