« ForrigeFortsett »
The errors assigned call in question the The state insists that upon said fourth and first and third conclusions of law. It appears fifth findings of fact, "the conclusion of law from the record that in 1861, George Donald arises that George Donaldson died a resident son, then 50 years of age, a bachelor who of Scotland, for the reasons: (1) A man is never afterwards married, a native of Scot. presumed to be domiciled where he is found, land and until his death on September 17, unless he is shown to be there for some tem1898, a subject of Queen Victoria, emigrated porary purposes. (2) A stronger presumpto the United States and became at once and tion exists that a man is domiciled where he remained, until his return to Scotland in the
(3) On the return of an alien to his year 1896, a bona fide resident of the United domicile of origin his original domicile inStates. The tracts of land in controversy stantly reverts. (4) In doubtful cases the were conveyed to him by deeds of warranty original domicile is considered the true one." in the years 1865 and 1867. He became and Citing Dicey on Conflict of Laws (Am. Ed.) remained a bona fide resident of Lawrence pp. 132, 133; The Bernon, 1 C. Rob. Adm. 102, county, Ind., from September, 1865, until 101; Kennedy v. Ryall, 67 N. Y. 379, 386; Ryin 1883, when he removed to the state of all v. Kennedy, 4 N. Y. Super. Ct. 347, 361; Alabama, of which he was a bona fide resi March V. Hutchinson, 2 Bosanquit & Puldent until he returned to Scotland in the ler, 23, note; Rogers v. The Amado, Newb. year 1896, where he remained the rest of his 400, Fed. Cas. No. 12,005; Butler v. Farnslife. He did not, at any time, declare his worth, 4 Wash. C. C. 101, Fed. Cas. No. intention to become a citizen of the United 2,240; Elbers v. United Insurance Co., 16 States conformable to the acts of Congress. Johns. (N. Y.) 128, 133; Bradstreet V. He died intestate, leaving as his next of kin Bradstreet, 18 D. C. (7 Mackey) 229; Clough appellants, who are descendants of his broth v. Kyne, 40 Ill. App. 234, 236; Ennis v. Smith, ers and sisters, all of whom were, at the 14 How. (U. S.) 400, 423, 14 L. Ed. 472; time of said George Donaldson's death, and Anderson v. Watt, 138 U. S. 694, 706, 11 Sup. ever since have been, residents of Scotland,
Ct. 449, 34 L. Ed. 1078; United States v. and subjects of the Queen of Great Britain Chong Sam (D. C.) 47 Fed. 878, 886; Greenand Ireland.
field v. Camden, 74 Me. 56, 64; Liscomb v. It was the thory of the state in the trial N. J. R. Co., 6 Lans. (N. Y.) 75, 77; Horne court, as shown by the record, that when v. Horne, 31 N. C. 99, 108; Kellar v. Baird, George Donaldson returned to Scotland in 5 Heisk. (Tenn.) 39, 46; Venable v. Paulding, 1896, he became a resident thereof, and con 19 Minn. 488, 495 (Gil. 422); Mowry v. Lathtinued to be such resident until his death in am, 17 R. I. 480, 481, 23 Atl. 13; Guier v. 1898. Appellants question the sufficiency of O’Daniel, 1 Bin. (Pa.) 349, 351, note, 1 Am. the court's finding to sustain this theory. Leading Cases (Hare & Wallace) 733, 734, The findings on this subject are as follows: 753; Haskins v. Matthews, 8 DeG. M. & G. “(4) The George Donaldson mentioned in 13, 26, 35 Eng. L. & Eq. 532, 540; Haldane v. the complaint, cross-complaint, and other Eckford, L. R. 8 Eq. 631, 641; Johnston