The errors assigned call in question the first and third conclusions of law. It appears from the record that in 1861, George Donaldson, then 50 years of age, a bachelor who never afterwards married, a native of Scot land and until his death on September 17, 1898, a subject of Queen Victoria, emigrated to the United States and became at once and remained, until his return to Scotland in the year 1896, a bona fide resident of the United States. The tracts of land in controversy were conveyed to him by deeds of warranty in the years 1865 and 1867. He became and remained a bona fide resident of Lawrence county, Ind., from September, 1865, until in 1883, when he removed to the state of Alabama, of which he was a bona fide resident until he returned to Scotland in the year 1896, where he remained the rest of his life. He did not, at any time, declare his intention to become a citizen of the United States conformable to the acts of Congress. He died intestate, leaving as his next of kin appellants, who are descendants of his brothers and sisters, all of whom were, at the time of said George Donaldson's death, and ever since have been, residents of Scotland, and subjects of the Queen of Great Britain and Ireland.

It was the thory of the state in the trial court, as shown by the record, that when George Donaldson returned to Scotland in 1896, he became a resident thereof, and continued to be such resident until his death in 1898. Appellants question the sufficiency of the court's finding to sustain this theory. The findings on this subject are as follows: "(4) The George Donaldson mentioned in the complaint, cross-complaint, and other pleadings in this case, was born in Scotland, in the United Kingdom of Great Britain and Ireland, in the year 1811, and died on the 17th day of September, 1898, at the Maidens, Ayrshire, Scotland, in said kingdom. That said George Donaldson was, during his entire life, a subject of the monarch of said kingdom, and did not at any time declare his intention to become or become a citizen of the United States conformably to the acts of Congress applicable to that subject. (5) Said George Donaldson, late in the year 1860, or early in the year 1861, emigrated from Scotland to the United States of America, and at once became a bona fide resident of the United States, and so continued to be until the year 1896, when he returned to Scotland, where, soon becoming ill, he remained until his death. In the month of September, 1865, or earlier in that year, and before September 19, 1865, said George Donaldson became a bona fide resident of Lawrence county, in the state of Indiana, and so remained until some time in the year 1883, when he removed his residence to the state of Alabama, in the United States of America, where he was a bona fide resident until he so returned to Scotland, in the year 1896, whether with intent to return to the United States is not known."

