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E. 200; Commonwealth v. Sylvester, 13 Allen (Mass.) 247. A single quotation from the case of the United States v. Freeman, supra, will illustrate the force of the rule just stated, which is supported by the authorities cited. Mr. Justice Wayne, in delivering the opinion of the court, said: "The correct rule of interpretation is that if divers statutes relate to the same thing, they ought to be taken into consideration in construing any of them, and it is an established rule of law that all acts in pari materia are to be taken together as if they were one law. Doug. 30; 2 T. R. 387, 586; 4 Man. & Sel. 210. If a thing contained in a subsequent statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute (Ld. Raym. 1028); and if it can be gathered from a subsequent statute in pari materia what meaning the Legislature attached to a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the same statute." Statutes of the United States granting pensions to disabled soldiers and seamen, and in case of death, to widows, etc., have, so far as we are advised, used the words, "in the line of duty." This expression has been under consideration many times in passing upon claims for pensions.

In 1855, Caleb Cushing, Attorney General of the United States, gave to the Department of the Interior an opinion in which he put an interpretation upon such expression, in which he said: 66 * ** The statute employs a phrase which is definite, though comprehensive, 'the line of duty.' He who contracts disease, or dies in consequence of the ordinary performance of his military duty, or in the performance of any special act of military duty, whether at the moment of performance he were on duty or off duty, in active service or on furlough, or habits virtuous or habits vicious, gallantly fighting his country's enemy, or expiating an offense in the guardhouse or prison bay-he, I say, who, in these or any other circumstances, contracts it 'in the line of duty.' On the other hand, neither the bad man, who dies of his incorrigible vices, nor the good man, who, at the full maturity of blameless life, dies in the course of nature of any of the maladies incident to old age, can be said to die of 'disease contracted while in the line of duty.' In fine, the phrase, 'line of duty,' is an apt one to denote that an act of duty performed must have relation of causation, mediate or immediate, to the wound, the casualty, the injury, or the disease producing disability or death." 7 Op. Atty. Gen. 149; 2 Dec. Dept. Int. Pensions, 403. In Rhodes v. United States, 79 Fed. 740, 25 C. C. A. 186, which was an action to recover from Rhodes what was claimed had been paid to him by reason of his fraudulent representations, the court approved the following instruction: "Second. If, under the fore

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going general directions, you find either that the defendant never had the disease in question before he enlisted, or that he had been afflicted therewith, but had entirely recovered therefrom, before his enlistment, then, inasmuch as there appears to be no doubt but what he suffered from the disease while in the service, you must next inquire whether he contracted it in the line of duty. means that he must have contracted the disease as a result of his service, or as a result or by reason of the fact that he was in the service. The service must have been the cause of the disease, not merely coincident in time. An attack of epilepsy, for instance, while a soldier in the army, not resulting from any connection with the army, or any risk, hazard, or danger thereof, but as a result of an hereditary predisposition, would not entitle a soldier to a pension, on the ground that he contracted that disease while in the service, because such disease would not have been contracted in the line of duty." The court in that case adopted the interpretation of the words "in line of duty" put upon them by Attorney General Cushing, and further said: "The fact that after this construction Congress has retained this expression for more than 40 years, although it has repeatedly revised and amended the pension laws, amounts to a demonstration that Mr. Cushing and the court below properly interpreted its meaning." The claim of Gillespie for pension further illustrates the interpretation of the words "in line of duty." 2 Dec. Dept. Int. Pensions, 16. The claim was based upon an injury claimant received in an altercation with a member of his company, in which the latter struck Gillespie upon the head with a board and injured his skull. The claim was disallowed, upon the ground that the injury was not received while he was in "the line of duty," and in disposing of the case it was said: "But the fact that claimant did not sustain a culpable relation to the cause of his disability does not, by reason of the same, affect his title to pension. The question involved in the claim is not whether claimant was to blame for the conduct of his assailant, but whether the blow struck by the latter was a necessary, or even a reasonable, incident of line of duty in the service."