v. pleadings in this case, was born in Scotland, Beattie, 10 Clark & F. 42, 138; Wharton on in the United Kingdom of Great Britain and Conflict of Laws (2d Ed.) § 55a; (3d Ed.) Ireland, in the year 1811, and died on the $ 5512, and cases cited; Atty. General v. Win17th day of September, 1898, at the Maidens, ans, 85 L. T. N. S. 508, 65 J. P. 819; Anderson Ayrshire, Scotland, in said kingdom. That v. Watt, 138 U. S. 694, 706, 11 Sup. Ct. 449, said George Donaldson was, during his en 34 L. Ed. 1078; Tracy v. Tracy, 62 N. J. Eq. tire life, a subject of the monarch of said 807, 48 Atl. 533; Hairston v. Hairston, 27 kingdom, and did not at any time declare his Miss. 704, 61 Am. Dec. 530; Hinuman's Appeal, intention to become or become a citizen of the 85 Pa. 466, 468; Anderson v. Laneville, 9 United States conformably to the acts of Con Moore P. C. 325, 334; President, etc., v. gress applicable to that subject. (5) Said | Drummond, 33 Beav. 449, 452, 33 L. J. (N. George Donaldson, late in the year 1860, or S.) Ch. 501, 503; King v. United States, 27 early in the year 1861, emigrated from Scot Ct. of Cl. 529, 533; Reed's Appeal, 71 Pa. 378; land to the United States of America, and at In re Bruce, 3 Tyr. 475, 486, 2 C. J. 436; King once became a bona fide resident of the Unit v. Foxwell, L. R. 3 Ch. Div. 518, 521; Capdeed States, and so continued to be until the vielle v. Capdevielle, 21 L. T. (N. S.) 660, year 1896, when he returned to Scotland, 18 W. R. 107; White v. Brown, 1 Wall. Jr. where, soon becoming ill, he remained until 217, 265, Fed. Cas. No. 17,538; Charles his death. In the month of September, 1865, Green's Son v. Salas (C. C.) 31 Fed. 106, 112; or earlier in that year, and before September U. S. v. Chong Sam (D. C.) 47 Fed. 878, 886 ; 19, 1865, said George Donaldson became a First National Bank v. Balcom, 35 Conn. 351, bona fide resident of Lawrence county, in the 357; In re Wrigley, 8 Wend. (N. Y.) 134, 140; state of Indiana, and so remained until some Sheldon v. Forsman, 17 Lanc. L. Rev. 85, 87, time in the year 1883, when he removed his 14 York Leg. Reg. 102; Marks v. Marks (C. residence to the state of Alabama, in the C.) 75 Fed. 321, 329; La Virginie, 5 C. Rob. United States of America, where he was a Adm. 98, 99; The Ann Green, 1 Gall. 274, 286, bona fide resident until he so returned to Fed. Cas. No. 414; Catlin v. Gladding, 4 Scotland, in the year 1896, whether with in Mason, 308, Fed. Cas. No. 2,520; Prentiss v. tent to return to the United States is not Barton, 1 Brock, 389, Fed. Cas. No. 11,384; known."
Hallet v. Bassett, 100 Mass. 167, 170; Lord v.
Calvin, 4 Drew. 366, 422; The Venus, 8 Judgment reversed, with Instructions to Cranch, 253, 280, 3 L. Ed. 553; In re Walker, grant a new trial, with leave to amend plead1 Low. 237, 238, Fed. Cas. No. 17,061; Burn ings if desired. ham v. Rangeley, 1 Woodb. & M. 7, Fed. Cas. No. 2,176; State v. Hallett, 8 Ala. 159, 161;
(166 Ind. 644) Miller's estate, 3 Rawle (Pa.) 312, 319, 24 Am. Dec. 345; Udny v. Udny, 2 Ac. App.
SCOTT et al. v. COLLIER. (No. 20,817.)1 1,677, 1,683; Munro v. Munro, 7 Cl. & F. 842,
(Supreme Court of Indiana. June 5, 1906.) 876; Colville v. Lander, Dictionary of De 1. BILLS AND NOTES-ACTION ON NOTE-COMcisions, p. 14,964; The Indian Chief, 3 C.
A complaint in an action on a note against Rob. Adm. 17; Goods of West, 6 Jur. (N. S.)