The state insists that upon said fourth and fifth findings of fact, "the conclusion of law arises that George Donaldson died a resident of Scotland, for the reasons: (1) A man is presumed to be domiciled where he is found, unless he is shown to be there for some temporary purposes. (2) A stronger presumption exists that a man is domiciled where he dies. (3) On the return of an alien to his domicile of origin his original domicile instantly reverts. (4) In doubtful cases the original domicile is considered the true one." Citing Dicey on Conflict of Laws (Am. Ed.) pp. 132, 133; The Bernon, 1 C. Rob. Adm. 102, 104; Kennedy v. Ryall, 67 N. Y. 379, 386; Ryall v. Kennedy, 4 N. Y. Super. Ct. 347, 361; March v. Hutchinson, 2 Bosanquit & Puller, 23, note; Rogers v. The Amado, Newb. 400, Fed. Cas. No. 12,005; Butler v. Farnsworth, 4 Wash. C. C. 101, Fed. Cas. No. 2,240; Elbers v. United Insurance Co., 16 Johns. (N. Y.) 128, 133; Bradstreet v. Bradstreet, 18 D. C. (7 Mackey) 229; Clough v. Kyne, 40 Ill. App. 234, 236; Ennis v. Smith, 14 How. (U. S.) 400, 423, 14 L. Ed. 472; Anderson v. Watt, 138 U. S. 694, 706, 11 Sup. Ct. 449, 34 L. Ed. 1078; United States v. Chong Sam (D. C.) 47 Fed. 878, 886; Greenfield v. Camden, 74 Me. 56, 64; Liscomb v. N. J. R. Co., 6 Lans. (N. Y.) 75, 77; Horne v. Horne, 31 N. C. 99, 108; Kellar v. Baird, 5 Heisk. (Tenn.) 39, 46; Venable v. Paulding, 19 Minn. 488, 495 (Gil. 422); Mowry v. Latham, 17 R. I. 480, 481, 23 Atl. 13; Guier v. O'Daniel, 1 Bin. (Pa.) 349, 351, note, 1 Am. Leading Cases (Hare & Wallace) 733, 734, 753; Haskins v. Matthews, 8 DeG. M. & G. 13, 26, 35 Eng. L. & Eq. 532, 540; Haldane v. Eckford, L. R. 8 Eq. 631, 641; Johnston v. Beattie, 10 Clark & F. 42, 138; Wharton on Conflict of Laws (2d Ed.) § 55a; (3d Ed.) § 552, and cases cited; Atty. General v. Winans, 85 L. T. N. S. 508, 65 J. P. 819; Anderson v. Watt, 138 U. S. 694, 706, 11 Sup. Ct. 449, 34 L. Ed. 1078; Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. 533; Hairston v. Hairstón, 27 Miss. 704, 61 Am. Dec. 530; Hinuman's Appeal, 85 Pa. 466, 468; Anderson v. Laneville, 9 Moore P. C. 325, 334; President, etc., v. Drummond, 33 Beav. 449, 452, 33 L. J. (N. S.) Ch. 501, 503; King v. United States, 27 Ct. of Cl. 529, 533; Reed's Appeal, 71 Pa. 378; In re Bruce, 3 Tyr. 475, 486, 2 C. J. 436; King v. Foxwell, L. R. 3 Ch. Div. 518, 521; Capdevielle v. Capdevielle, 21 L. T. (N. S.) 660, 18 W. R. 107; White v. Brown, 1 Wall. Jr. 217, 265, Fed. Cas. No. 17,538; Charles Green's Son v. Salas (C. C.) 31 Fed. 106, 112; U. S. v. Chong Sam (D. C.) 47 Fed. 878, 886; First National Bank v. Balcom, 35 Conn. 351, 357; In re Wrigley, 8 Wend. (N. Y.) 134, 140; Sheldon v. Forsman, 17 Lanc. L. Rev. 85, 87, 14 York Leg. Reg. 102; Marks v. Marks (C. C.) 75 Fed. 321, 329; La Virginie, 5 C. Rob. Adm. 98, 99; The Ann Green, 1 Gall. 274, 286, Fed. Cas. No. 414; Catlin v. Gladding, 4 Mason, 308, Fed. Cas. No. 2,520; Prentiss v. Barton, 1 Brock. 389, Fed. Cas. No. 11,384; Hallet v. Bassett, 100 Mass. 167, 170; Lord v.

