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Rep. 314; Conduit Co. v. Com., 90 Pa. St. | principal object, and, indeed, it is not too 308; Transportation Co. v. Coal Co., 5 W. Va. much to say, the sole object, of the statute 382; The Daniel Ball, 10 Wall. 557; Kidd v. is to prevent persons from conveying gas Pearson, 128 U. S. 1, 9 Sup. Ct. Rep. 6. The into another state; and the provisions of the gas in the earth may not be a commercial com- act as to the sinking of wells is so bound up modity; but when brought to the surface, and with the provisions designed to effect the prinplaced in pipes for transportation, it must as- cipal object that separation cannot be made sume that character as completely as coal in without completely destroying the statute, the cars, or petroleum in the tanks. We sup- and substituting another for it, by judicial pose it clear that Pennsylvania could not pro- construction. hibit the transportation of coal or petroleum The power to regulate commerce between to another state, and there is no difference in the states is exclusively in the federal con-principle between cases where coal is the gress. An action by congress will not aucommodity affected and those in which it is thorize the states to legislate in matters of natural gas. It is no doubt true that there interstate commerce. Whatever doubt the is a point at which a natural or manufactured earlier decisions may have created, and cerproduct is not an article of commerce; but tainly there was for a time much confusion. when it assumes such a form as fits it for and conflict, it is completely removed by the transportation from state to state, it is, so far recent decisions; and the law now is that all as the law of interstate commerce is con- legislation in regulation of commerce beIcerned, transformed into a commercial com- tween the states must be enacted by the modity. For the purposes of taxation, an arti- | national legislature. Transportation of comcle of property may not be regarded as a com-mercial commodities from state to state is mercial commodity until it has started on its interstate commerce, and the state legislaway from one state to another; but property that may become an article of commerce cannot be kept in the state where it was produced, by a state law forbidding its transportation. Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. Rep. 475. If this were not so, then not only might coal or petroleum be kept within the state in which it was produced, but so might corn and wheat, cotton and fruit, and lead and iron. If such laws could be enacted and enforced, a complete annihilation of interstate commerce might result; and it was to prevent the possibility of such a result that the provision vesting exclusive power in the federal government was written in the national constitution. State v. Coach Co., 114 Ind. 155, 15 N. E. Rep. 814.

tures can neither burden nor restrict it. Henderson v. Mayor, 92 U. S. 259; Chy Lung v. Freeman, Id. 275; Railroad Co. v. Husen, 95 U. S. 470; Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. Rep. 592; Bowman v. Railroad Co., 125 U. S. 465, 8 Sup. Ct. Rep. 689, 1062; Telegraph Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. Rep. 961; State v. Coach Co., supra.

The power of the federal congress over all matters of interstate commerce, broad as the modern decisions declare it to be, does not absolutely exclude state legislation touching commerce between the states. Police power not delegated to the general government resides in the states, as an inherent attribute of sovereignity. U. S. v. Dewitt, 9 Wall. 41; The question as to the extent of the power Slaughter-House Cases, 16 Wall. 36; U. S. of the state to control the business of mining v. Reese, 92 U. S. 214; Sherlock v. Alling, 93 is not necessarily involved in this contro- U. S. 99; Patterson v. Kentucky, 97 U. S. versy. Granting, but not asserting, that pro- 501: Civil Rights Cases, 109 U. S. 3, 3 Sup. curing natural gas from the earth is min- Ct. Rep. 18; Smith v. Alabama, 124 U. S. ing, still, the question of the power of the 465, 8 Sup. Ct. Rep. 564; Railway Co. v. state over that business is not so involved as State, 128 U. S. 96, 9 Sup. Ct. Rep. 28. The to require our judgment upon it. The pro- states may, so long as they do no more than visions of the statute are so firmly inter- legitimately exercise the police power, legislocked that separation is impossible. Where late upon matters connected with interstate. the provisions of a statute are so clearly commerce. Sherlock v. Alling, supra; Counblended that a separation cannot be effected ty of Mobile v. Kimball, 102 U. S. 691; Smith without substituting another law for that v. Alabama, supra; Railway Co. v. State, suintended to be enacted, none can be made by pra. It is almost impossible, however, in the courts. Griffin v. State, 119 Ind. view of the conflicting and confused state of ante, 7. To authorize the courts to reject the law as declared by the federal supreme part and sustain part of a statute, "the two court, to determine what that tribunal, with parts must be capable of separation, so that which rests the ultimate decision of the each can be read by itself. Limitation by question, will eventually regard as a legiticonstruction is not separation." Baldwin v. mate exercise of the police power of the Franks, 120 U. S. 678, 7 Sup. Ct. Rep. 656, states, since the doctrine declared in the case 763; Virginia Coupon Cases, 114 U. S. 269, of Telegraph Co. v. Pendleton, 122 U. S. 347, 5 Sup. Ct. Rep. 903-932, 962, 1020; Trade- 7 Sup. Ct. Rep. 1126, is much more restrictMark Cases, 100 U. S. 82; U.S. v. Reese, 92 U.|ive of the rights of the states than that asS. 214. In this instance, there is no attempt serted in Smith v. Alabama, Railway Co. v. to regulate the business of mining, except in State, Munn v. Illinois, 94 U. S. 113, and so far as that business may be connected with many earlier cases. But it is evident that transporting natural gas out of the state. The the act under consideration cannot, under