Nancy S., as principal, and Joseph S., as surety, 831; Price v. Price, 156 Pa, 617, 27 Atl. 291. and not showing that the parties were married,
The authorities cited do not sustain the was not insufficient as against an attack made contention of appellee that said presumptions
for the first time on appeal on the ground that
defendants were husband and wife, and that are presumptions of law, but hold that they
the pleading did not show that the contract was are presumptions of fact, or, as some of one into which a married woman had power them state, "prima facie" evidence thereof.
to enter. It is settled in this state that nothing can be
2. PLEADING-DEMURRER-GROUNDS FOR DE
MURRER TO REPLY. added to a special finding by presumption,
It was proper to overrule a demurrer to a inference, or intendment, and that where a reply on the ground that the reply did not state special finding is silent upon a material point facts sufficient to constitute a defense to the it is deemed to be found against the one who
answer; no such grounds for demurring to a
reply being recognized by the Civil Code. has the burden of proof. Cleveland, etc., Ry.
[Ed. Note.For cases in point, see vol. 39, Co. v. Moneyhun, 146 Ind. 147, 153, 44 N. E.
Cent. Dig. Pleading, $ 453.] 1106, 34 L. R. A. 141, and cases cited; Craig 3. TRIAL-TRIAL BY COURT-FINDINGS-CORv. Bennett, 146 Ind. 574, 575, 45 N. E. 792, RECTION. and cases cited; Crowder v. Riggs, 153 Ind. It was proper to deny a motion to modify 158, 162, 53 N. E. 1019; Bradway V. Groen
a special finding of facts by the court, and to
have other additional facts found, and to state endyke, 153 Ind. 508, 512, 55 N. E. 434; Citi other conclusions of law; there being no rule of zens' Bank v. Julian, 153 Ind. 655, 676, 55 N. practice or procedure authorizing such motion. E. 1007; Erwin v. Central, etc., Co., 148 Ind. [Ed. Note.For cases in point, see vol. 46, 365, 371, 46 N. E. 667, 47 N. E. 603; Hill v.
Cent. Dig. Trial, $8 951, 952.] Swihart, 148 Ind. 319, 323, 47 N. E. 705; Arch 4. NEW TRIAL-ASSIGNMENT OF ERRORS-SUFibald v. Long, 144 Ind. 451, 454, 455, 43 N. E.
An assignment that certain enumerated 439; Brunson v. Henry, 152 Ind. 310, 314, findings are not sustained by sufficient evidence 52 N. E. 407. There is no finding that said is not a proper assignment in a motion for a Donaldson was, at the time of his death, a
trial. resident of Scotland, and under the rule in
[Ed. Note.-For cases in point, see vol. 37, this state, as we have shown, we have no
Cent. Dig. New Trial, $$ 257, 261.]
5. HUSBAND AND WIFE-LIABILITY OF MARauthority to infer or presume as a fact from
RIED WOMAN. the facts found by the trial court that he Where a wife procured a conveyance to was, even though the trial court might or herself of the husband's land, which was incumshould have done so. There is much argu
bered by mortgages, and she borrowed money ment to the effect that without such finding,
to pay them off, and gave the lender a note
and mortgage signed by herself and her husband, under the law in force at the death of Don
she was liable on the note, as the transaction aldson, the conclusions of law should be sus represented thereby was for the benefit of her tained and the judgment affirmed, but we
estate. have not considered such argument and the
[Ed. Note.-For cases in point, see vol. 26,
Cent. Dig. Husband and Wife, 8 638.] questions presented thereby, as this would permit the abandonment of the theory upon Appeal from Circuit Court, Wabash Counwhich the cause was tried and determined, ty; A. H. Plummer, Judge. which cannot be done under the familiar rule Action by Emma B. Collier against Nancy that theory upon which the case was tried Scott and others. From a judgment of the must be adhered to on appeal.
Appellate Court (77 N. E. 666), affirming a By express provision of statute this court judgment in favor of plaintiff, defendants is authorized to order a new trial when the appeal. Affirmed. justice of the case requires it (section 672,
Kenner, Lucas & Kenner, for appellants. Burns' Ann. St. 1901 ; section 660, Rey. St.