Calvin, 4 Drew. 366, 422; The Venus, 8 Cranch, 253, 280, 3 L. Ed. 553; In re Walker, 1 Low. 237, 238, Fed. Cas. No. 17,061; Burnham v. Rangeley, 1 Woodb. & M. 7, Fed. Cas. No. 2,176; State v. Hallett, 8 Ala. 159, 161; Miller's estate, 3 Rawle (Pa.) 312, 319, 24 Am. Dec. 345; Udny v. Udny, 2 Ac. App. 1,677, 1,683; Munro v. Munro, 7 Cl. & F. 842, 876; Colville v. Lander, Dictionary of Decisions, p. 14,964; The Indian Chief, 3 C. Rob. Adm. 17; Goods of West, 6 Jur. (N. S.) 831; Price v. Price, 156 Pa. 617, 27 Atl. 291. The authorities cited do not sustain the contention of appellee that said presumptions are presumptions of law, but hold that they are presumptions of fact, or, as some of them state, "prima facie" evidence thereof. It is settled in this state that nothing can be added to a special finding by presumption, inference, or intendment, and that where a special finding is silent upon a material point it is deemed to be found against the one who has the burden of proof. Cleveland, etc., Ry. Co. v. Moneyhun, 146 Ind. 147, 153, 44 N. E. 1106, 34 L. R. A. 141, and cases cited; Craig | v. Bennett, 146 Ind. 574, 575, 45 N. E. 792, and cases cited; Crowder v. Riggs, 153 Ind. 158, 162, 53 N. E. 1019; Bradway v. Groenendyke, 153 Ind. 508, 512, 55 N. E. 434; Citizens' Bank v. Julian, 153 Ind. 655, 676, 55 N. E. 1007; Erwin v. Central, etc., Co., 148 Ind. 365, 371, 46 N. E. 667, 47 N. E. 663; Hill v. Swihart, 148 Ind. 319, 323, 47 N. E. 705; Archibald v. Long, 144 Ind. 451, 454, 455, 43 N. E. 439; Brunson v. Henry, 152 Ind. 310, 314, 52 N. E. 407. There is no finding that said Donaldson was, at the time of his death, a resident of Scotland, and under the rule in this state, as we have shown, we have no authority to infer or presume as a fact from the facts found by the trial court that he was, even though the trial court might or should have done so. There is much argument to the effect that without such finding, under the law in force at the death of Donaldson, the conclusions of law should be sustained and the judgment affirmed, but we have not considered such argument and the questions presented thereby, as this would permit the abandonment of the theory upon which the cause was tried and determined, which cannot be done under the familiar rule that theory upon which the case was tried must be adhered to on appeal.

By express provision of statute this court is authorized to order a new trial when the justice of the case requires it (section 672, Burns' Ann. St. 1901; section 660, Rev. St. 1881; section 660, Horner's Ann. St. 1901), and this power has often been exercised. McCoy v. Kokomo, etc., Ry. Co., 158 Ind. 662, 667, 64 N. E. 92, and cases cited; Buchanan v. Milligan, 108 Ind. 433, 434, 9 N. E. 385, and cases cited; Stewart v. Patrick, 5 Ind. App. 50, 58, 30 N. E. 814, and cases ci. 1. We think such an order should be made in this-case.

Judgment reversed, with instructions to grant a new trial, with leave to amend pleadings if desired.

(166 Ind. 644)

SCOTT et al. v. COLLIER. (No. 20,817.)1 (Supreme Court of Indiana. June 5, 1906.) 1. BILLS AND NOTES-ACTION ON NOTE-COMPLAINT-SUFFICIENCY.

A complaint in an action on a note against Nancy S., as principal, and Joseph S., as surety, and not showing that the parties were married, was not insufficient as against an attack made for the first time on appeal on the ground that defendants were husband and wife, and that the pleading did not show that the contract was one into which a married woman had power to enter.

2. PLEADING-Demurrer-GROUNDS FOR DEMURRER TO REPLY.

It was proper to overrule a demurrer to a reply on the ground that the reply did not state facts sufficient to constitute a defense to the answer; no such grounds for demurring to a reply being recognized by the Civil Code. [Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 453.] 3. TRIAL-TRIAL BY COURT-FINDINGS-COR

RECTION.

It was proper to deny a motion to modify a special finding of facts by the court, and to have other additional facts found, and to state other conclusions of law; there being no rule of practice or procedure authorizing such motion.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 951, 952.]

4. NEW TRIAL-ASSIGNMENT OF ERRORS-SUFFICIENCY.

An assignment that certain enumerated findings are not sustained by sufficient evidence is not a proper assignment in a motion for a new trial.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. New Trial, §§ 257, 261.]

5. HUSBAND AND WIFE-LIABILITY OF MARRIED WOMAN.

Where a wife procured a conveyance to herself of the husband's land, which was incumbered by mortgages, and she borrowed money to pay them off, and gave the lender a note and mortgage signed by herself and her husband, she was liable on the note, as the transaction represented thereby was for the benefit of her estate.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Husband and Wife, § 638.]