tion.

We are not unmindful of the rule that statutes upon the same subject should be construed together, and we have given all the statutes relating to natural gas careful study. The only conclusion which can be maintained is, as an investigation has convinced us, that the act under immediate mention is not affected by any of the other acts; for it is complete in itself, and has a clearly defined purpose, and that purpose is to prohibit gas from being transported out of the state.

the rule laid down by the court of last resort, | In the title is written: "An act to prohibit any be deemed a legislative exercise of the police person, irni, or corporation, company, or volpower. The act does not assume to provide untary association, organized under the laws for the safety, health, or comfort of the citi- of this state or any other states, from piping, zens; but its object is to prevent the sinking or otherwise conveying, from any point or of gas wells, and the laying of pipe lines, by points in this state, to any point or points. persons who desire to convey gas out of the without the state of Indiana, any natural gas state. It is not a regulation of the mode of or petroleum." The third section of the act procuring, transporting, or using natural prescribes a penalty for a violation of its progas designed to secure the health, safety, or visions; and the provisions of this section apcomfort of the citizens of Indiana. Neither ply to persons who acquire rights by purchase in the title nor in the body of the act is it as well as those who secure rights by conprofessed to be the legislative purpose to demnation. The provisions of the act are regulate the mode of procuring, transporting, therefore firmly interlaced. There is a comor using natural gas. From beginning to plete and indivisible unity. The unification end the purpose is plainly and unmistakably is so thorough that no separation can be efmanifested; and that purpose is to prohibit fected; and nothing remains but to read the the transportation of natural gas beyond the act as an entirety, and as it is written. Taklimits of the state. The act is in effect, as ing the act as it is written, the only possible it is in words, a legislative prohibition di- conclusion is that it was meant to prohibit the rected solely against a designated class of transportation of natural gas from the state persons. It is not the mode or transporta- by any person, natural or artificial, no matter tion against which prohibition is directed, whether the right to the gas and its transporbut the persons who engage in the business.tation is acquired by contract or by condemnaPlainly, too plainly for denial, the object of the statute is to keep natural gas within our borders. Its object is not to protect our citizens from injury from the mode of procuring and transporting gas adopted by those who engage in the business of procuring or transporting it. The act cannot be taken out of the operation of the federal decisions upon the theory that it is a valid exercise of the police power resident in every sovereign state, for the theory is without foundation. The right of eminent domain resides in every state, as one of the great elements of sovereignty. It was at one time held by the supreme court of the United States that the general government could not exercise the right within the territorial limits of a state. Pollard v. Hagan, 3 How. 212–223. But this doctrine was denied in Kohl v. U. S., 91 U. S. 367. Whether the right of a state is or is not exclusive, or how far that of the general government extends, is, however, not material | here; for there can be no doubt that the right dwells in the state. But whether the state can, by the exercise of this right, or by the denial of it, interfere with interstate commerce, is a question of no little difliculty and importance. Happily, we are spared the delicate and difficult task of determining whether a state can delegate the right of eminent domain to persons who confine their business exclusively within the territorial limits of the state, and deny it to those engaged in a business extending from state to state. The language of the act forbids the conclusion, which counsel seek to establish, that the legislature meant to do no more than deny the right of eminent domain to persons desiring to transport natural gas from Indiana. The language of the section we have quoted leaves no room for construction; for, beyond controversy, its meaning is that no person shall be permitted to transport natural gas to another state. But, if there were doubt, it is entirely banished by other parts of the act.