B. M. Cobb and C. W. Watkins, for appellee. 1881; section 660, Horner's Ann. St. 1901), and this power has often been exercised. JORDAN, C. J. This is an appeal from the McCoy v. Kokomo, etc., Ry. Co., 158 Ind. 662, judgment of the First Division of the Appel567, 64 N. E. 92, and cases cited; Buchanan late Court, affirming a judgment of the V. Milligan, 108 Ind. 433, 434, 9 N. E. 385, Wabash circuit court. It appears that apand cases cited; Stewart v. Patrick, 5 Ind. pellee commenced this action against appelApp. 50, 58, 30 N. E. 814, and cases ci. 1. lants in the Huntington circuit court to reWe think such an order should be made in cover on a promissory note and for the fore. this case.
closure of a mortgage executed to secure 1 Rehearing denied.
the payment thereof. The case was venued that they are husband and wife, therefore to the Wabash circuit court. appellants filed the pleading, in order to state a cause of aca joint answer to the complaint. Nancy J. tion against Nancy J. Scott, the wife, must Scott also filed a separate answer, alleging by proper allegation or averment show that therein that at the time she executed the the contract in suit was one into which she, note and mortgage she was a married woman under the law, as a married woman, had the and had executed the same as a surety of power to enter. But counsel seemingly misher husband, her codefendant in the action; apprehend the fact that the complaint in that the note was executed by her to the this case does not upon its face, nor by plaintiff for borrowed money, which was used either of the exhibits filed therewith, disand applied in paying the separate debts of close that the relation of husband and wife her said husband; and that no part thereof existed between the appellants at the time was expended or used for her benefit, etc. of the execution of the note and mortgage Appellee replied by the general denial to the in suit. As to whether Nancy J. Scott was joint answer of appellants, and to the sepa at that time a married woman the complaint rate answer of Nancy J. Scott she replied is entirely silent. Consequently, under the affirmative matter in avoidance of said an circumstances, the point advanced as to its swer. To this reply appellants severally sufficiency is wholly without support. Whethdemurred, assigning as the only ground of er the pleading would be sufficient as to both demurrer that the reply did not state facts appellants if tested by a demurrer we need sufficient to constitute a defense to the de not, and do not, decide. That, under the facts fendants' answer. This demurrer was over therein alleged, it is sufficient as against an ruled, to which defendants, appellants here attack for the first time on appeal is settled in, excepted, and this is the ruling upon beyond controversy. Xenia, etc., Co. v. Macy, which the second assignment of error is pred 147 Ind. 568, 47 N. E. 147; Peoria, etc., Ry. icated. Upon the issues as joined between Co. v. Attica, etc., Ry. Co., 154 Ind. 218, 56 the parties there was a trial by the court and N. E. 210. a special finding of facts and conclusions of It will be noted that the cause assigned in law thereon in favor of appellee. Over ap the den urrer of appellants to the reply of pellants' motion for a new trial, assigning appellee to the separate answer of Nancy J. therein that the special finding is not sus Scott is that said reply does not state facts tained by sufficient evidence and is contrary sufficient to constitute a defense to the anto law, a judgment was rendered in favor
No such ground or cause for demur. of appellee, against both appellants, for ring to a reply is recognized by our Civil $6,744.16, principal, interest, and attorney's Code, and for that reason alone, if for no fees, and a foreclosure of the mortgage was other, the court did not err in overruling the decreed. From this judgment appellants ap demurrer. Therefore appellants' second aspealed to the Appellate Court, and separately signment of error must fail. Peden v. Mail, assigned therein as errors, first, that the com 118 Ind. 556, 20 N. E. 493; Krathwohl v. plaint does not state facts sufficient to con Dawson, guardian, 140 Ind. 1, 6, 38 N. E. 467, stitute a cause of action; second, that the 39 N. E. 496. court erred in overruling the separate de The third and fourth assignments of error, murrer of appellants to appellee's reply ; as shown, are based on rulings of the trial third, that the court erred in not sustain court in denying motions to modify the ing their motion to modify the special find special finding of facts, and to have the court ing of facts; fourth, the court erred in not find certain other additional facts, and to sustaining their motion to state conclusions of state other conclusions of law. There is no law on each material fact found; fifth, over rule of practice or procedure authorizing ruling the motion for a new trial.