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by Emma B. Collier against Nancy Scott and others. From a judgment of the Appellate Court (77 N. E. 666), affirming a judgment in favor of plaintiff, defendants appeal. Affirmed.

Kenner, Lucas & Kenner, for appellants. B. M. Cobb and C. W. Watkins, for appellee.

JORDAN, C. J. This is an appeal from the judgment of the First Division of the Appellate Court, affirming a judgment of the Wabash circuit court. It appears that appellee commenced this action against appellants in the Huntington circuit court to recover on a promissory note and for the foreclosure of a mortgage executed to secure 'Rehearing denied.

the payment thereof. The case was venued to the Wabash circuit court. Appellants filed a joint answer to the complaint. Nancy J. Scott also filed a separate answer, alleging therein that at the time she executed the note and mortgage she was a married woman and had executed the same as a surety of her husband, her codefendant in the action; that the note was executed by her to the plaintiff for borrowed money, which was used and applied in paying the separate debts of her said husband; and that no part thereof was expended or used for her benefit, etc. Appellee replied by the general denial to the joint answer of appellants, and to the separate answer of Nancy J. Scott she replied affirmative matter in avoidance of said answer. To this reply appellants severally demurred, assigning as the only ground of demurrer that the reply did not state facts sufficient to constitute a defense to the defendants' answer. This demurrer was overruled, to which defendants, appellants herein, excepted, and this is the ruling upon which the second assignment of error is predicated. Upon the issues as joined between the parties there was a trial by the court and a special finding of facts and conclusions of law thereon in favor of appellee. Over appellants' motion for a new trial, assigning therein that the special finding is not sustained by sufficient evidence and is contrary to law, a judgment was rendered in favor of appellee, against both appellants, for $6,744.16, principal, interest, and attorney's fees, and a foreclosure of the mortgage was decreed. From this judgment appellants appealed to the Appellate Court, and separately assigned therein as errors, first, that the complaint does not state facts sufficient to constitute a cause of action; second, that the court erred in overruling the separate demurrer of appellants to appellee's reply; third, that the court erred in not sustaining their motion to modify the special finding of facts; fourth, the court erred in not sustaining their motion to state conclusions of law on each material fact found; fifth, overruling the motion for a new trial.

An examination of the complaint discloses that appellee complains of Nancy J. Scott as principal, and Joseph Z. Scott as surety, and alleges that on August 8, 1898, said Nancy J. Scott became indebted to appellee in the sum of $4,954.53, as evidenced by a note, a copy of which is filed with and made a part of the complaint. The execution of the mortgage on the premises described in the complaint to secure the payment of said note is shown by the averments of the complaint and a copy of the mortgage is filed with and made a part of the pleading. It is averred that the note is due and unpaid, and a demand is made for judgment for $7,000, principal, interest, and attorney's fees, and a foreclosure of the mortgage. The contention of appellants in respect to the insufficiency of the complaint is that, by reason of the fact

that they are husband and wife, therefore the pleading, in order to state a cause of action against Nancy J. Scott, the wife, must by proper allegation or averment show that the contract in suit was one into which she, under the law, as a married woman, had the power to enter. But counsel seemingly misapprehend the fact that the complaint in this case does not upon its face, nor by either of the exhibits filed therewith, disclose that the relation of husband and wife existed between the appellants at the time of the execution of the note and mortgage in suit. As to whether Nancy J. Scott was at that time a married woman the complaint is entirely silent. Consequently, under the circumstances, the point advanced as to its sufficiency is wholly without support. Whether the pleading would be sufficient as to both appellants if tested by a demurrer we need not, and do not, decide. That, under the facts therein alleged, it is sufficient as against an attack for the first time on appeal is settled beyond controversy. Xenia, etc., Co. v. Macy, 147 Ind. 568, 47 N. E. 147; Peoria, etc., Ry. Co. v. Attica, etc., Ry. Co., 154 Ind. 218, 56 N. E. 210.