It is not possible to sustain the act, as counsel endeavor to do, upon the principle that the states may impose restrictions on foreign corporations. We have more than once enforced the rule that the legislature may regulate or restrict the business of foreign corporations within this state. Insurance Co. v. Burdett, 112 Ind. 204, 13 N. E. Rep. 705; Insurance Co. v. Brim, 111 Ind. 281, 12 N. E. Rep. 315; State v. Insurance Co., 115 Ind. 257, 17 N. E. Rep. 574; Blackmer v. Insurance Co., 115 Ind. 291, 17 N. E. Rep. 580. But we have not adjudged that the rule can be applied where it operates upon matters of interstate commerce, nor can we do so without coming in direct conflict with the law, as-declared by the court invested with exclusive appellate jurisdiction of such questions. The decisions of that court utterly demolish the theory of counsel, that under the power to restrict foreign corporations may be placed the right to legislate in matters respecting the commerce between the states. decisions are absolutely conclusive.

Those

There may be, and doubtless there are, objections to the act not argued by counsel nor discussed by us. One objection occurs to us which we believe it proper to notice. That objection is this: It is not in the power of the legislature to prevent one citizen from buying or another from selling property. The rights of property are not subject to such absolute legislative control. It is unnecessary

to determine to what limitations the general | tion, and you are to consider it all. You rule we have stated is subject, for it is enough will necessarily find the defendant guilty for to assert the general rule, and affirm that it applies to such property as natural gas, petroleum, and coal. We can find no tenable ground upon which the act can be sustained, and we are compelled to adjudge it invalid. Judgment affirmed.

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2. Under Const. Ind. art. 1, § 19, providing that in all criminal cases, the jury shall have the right to determine the law and the facts, it is error for the court, in an information for assault and battery, where it appears that the conflict between the parties had begun in a store, and had been renewed outside, to instruct the jury that the conflict in the store and the one on the sidewalk outside constituted one transaction.

3. Where it appears that the combatants had been separated, but the complaining witness had continued to apply opprobrious epithets to defendant, whereupon defendant struck him, it was error for the court to instruct the jury that defendant thereby was guilty of an assault, and that they should so find.

Appeal from circuit court, Elkhart county; J. M. VANFLEET, Judge.

Information against Amos J. Myers for assault and battery. The jury rendered a verdict of guilty, and defendant appeals.

H. C. Dodge, for appellant. J. E McCloskey and Wilson & Davis, for the State.

COFFEY, J. This was a prosecution by the state, in the Elkhart circuit court, against the appellant, upon a charge of assault and battery. A trial by jury, upon a plea of not guilty, resulted in a verdict finding the appellant guilty as charged, and assessing a fine of $300. Over a motion for a new trial the court rendered judgment on the verdict. The errors assigned are: First, that the information does not state facts sufficient to constitute a public offense; and, second, that the court erred in overruling the appellant's motion for a new trial. The court instructed the jury on the trial as follows: "I instruct you that the whole affray, from the time of the first encounter in the meat market until the final blow, which knocked said Moore into the gutter, constituted but one transac

the last blow, and fix such punishment for that as you may deem right, within the statutory limits; and, to each of the other claims made by the state, you cannot convict the defendant unless the evidence given in the cause satisfies each of you, beyond a reasonable doubt, that such claim is true. So, also, if there remains a reasonable doubt, either from the evidence or from want of evidence, as to the falsity of any claim made by defendant which would make a defense, you cannot convict. The defendant claims that after the kicking in the face had taken place, and after he and said Moore had been separated, that said Moore again picked up or had a stick in his hands, and walked away, still applying opprobrious epithets to defendant; and that for those reasons he went up to him and struck him, knocking him off the sidewalk, into the gutter. I instruct you that at this point the defendant was guilty of an assault and battery on his own claim, and that you ought to so find."

The only objection urged under the first assignment of error is that the information. does not state the time at which the alleged offense was committed. Section 1756, Rev. St. 1881, provides that no information shall be quashed for omission to state the time at which the offense was committed, in any case in which time is not of the essence of the offense, nor for stating the time imperfectly unless time is of the essence of the offense. Time is not of the essence of a misdemeanor of the kind charged in this information, and under this statute it was not necessary to state the time at which the offense was committed. We think the information states facts sufficient to constitute a public offense.