In the case of Harding's application for a pension (2 Dec. Dept. Int. Pensions, . 232), where his injury was a partial paralysis of the brain caused by a saber cut or blow while on a boat, and while asleep in his bunk, and was mistaken by a comrade for another, the claim was rejected upon the ground that the injury was not received while in "service and in the line of duty." In passing upon the claim it was said: "The department holds in this and all similar cases that the wound, injury, or disease must be the natural, probable, or proximate result, either mediate or immediate, of soldier's military

duty, and that the phrase 'line of duty' denotes that an act of duty performed in order to entitle claimant to a pension must have relation of causation, mediate or immediate, to the wounds or injury received or the disease contracted, and which produced the said disability or death. It cannot be reasonably claimed that the assault upon the claimant by his comrade, the result of mistaken identity, was the logical incident or probable effect of duty performed in the service. The question is not whether the soldier was in line of duty at the time he received his injury, in the sense that he was not disobeying any military law, rule, or regulation, or guilty of any culpable negligence, but rather what is the quality or condition of the act which produced the injury of which complaint is made? Claimant was not wounded or disabled because he was a soldier." In the claim of Ammerman for pension (1 Dec. Dept. Int. Pensions, 5), the claim was rejected on the ground that the cause of the disability or of death giving title to pension must in some manner pertain to, and have a natural and logical connection with, the military service, and to line of duty in said service. Upon the authorities and principle, we are forced to the conclusion that the facts pleaded do not show that the deceased came to his death while in the line of his duty, nor in the discharge of any duty, as a police

man.

This disposes of the case except as to one proposition. It is urged by counsel for appellant that the death of the deceased in the manner detailed in the complaint was death by accident, upon the theory that death by suicide by an insane man is death by accident, "just as much as if the deceased had fallen from the top of a house." This proposition is affirmed by some authors and decisions. Bacon on Benefit Societies & Life Insurance (3d Ed.) §§ 496, 396; Accident Ins. Co. v. Crandall, 120 U. S. 527, 7 Sup. Ct. 685, 30 L. Ed. 740, and authorities there cited. This rule, however, is not the test by which the question before us is to be determined. There is no averment in the complaint that the insanity of the deceased was caused by reason of his being a policeman, nor that it resulted from the discharge of any duty as such. An insane man is ir responsible for his actions, and it is upon this basis that suicide by an insane person is held to be an accident, as indicated by the authorities just cited. The question of some difficulty here is that we are dealing with a special statute which gives certain rights upon specific conditions. One of the conditions that gives such right to the widow and orphans of a policeman is that the latter

should come to his death while in the line of his duty, and, as we have seen, "and as a result of the performance of his duty," and that there be some connection between the death and the "line of duty" or the "performance of duty." Going to the complaint we find an entire absence of any connection between the act which produced death and the performance of any duty enjoined upon the deceased. In other words, the complaint does not charge that the insanity was the result of the performance of any duty. This, it seems to us, is essential. In claims for pensions under the laws of the United States, based upon insanity, or upon death from suicide while in a state of insanity, it must be shown that the insanity was the result of, or incidental to, acts of duty, before it can be said that the soldier died "while in line of duty." 7 Op. Atty. Gen. 149; 2 Dec. Dept. Int. Pensions, 403 (407); In re Claim Stack, 2 Dec. Dept. Int. Pensions, 153; In re Claim Gallagher, 2 Dec. Dept. Int. Pensions, 332. Attorney General Cushing, in his opinion, supra, said: "Thus, in one of the cases referred to in your letter, and upon which you have already ruled, a case of suicide, it was held, and properly, not only the suicide is not of itself a pensionable cause of death, but also that, if the suicide is alleged to have been produced by insanity, and thus insanity be put forward as the causa causans, then it must be shown that the insanity was the result of, or incidental to, acts of duty." A case directly in point is that of Gallagher, 2 Dec. Dept. Int. Pensions, 332, where it appeared there was an entire failure of proof connecting the insanity or suicidal mania of the soldier with his army service, and in passing upon the claim it was said: "This is a missing link in the chain of evidence which is absolutely essential to make out a proper case for the allowance of pension, and, unless supplied, it is necessarily fatal to the claim. It seems to be reasonably certain, from the testimony on file, that the soldier's death resulted from poisoning by arsenic, administered by himself with suicidal intent while the victim of dementia or mania, and when, therefore, he was irresponsible for his actions, and also that he had suffered more or less at intervals from attacks of said dementia or mania for some years subsequent to his discharge from the service, and prior to his death." These authorities settle the question against appellant.

We are clearly of the opinion that, under the facts pleaded, appellant has not brought herself within the statute, and that she has no right of recovery.

Judgment affirmed.

(169 Ind. 291)

CLEMANS et al. v. HATCH et al. (No. 20,740.)1

(Supreme Court of Indiana. Nov. 23, 1906.) STATUTES RETROACTIVE OPERATION-ESTABLISHMENT OF DRAINS.