such motions, hence, the court did not err An examination of the complaint discloses in denying each and all of them. Tewksbury that appellee complains of Nancy J. Scott as v. Howard, 138 Ind. 103, 37 N. E. 355; Windprincipal, and Joseph Z. Scott as surety, and fall Natural Gas Co. v. Terwilliger, 152 Ind. alleges that on August 8, 1898, said Nancy 364, 53 N. E. 284; Wolverton v. Wolverton, J. Scott became indebted to appellee in the 163 Irid. 26, 71 N. E. 123; Royse et al. v. sum of $4,954.53, as evidenced by a note, a Bourns et al., 149 Ind. 187, 47 N. E. 827. copy of which is filed with and made a The fifth and last error assigned is the part of the complaint. The execution of the overruling of appellants' motion for a new mortgage on the premises described in the trial. The motion in question assigns the complaint to secure the payment of said note following reasons: First. The special findis shown by the averments of the complaint | ing of facts is not sustained by sufficient and a copy of the mortgage is filed with and evidence. Second. It is contrary to law. made a part of the pleading. It is averred Third. The findings numbered 4, 5, 6, and 8 that the note is due and unpaid, and a de are not sustained by sufficient evidence and mand is made for judgment for $7,000, prin are contrary to law. The latter assignment, cipal, interest, and attorney's fees, and a fore that certain enumerated findings are not susclosure of the mortgage. The contention of tained by sufficient evidence, etc., is not appellants in respect to the insufficiency of a proper assignment in a motion for a new the complaint is that, by reason of the fact trial, and therefore must be rejected.
braced, and to raise the question in regard ise
fact, the first and second assignments cover said Powers, and he in return conveyed the entire ground, and fully serve to chal them absolutely to appellant, Mrs. Scott. lenge the sufficiency of the evidence to sup Thereupon she and her husband executed a port the special finding of the court as to note to appellee for the money borrowed by any and all of the material facts therein em the former and also a mortgage on the prem
ises to secure the payment thereof. It is to the finding being, under the evidence, con shown that Mrs. Scott, upon receiving the trary to law. Weaver et al. v. Apple, 147 money which she borrowed from appellee, Ind. 304, 46 N. E. 642. We have read and actually caused the same to be used and considered the evidence in this case and are applied in the payment of the liens existing fully satisfied that it sustains all the mate on the lands conveyed to her by her husrial facts found by the court, and that the band, and thereby was enabled to and did finding thereunder is not contrary to law. become the absolute owner of the premises,
Appellants' theory is that Nancy J. Scott free from all said liens and incumbrances. Afexecuted the note and mortgage in suit as the ter she became the owner of the lands in quessurety of her husband, co-appellant herein, tion, she appears to have allowed the taxes in violation of the statute which forbids a to go unpaid and accumulate thereon, and married woman from entering into any con at her request, or solicitation, appellee, under tract of suretyship. But this theory is whol the mortgage, paid these taxes and the ly unsupported by the facts, for they fully amount so paid is embraced in the note in establish that she was the principal in the suit. This note, and the mortgage securing obligations in suit. The evidence in the case the same, appear to be a renewal of the obliproves that she, herself, borrowed of appellee gations given under the original transaction the money which constitutes the consideration or agreement. The evidence establishes that of the note in question, and that it was ap all matters pertaining to, and leading up to, plied and used by her, or under her direc the borrowing of the money by Mrs. Scott of tions, to the benefit of her separate property appellee, and the execution of the original or estate. It is shown that Joseph Z. Scott, note and mortgage, and the conveyance of husband of appellant at the time of the exe the lands in controversy to her, were all concution of the obligations herein involved, ducted personally by her, and what her husowned the mortgaged premises from the year band did in regard thereto was in accord1865 down to the time at which he conveyed ance with her request and wishes. the same to his wife, Nancy J., as here To recapitulate, she, by the use and means inafter shown. During the period of his own of the money which she obtained from apership, he and his said wife mortgaged the pellee, was thereby enabled to acquire a same to one Kaufman, to secure an indebted good title to and become the owner of the ness contracted by the husband the lands, free of all the existing liens or inamount, in round numbers, of $2,200. In cumbrances. In fact, under the circumNovember, 1890, this mortgaged indebtedness stances, she, in effect, at least, may be said to being due and unpaid, Kaufman commenced have purchased the equity of redemption an action to foreclose the mortgage held by