It will be noted that the cause assigned in the demurrer of appellants to the reply of appellee to the separate answer of Nancy J. Scott is that said reply does not state facts sufficient to constitute a defense to the answer. No such ground or cause for demurring to a reply is recognized by our Civil Code, and for that reason alone, if for no other, the court did not err in overruling the demurrer. Therefore appellants' second assignment of error must fail. Peden v. Mail, 118 Ind. 556, 20 N. E. 493; Krathwohl v. Dawson, guardian, 140 Ind. 1, 6, 38 N. E. 467, 39 N. E. 496.

The third and fourth assignments of error, as shown, are based on rulings of the trial court in denying motions to modify the special finding of facts, and to have the court find certain other additional facts, and to state other conclusions of law. There is no rule of practice or procedure authorizing such motions, hence, the court did not err in denying each and all of them. Tewksbury v. Howard, 138 Ind. 103, 37 N. E. 355; Windfall Natural Gas Co. v. Terwilliger, 152 Ind. 364, 53 N. E. 284; Wolverton v. Wolverton, 163 Ind. 26, 71 N. E. 123; Royse et al. v. Bourns et al., 149 Ind. 187, 47 N. E. 827. The fifth and last error assigned is the overruling of appellants' motion for a new trial. The motion in question assigns the following reasons: First. The special finding of facts is not sustained by sufficient evidence. Second. It is contrary to law. Third. The findings numbered 4, 5, 6, and 8 are not sustained by sufficient evidence and are contrary to law. The latter assignment, that certain enumerated findings are not sustained by sufficient evidence, etc., is not a proper assignment in a motion for a new trial, and therefore must be rejected. In

fact, the first and second assignments cover the entire ground, and fully serve to challenge the sufficiency of the evidence to support the special finding of the court as to any and all of the material facts therein embraced, and to raise the question in regard to the finding being, under the evidence, contrary to law. Weaver et al. v. Apple, 147 Ind. 304, 46 N. E. 642. We have read and considered the evidence in this case and are fully satisfied that it sustains all the material facts found by the court, and that the finding thereunder is not contrary to law.

Appellants' theory is that Nancy J. Scott executed the note and mortgage in suit as the surety of her husband, co-appellant herein, in violation of the statute which forbids a married woman from entering into any contract of suretyship. But this theory is wholly unsupported by the facts, for they fully establish that she was the principal in the obligations in suit. The evidence in the case proves that she, herself, borrowed of appellee the money which constitutes the consideration of the note in question, and that it was applied and used by her, or under her directions, to the benefit of her separate property or estate. It is shown that Joseph Z. Scott, husband of appellant at the time of the execution of the obligations herein involved, owned the mortgaged premises from the year 1865 down to the time at which he conveyed the same to his wife, Nancy J., as hereinafter shown. During the period of his ownership, he and his said wife mortgaged the same to one Kaufman, to secure an indebtedness contracted by the husband to the amount, in round numbers, of $2,200. In November, 1890, this mortgaged indebtedness being due and unpaid, Kaufman commenced an action to foreclose the mortgage held by him. At that time appellants were residing on the mortgaged premises, which was their home. In addition to Kaufman's mortgage lien, there were several judgment liens existing against the land. A few days after the commencement, by Kaufman, of the suit to foreclose, it appears that Mrs. Scott went to see appellee for the purpose of borrowing of her, money to pay off and discharge the lien on the land. Appellee was her niece and was residing in the state of Pennsylvania. Mrs. Scott succeeded in borrowing of appellee $2,463 upon the condition and under the agreement that the premises should be conveyed by the husband, Joseph Z. Scott, to her, Nancy J., through one Henry J. Powers, who was the brother of appellee, and at the time was engaged in transacting business for her. Under the agreement and condition the money borrowed from appellee by Mrs. Scott was to be used and applied in the payment of existing liens against the land and that, after she obtained title thereto, she and her husband were to execute a mortgage thereon to appellee to secure the payment of the money borrowed by Mrs. Scott. Appellants thereupon conveyed the lands to