Acts 1905, p. 480, c. 157, § 14, relating to the establishment of drains, repealing all laws theretofore enacted relating to drainage, but providing that such repeal shall not affect pending proceedings in which a ditch has been ordered established, or in which there is no attempt to and which will not affect any body of water that has to exceed 10 acres of surface at highwater mark, saves pending proceedings which will not affect any body of water that has to exceed 10 acres of surface at high-water mark, though the ditch has not yet been ordered.

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

Petition by David Clemans and others against John Hatch and others for the establishment of a drain. From a judgment dismissing the proceedings, petitioners appeal. Reversed and remanded.

Cox & Andrews and Essick & Montgomery, for appellants. Lawrence & Rhodes, Frank D. Butler, Reasoner & Ward, and R. J. Loveland, for appellees.

GILLETT, J. This proceeding was instituted by appellants before the board of commissioners of Miami county to establish a drain in the counties of Fulton and Miami. Prior to the making of an order establishing the ditch, the act of March 6, 1905 (Acts 1905, p. 456, c. 157, § 5622 et seq., Burns' Ann. St. Supp. 1905), became a law. court below dismissed the proceedings, and rendered judgment for costs against appellants. The question which this appeal presents is whether the act aforesaid deprived the board of jurisdiction.

The

Appellants' counsel contend that section 14 of said act saved pending proceedings, and also such proceedings were saved by virtue of section 2, Rev. St. 1852, p. 430 (section 243, Burns' Ann. St. 1901). Counsel for appellees contend that, as the drain had not been ordered established, the board lost jurisdiction to proceed, and they base their claim on what they conceive to be the proper construction of said section 14. They also deny that section 2 of said act of 1852 has any application to suits instituted under statutes passed subsequent to said enactment, and in support of this view they call attention to the title of said law. We are not called on to consider the validity of the latter contention, as we have reached the conclusion that the proceedings in question were saved by section 14 of the act of 1905. Said section in part provides: "All laws and parts of laws heretofore enacted in relation to drainage are hereby repealed, but such repeal shall not affect any pending proceedings in which a

78 N.E.-671⁄2

ditch has been ordered established, or in which there is no attempt to and which will not lower or affect any lake or body of water that has to exceed ten acres of surface at high water mark, and such proceedings and all remedies in relation thereto shall be concluded and be effective in all respects as if this act had not been passed." This section seems quite obscure except upon one theory, and that theory may be indicated by reading that part of the language which follows the general provision for a repeal in the following manner: "Such repeal shall not affect any pending proceedings, in which [pending proceedings] a ditch has been ordered established, or in which [pending proceedings] there is no attempt to and which will not lower or affect any lake or body of water that has to exceed ten acres of surface at high water mark, and such proceedings [that is, pending proceedings] and all remedies in relation thereto shall be concluded and be effective in all respects as if this act had not been passed." It will be observed that the first limitation which the section places upon the general provision for repeal is that it shall not "affect" two classes of pending proceedings, namely, those in which a drain has been ordered established and those in which there is no attempt to lower or affect a lake. This provision, so far as it related to drains which had been ordered established, was doubtless intended as a disclaimer of all purpose to attempt to affect any proceeding which had been crystallized into the final judgment of a court; something that the Legislature was not authorized to disturb, but when the General Assembly came to deal with other pending proceedings-that is, proceedings anterior to such a final orderprovision was made, as we construe the stat| ute, that such proceedings not only should not be affected by the repeal provided that there was no attempt to drain a lake or body. of water, but that "such proceedings" (that is, pending proceedings), and all remedies in relation thereto, should be concluded and be effective in all respects as if the act had not been passed. The question as to the proper construction of section 14 was before us in Taylor v. Strayer (at this term), 78 N. E. 236, and it was there said: "It was also the expressed intent of the Legislature to save all pending proceedings which had not progressed to final judgment, provided the proposed ditches were not designed to and would not affect lakes of the surface area named." This construction of the section still commends itself to our judgment, and we therefore hold that the court below erred in the action taken by it.

Judgment reversed, with an order for further proceedings not out of accord with this opinion.

1 Rehearing denied.

(39 Ind. App. 21) ZIEGLER v. ZIEGLER et al. (No. 6,283.)1 (Appellate Court of Indiana. Division No. 2. Oct. 30, 1906.)

1. INFANTS-SUITS BY NEXT FRIEND.

Under Burns' Ann. St. 1901, § 2684, authorizing the court to appoint a guardian ad litem to defend the interest of any minor impleaded in any suit, and to permit any person as next friend to prosecute any suit in a minor's behalf, and section 259, providing that an infant defendant shall appear and defend by guardian appointed by the court, an infant defendant can prosecute an action by cross-complaint only by a next friend.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Infants, §§ 192, 195.]