which her husband owned and held in and him. At that time appellants were residing to the premises in controversy, and used on the mortgaged premises, which was their and applied the money which she borrowed home. In addition to Kaufman's mortgage of appellee in redeeming them from the mortlien, there were several judgment liens exist gage and the judgment liens thereon. She ing against the land. A few days after never was the owner of the property until the commencement, by Kaufman, of the suit she obtained the conveyance thereof from to foreclose, it appears that Mrs. Scott her husband through Powers, who served as went to see appellee for the purpose of bor
a mere conduit for that purpose. Conserowing of her, money to pay off and discharge quently there is no merit in the contention the lien on the land. Appellee was her niece
of her counsel that, in the transaction, she and was residing in the state of Pennsyl. is shown to have evaded, by a circuitous vania. Mrs. Scott succeeded in borrowing of route, the statute forbidding a married appellee $2,463 upon the condition and under woman from becoming a surety. She still the agreement that the premises should be holds the premises, free of the original inconveyed by the husband, Joseph Z. Scott,
cumbrances. That, under the facts, the monto her, Nancy J., through one Henry J. ey which she borrowed of appellee must be Powers, who was the brother of appellee,
held to have inured or conduced to the benefit and at the time was engaged in transacting of her separate property cannot be successbusiness for her. Under the agreement and fully questioned. Therefore she must be recondition the money borrowed from appellee garded and held as the principal debtor in by Mrs. Scott was to be used and applied in the note in suit, and, as such, is liable therethe payment of existing liens against the on. Kedy v. Kramer, 129 Ind. 478, 28 N. E. land and that, after she obtained title thereto, 1121; Cook v. Bulırlage et al., 159 Ind. 162, she and her husband were to execute a mort 64 N. E. 603; Guy et al. v. Liberenz et al., gage thereon to appellee to secure the pay
160 Ind. 524, 65 N. E. 186. The fact that ment of the money borrowed by Mrs. Scott.
the liens which existed against the premises Appellants thereupon conveyed the lands to in question, and which were paid and satis
fied by Mrs. Scott out of the money which 7. SCHOOLS AND SCHOOL DISTRICTS-REGULAshe borrowed from appellee, arose out of an
TION-STATUTES-VALIDITY. indebtedness originally contracted by her hus
A school city, exercising its authority over
the public library of the city by virtue of law, band, can, under the circumstances, exert
has no right to complain that the management no controlling influence in her favor in the of the library has been taken over by a board decision of this case.
of trustees appointed by a majority vote of
the members of the common council as authorWe find that the judgment of the trial
ized by Acts 1903, p. 193, c. 102 (Burns' Ann. court is a correct result, and is therefore St. Supp. 1905, § 4983h et seq). in all things affirmed.
Appeal from Circuit Court, Madison County; John F. McClure, Judge.
Action by the school city of Marion against (168 Ind. 94)
John H. Forrest and others to quiet its title SCHOOL CITY OF MARION V. FORREST
to certain real estate and to secure the poset al. (No. 20,732.) 1
session of the same. From a judgment for (Supreme Court of Indiana. June 6, 1906.) defendants, plaintiff appeals. Affirmed. 1. TAXATION – CONSTITUTIONAL LAW-LEGIS Carroll & Dean and Marshall & Condo, for
LATIVE POWER-DELEGATION TO LOCAL AU-
Kittinger & Diven, Manley &
appellant. The power to tax is within the grant of
Strickler, and Brownlee & Browne, for appellegislative authority, and there can be no dele lees. gation of that authority except to the extent to which it is necessary that taxes shall be levied under legislative authority by the various
GILLETT, J. This case involves the quesmunicipal bodies within the state for the pur tion as to the validity of an act of the Generpose of carrying out the ends for which such
al Assembly approved March 7, 1903 (Acts municipalities are organized.