said Powers, and he in return conveyed them absolutely to appellant, Mrs. Scott. Thereupon she and her husband executed a note to appellee for the money borrowed by the former and also a mortgage on the premises to secure the payment thereof. It is shown that Mrs. Scott, upon receiving the money which she borrowed from appellee, actually caused the same to be used and applied in the payment of the liens existing on the lands conveyed to her by her husband, and thereby was enabled to and did become the absolute owner of the premises, free from all said liens and incumbrances. After she became the owner of the lands in question, she appears to have allowed the taxes to go unpaid and accumulate thereon, and at her request, or solicitation, appellee, under the mortgage, paid these taxes and the amount so paid is embraced in the note in suit. This note, and the mortgage securing the same, appear to be a renewal of the obligations given under the original transaction or agreement. The evidence establishes that all matters pertaining to, and leading up to, the borrowing of the money by Mrs. Scott of appellee, and the execution of the original note and mortgage, and the conveyance of the lands in controversy to her, were all conducted personally by her, and what her husband did in regard thereto was in accordance with her request and wishes.

To recapitulate, she, by the use and means of the money which she obtained from appellee, was thereby enabled to acquire a good title to and become the owner of the lands, free of all the existing liens or incumbrances. In fact, under the circumstances, she, in effect, at least, may be said to have purchased the equity of redemption which her husband owned and held in and to the premises in controversy, and used and applied the money which she borrowed of appellee in redeeming them from the mortgage and the judgment liens thereon. She never was the owner of the property until she obtained the conveyance thereof from her husband through Powers, who served as a mere conduit for that purpose. Consequently there is no merit in the contention of her counsel that, in the transaction, she is shown to have evaded, by a circuitous route, the statute forbidding a married woman from becoming a surety. She still holds the premises, free of the original incumbrances. That, under the facts, the money which she borrowed of appellee must be held to have inured or conduced to the benefit of her separate property cannot be successfully questioned. Therefore she must be regarded and held as the principal debtor in the note in suit, and, as such, is liable thereon. Kedy v. Kramer, 129 Ind. 478, 28 N. E. 1121; Cook v. Buhrlage et al., 159 Ind. 162, 64 N. E. 603; Guy et al. v. Liberenz et al., 160 Ind. 524, 65 N. E. 186. The fact that the liens which existed against the premises in question, and which were paid and satis

fied by Mrs. Scott out of the money which she borrowed from appellee, arose out of an indebtedness originally contracted by her husband, can, under the circumstances, exert no controlling influence in her favor in the decision of this case.

We find that the judgment of the trial court is a correct result, and is therefore in all things affirmed.

(168 Ind. 94)

SCHOOL CITY OF MARION v. FORREST et al. (No. 20,732.)1

(Supreme Court of Indiana. June 6, 1906.) 1. TAXATION - CONSTITUTIONAL LAW-LEGISLATIVE POWER-DELEGATION TO LOCal AuTHORITIES.

The power to tax is within the grant of legislative authority, and there can be no delegation of that authority except to the extent to which it is necessary that taxes shall be levied under legislative authority by the various municipal bodies within the state for the purpose of carrying out the ends for which such municipalities are organized.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 60.]