2. APPEAL-PARTIES-WAIVER OF OBJECTION.

Under Burns' Ann. St. 1901, § 342, Burns' Ann. St. 1894, § 346, Rev. St. 1881, § 343, and Horner's Ann. St. 1897, § 343, providing for a demurrer when the plaintiff has not legal capacity to sue, and if the same does not appear on the complaint or cross-complaint, then by plea in abatement, where the right of a guardian ad litem of an infant defendant to file a crosscomplaint in the trial court was not objected to, the right to raise such question on appeal was waived.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1121-1132.]

Appeal from Superior Court, Vanderburgh County; Alexander Gilchrist, Judge.

Action for partition by Jacob Ziegler, Sr., and others against Jacob Ziegler, Jr., by James T. Walker, guardian ad litem. From a judgment for plaintiff, defendant appeals. Motion to dismiss. Overruled.

Iglehart & Taylor, for appellant. Peter Maier, for appellee.

COMSTOCK, P. J. In this case Jacob Ziegler, Jr., an infant, was, upon motion, made a party defendant to a partition proceeding. James T. Walker was appointed his guardian ad litem. Said guardian filed a cross-complaint in three paragraphs. The case was tried upon the complaint and crosscomplaint, and a finding made and a judgment rendered against appellant. By his guardian, said Jacob moved for a new trial, and, upon the overruling of said motion, appealed to this court. Appellee moves to dismiss the appeal, for the reason that said cross-complaint ought to have been filed and the action prosecuted by next friend.

As an incident of their jurisdiction, courts have the inherent power to appoint guardians ad litem to defend the interests of minor defendants in actions pending before them. Said power is also conferred by section 2684, Burns' Ann. St. 1901, in the following terms: "All courts shall have power to appoint a guardian ad litem to defend the in

1 See 84 N. E. 19.

terests of any minor impleaded in any suit and to permit any person as next friend to prosecute any suit in any minor's behalf." It is further provided by section 259, Burns' Ann. St. 1901, that "an infant defendant shall appear and defend by guardian appointed by the court, or chosen by the said infant with the consent of the court." "The extent of the authority of a guardian ad litem, must be found in the statute authorizing his appointment and in the order of the court made in pursuance thereof. The statute above quoted imposes upon such guardian the duty to defend and not to prosecute suits on behalf of a minor." Gibbs v. Potter (Ind. Sup.) 77 N. E. 944. In Shannon v. Hay, 106 Ind., at page 589, 7 N. E. at page 376, it is said: "Infants may defend by a guardian ad litem, but they cannot over objection thus prosecute an action either upon a complaint or a crosscomplaint. They can prosecute only by next friend as provided by statute." In the case from which we have first quoted a demurrer was filed and sustained to the cross-complaint. In the second case a motion to strike out the cross-complaint was sustained. In both cases the lower court was given an opportunity to pass upon the legal capacity of the guardian ad litem to sue. In the case at bar, no objection was made to the action of the guardian ad litem, either by demurrer or by motion. In DePriest v. State ex rel. Morris, 68 Ind. 569, it is held that an objection to the trial and judgment upon the ground that no guardian ad litem had been appointed for an infant defendant in a bastardy suit, could not be made for the first time in the Supreme Court. Rawles v. State ex rel. Ford, 56 Ind. 433; Evans v. State ex rel. Rinert, 58 Ind. 587, are to the same effect. The right of a minor defendant to file a cross-complaint by guardian ad litem, can be raised under subdivision 2, section 342, Burns' Ann. St. 1901, which provides for a demurrer when the plaintiff has not legal capacity to sue, and if the same does not appear on the face of the complaint or cross-complaint, then by plea in abatement. Section 346, Burns' Ann. St. 1894; section 343. Rev. St. 1881; section 343, Horner's Ann. St. 1897; Clough et al v. Thomas et al., 53 Ind. 24; Shirts v. Irons, 54 Ind. 13; Bray v. Black, 57 Ind. 417; Groves v. Ruby, 24 Ind. 418; Strong v. Downing, 34 Ind. 300. The statute cited and decisions thereunder upon the same question as the one before us are decisive. By failing to question the right of the guardian ad litem to file the crosscomplaint in the court below, the right to raise such question upon appeal was waived. Motion to dismiss overruled.

(39 Ind. A. 40)

MILLER et al. v. GIVENS. (No. 6125.) (Appellate Court of Indiana. Division No. 1. Oct. 31, 1906.)