1903, p. 193, c. 102; Burns' Ann. St. Supp. 1905, [Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, $ 60.]
$ 4983h, et seq.), relative to the creation of li
brary boards in cities of a certain population, 2. SCHOOL DISTRICTS-LIBRARY BOARDS-EsTABLISHMENT.
Otherwise stated, the controversy is between Acts 1903, p. 193, c. 102 (Burns' Ann. St. the school city of Marion, on the one hand, Supp. 1905, $ 4983h et seq.) creating library and the appellees, who claim as members of boards in cities having a certain population, when considered in connection with statutes
the library board of the civil city, appointed authorizing school boards to levy taxes for under the provisions of said act. certain purposes, some which have existed un It is contended by counsel for appellant challenged for 50 years, must be construed as that the enactment is unconstitutional for a an exercise of the power conferred by Const. art. 8, § 1, providing that the General Assembly
number of reasons. Their leading contention shall by suitable means encourage intellectual, is that it involves an unlawful delegation of etc., improvement and to provide by law for a the power of taxation, in that it authorizes the uniform system of common schools, etc.
appointees of the common council to exercise 3. STATUTES-SPECIAL ACT-CORPORATIONS. The library board created by Acts 1903,
such authority. We recognize the validity of 193, c. 102 (Burns' Ann. St. Supp. 1905, the proposition that the power to tax falls, by 4983h et seq.), creating a library board, in implication, within the grant of legislative cities having a certain population, is not a cor
authority, and that, in the main, there can be poration; no franchise being granted, within Const. art. 11, § 13 providing that corporations
no delegation of that authority except to the shall not be created by special act.
extent that our form of government, in which 4. SAME-SPECIAL STATUTES.
local powers have been decentralized, makes Acts 1903, p. 193, c. 102 (Burns' Ann. St.
it necessary that taxes should be levied, under Supp. 1905, $ 4983h et seq.), creating a library | legislative authority, by the various municiboard in cities having a certain population, though enacted under the authority conferred | ipal bodies within the state, for the purpose by Const. art. 1, § 8, authorizing the Legisla of carrying out the ends for which such ture to provide suitable means for the encour
municipalities are organized, but we are not agement of intellectual improvement, etc., is not a local law, but is within article 4, 23, prepared to admit, in view of the provisions under which the question as to whether a of section 1, art. 8, of the Constitution, that general law can be made applicable is a question the act in question involves an improper delfor the Legislature.
egation of the authority to levy taxes. That 5. CONSTITUTIONAL LAW-LEGISLATIVE PowER-DELEGATION.
article provides that, “Knowledge and learnActs 1903, P. 194, c. 102, is not invalid | ing, generally diffused throughout a commun. because section 2 thereof authorizes the common ity, being essential to the preservation of a council to appoint trustees on the petition of a
free government, it shall be the duty of the specified number of citizens and taxpayers of the city; the law being in effect from and after
General Assembly to encourage, by all suitthe date fixed by the Legislature, and only able means, moral, intellectual, scientific, and awaiting the circumstances therein providing for agricultural improvement, and to provide, by its execution and enforcement.
law, for a general and uniform system of 6. SAME-IMPAIRMENT OF CONTRACT OBLIGA
common schools, wherein tuition shall be TIONS. Mere understandings must give way before
without charge and equally open to all.” It the exercise of the police power of the state may, with propriety, be said that a law proin regulating the affairs of its municipal cor
viding for the organization and maintenance porations as against the claim that such legisiation will impair the obligation of contracts.
of public libraries is a part of the education1 Rehearing denied.