2. SCHOOL DISTRICTS-LIBRARY BOARDS-ESTABLISHMENT.

Acts 1903, p. 193, c. 102 (Burns' Ann. St. Supp. 1905, § 4983h et seq.) creating library boards in cities having a certain population, when considered in connection with statutes authorizing school boards to levy taxes for certain purposes, some which have existed unchallenged for 50 years, must be construed as an exercise of the power conferred by Const. art. 8, § 1, providing that the General Assembly shall by suitable means encourage intellectual, etc., improvement and to provide by law for a uniform system of common schools, etc. 3. STATUTES-SPECIAL ACT-CORPORATIONS.

The library board created by Acts 1903, 193, c. 102 (Burns' Ann. St. Supp. 1905, 4983h et seq.), creating a library board, in cities having a certain population, is not a corporation; no franchise being granted, within Const. art. 11, § 13 providing that corporations shall not be created by special act. 4. SAME-SPECIAL STATUTES.

Acts 1903, p. 193, c. 102 (Burns' Ann. St. Supp. 1905, § 4983h et seq.), creating a library board in cities having a certain population, though enacted under the authority conferred by Const. art. 1, § 8, authorizing the Legislature to provide suitable means for the encouragement of intellectual improvement, etc., is not a local law, but is within article 4, 8'23, under which the question as to whether a general law can be made applicable is a question for the Legislature.

5. CONSTITUTIONAL LAW-LEGISLATIVE PowER-DELEGATION.

Acts 1903, p. 194, c. 102, is not invalid because section 2 thereof authorizes the common council to appoint trustees on the petition of a specified number of citizens and taxpayers of the city; the law being in effect from and after the date fixed by the Legislature, and only awaiting the circumstances therein providing for its execution and enforcement.

6. SAME-IMPAIRMENT OF CONTRACT OBLIGA

TIONS.

Mere understandings must give way before the exercise of the police power of the state in regulating the affairs of its municipal corporations as against the claim that such legislation will impair the obligation of contracts. 1 Rehearing denied.

7. SCHOOLS AND SCHOOL DISTRICTS-REGULATION-STATUTES-VALIDITY.

A school city, exercising its authority over the public library of the city by virtue of law, has no right to complain that the management of the library has been taken over by a board of trustees appointed by a majority vote of the members of the common council as authorized by Acts 1903, p. 193, c. 102 (Burns' Ann. St. Supp. 1905, § 4983h et seq).

Appeal from Circuit Court, Madison County; John F. McClure, Judge.

Action by the school city of Marion against John H. Forrest and others to quiet its title to certain real estate and to secure the possession of the same. From a judgment for defendants, plaintiff appeals. Affirmed.

Carroll & Dean and Marshall & Condo, for appellant. Kittinger & Diven, Manley & Strickler, and Brownlee & Browne, for appellees.

GILLETT, J. This case involves the question as to the validity of an act of the General Assembly approved March 7, 1903 (Acts 1903, p. 193, c. 102; Burns' Ann. St. Supp. 1905, § 4983h, et seq.), relative to the creation of library boards in cities of a certain population. Otherwise stated, the controversy is between the school city of Marion, on the one hand, and the appellees, who claim as members of the library board of the civil city, appointed under the provisions of said act.

It is contended by counsel for appellant that the enactment is unconstitutional for a number of reasons. Their leading contention is that it involves an unlawful delegation of the power of taxation, in that it authorizes the appointees of the common council to exercise such authority. We recognize the validity of the proposition that the power to tax falls, by implication, within the grant of legislative authority, and that, in the main, there can be no delegation of that authority except to the extent that our form of government, in which local powers have been decentralized, makes it necessary that taxes should be levied, under legislative authority, by the various municiipal bodies within the state, for the purpose of carrying out the ends for which such municipalities are organized, but we are not prepared to admit, in view of the provisions of section 1, art. 8, of the Constitution, that the act in question involves an improper delegation of the authority to levy taxes. That article provides that, "Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government, it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement, and to provide, by law, for a general and uniform system of common schools, wherein tuition shall be without charge and equally open to all." It may, with propriety, be said that a law providing for the organization and maintenance of public libraries is a part of the education