INTOXICATING LIQUORS-PROCEEDINGS TO PROCURE LICENSE-APPEAL-PARTIES ENTITLED. On removal to the circuit court of an application for a license to sell liquor, an answer was filed by an individual setting up a remonstrance by a majority of the legal voters to the granting of a license. The individual filing the petition was apparently considered as the only adversary party, and, on the sustaining of a demurrer to the answer, he assigned error. Held, that permission could not be given him to assign error on behalf of others signing the remonstrance.

Appeal from Circuit Court, Jay County; Jno. F. La Follette, Judge.

Application by James Givens for a license to sell liquor, Freeman Miller objecting and filing an answer. From a judgment ordering a license, Miller appeals and moves for permission to prosecute appeal on behalf of others signing a remonstrance. Petition overruled.

S. W. Haynes and J. F. Lewis, for appellants.

ROBINSON, C. J. Appellee applied for a license to sell liquor in Dunkirk. In the commissioners' court Freeman Miller appeared and moved to dismiss the application on the ground that the application and notice failed to describe property situated on a public highway or street, and failed to describe property in Dunkirk. This motion was sustained, and appellee appealed to the Jay circuit court. In that court Miller filed an answer alleging facts which showed that, on June 2, 1905, three days before the regular June session of the commissioners, a remonstrance in writing was filed, signed by himself and others, being a majority of the legal voters of the township, against the granting of a liquor license to all applicants, and that, on a hearing, the commissioners found that a majority of the legal voters of the township had signed the remonstrance and entered an order on the finding. Appellee's demurrer to this answer was sustained. The cause was submitted to the court, and, upon a hearing, license was ordered to be issued to appellee.

Freeman Miller has filed in this court a transcript of the proceedings and an assignment of errors, and with the transcript, and attached thereto his petition asking that an order be granted permitting him to file an assignment of errors without the use of the names of all the original remonstrators, and that the cause be docketed and heard in his name in his and their behalf. The answer in the circuit court was filed by Freeman Miller alone. He alone seems to have been considered the only adversary party. He has assigned error in his own name. Whether he has perfected the appeal is a ques

tion not presented. In so far as his petition. asks to assign error on behalf of those, other than himself, who signed the remonstrance, but who did not appear and answer, it is overruled.

(39 Ind. A. 9)

WILLIAMS v. DOUGHERTY. (No. 5,847.) (Appellate Court of Indiana. Division No. 2. Oct. 30, 1906.)

1. ADMINISTRATORS-APPOINTMENT-COURTS

JURISDICTION.

Under Burns' Ann. St. 1901, § 2381, providing that letters of administration shall be granted in the county where intestate was an inhabitant at his death, where the court of a county other than that of which intestate was an inhabitant at death appointed an administrator of his estate, such appointment was properly annulled on the application of any person interested or on suggestion of an amicus curiæ.

[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 95, 203; vol. 2, Cent. Dig. Amicus Curiæ, § 3.] 2. JUDGMENTS-COLLATERAL ATTACK-ADMINISTRATORS-APPOINTMENT.

Where a court of a county other than that in which intestate was an inhabitant at the time of his death, erroneously appointed an administrator of his estate, such appointment was neither void nor subject to collateral attack, and, while voidable on a direct attack, furnished complete protection to the administrator so long as it remained unrevoked.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 178-180.]

Appeal from Circuit Court, Johnson County; W. J. Buckingham, Judge.

Petition by Mary J. Dougherty to vacate the appointment of Henry Williams, as administrator of the estate of Adam S. Dougherty, deceased. From a judgment granting the relief prayed, the administrator appeals. Affirmed.

See 77 N. E. 305.

Wm. Featherngill, for appellant. C. B. Clarke, W. C. Clarke and Deupree & Slack, for appellee.

ROBY, J. Appellant was, on the 30th day of September, 1904, appointed, by the Johnson circuit court, administrator of the estate of Adam S. Dougherty, deceased. The administrator duly qualified, and entered upon the discharge of his duty. On February 28, 1905, appellee being the widow of said decedent, petitioned said court to set aside its order theretofore made in said matter, and to annul said letters, for the alleged reason that decedent was not, at his death, an inhabitant of Johnson county. This issue was submitted for trial, and the fact found to be that, at his death, and for several months prior thereto, said decedent was a resident of Marion county. The court thereupon rendered judgment that said letters of administration be annulled, and said appointment set aside, and that appellant file a final report of his proceedings therein, within 30 days.

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