The other questions presented in the case are much more difficult. Section 19, art. 1, of our constitution is as follows: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts." The evidence in the cause tended to prove that on the 23d day of March, 1889, the appellant and the prosecuting witness, one Moore, had an altercation over the weight of some beef, which resulted in a conflict between them in the place of business owned by the appellant, in the city of Elkhart; that the conflict was immediately renewed on the sidewalk in front of appellant's place of business, in which appellant kicked the prosecuting witness in the face; and that after the combatants had been separated the prosecuting witness, having in his hands a stick of wood, applied an opprobrious epithet to the appellant, when he again struck him for that reason. In the case of Barker v. State, 48 Ind. 163, BUSKIRK, C. J., who wrote the opinion, quoted from Graham & Waterman on New Trials, with approval, the following: "When there is testimony which has any legal effect in a cause, it would be error in the court to determine the weight of it, or the fact which it did or did not ascertain.

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cases in other states may be found which seem to conflict with the decisions above cited, but the rule seems to be firmly fixed in this state that the instruction must leave the jury free to determine for themselves both the law and the evidence, and the instructions given by the court are intended to have no other effect than to inform the judgment of the jury, and cannot bind their consciences. Such being the law in this state, we think the court erred in giving the instruction above set out. As to whether the conflict in the appellant's place of business and the conflict upon the street was one continuous transaction, was a question of fact, which the jury had the right to determine. They had the right to determine, also, the question as to whether the last lick struck by the appellant constituted the offense charged in the information.

whether evidence tends to prove anything | an aggravated burglary, and you have a right pertinent to the issue is a question for the to fix a proper penalty." This instruction court; and, if there be no testimony that was held erroneous, as invading the province ought to have any legal effect it is not error of the jury. We are aware that numerous for the court to inform the jury that it does not prove what it does not tend to prove." In the case of Brooks v. State, 90 Ind. 428, this court, in commenting upon the instructions in that case, said: "Under our system of practice, the court may sum up the evidence and submit hypothetical cases to the jury; but to do either of those things thoroughly and well usually requires very great care. It is a hazardous proceeding for the court, either directly or through the medium of hypothetical cases, to attempt any comments upon the evidence, and particularly to express any opinion upon it, beyond an intimation or statement as to what certain evidence tends to prove. The safer way is for the court to announce general principles ap.plicable to the salient points of the evidence, and leave all inferences from the facts apparently proven, or which the evidence tended to establish, to the jury." In the case of Hudelson v. State, 94 Ind. 426, the court in- | structed the jury as follows: "You have no right to determine the question whether the facts stated in the indictment constitute a public offense, or to determine the sufficiency of the indictment. If the facts stated in the indictment are proven beyond a reasonable doubt, you must convict." It was held by a majority of this court that it was error to give this instruction; and in commenting upon it, ZOLLARS, J., who wrote the opinion, said: "It is insisted that this instruction is

an invasion of the rights of the jury, and an infraction of section 19, art. 1, of the state constitution, which declares that in all criminal cases whatever the jury shall have the right to determine the law and the facts. We can see no escape from this view, unless the instruction is so limited and modified by others as to remove the objections urged against it. The constitution declares, in the broadest and most imperative terms, that in all criminal cases the jury shall have the right to determine the law as well as the facts. *** It has been held that instructions to the jury under our constitution and the statute are not to bind their consciences, but to enlighten their judgments; in other words, the instructions are advisory, and not binding upon the jury." It is contended by the appellee that the case of Anderson v. State, 104 Ind. 467, 4 N. E. Rep. 63, and 5 N. E. Rep. 711, overrules the case last above cited, but we do not agree with counsel in his construction of that case. In the case last above cited the court did nothing more than state to the jury the contention of the prosecuting witness and the contention of the defendant, and left it for them to determine which, if either, was true. In the case of Roberts v. State, 111 Ind. 340, 12 N. E. Rep. 500, the court trying the cause said to the jury: "Under the evidence in this cause, if you find the defendant guilty, it is

The appellant asked the court to give to the jury certain instructions, but, as they may not be applicable to the evidence given on another trial of this cause, we deem it unnecessary to determine the questions presented by the refusal of the court to give them. Judgment reversed, with instructions to the circuit court to grant a new trial, and for further proceedings not inconsistent with this opinion.

(121 Ind. 99)

ZIGLER V. MENGES et al. (Supreme Court of Indiana. Nov. 19, 1889.) DRAINAGE-PETITION-FINDINGS-COSTS.

1. On a petition for the construction of a ditch to drain the lands of the petitioners and others, where the jury find that the proposed ditch is practicable, and will be a public benefit, such finding is conclusive, and cannot be reviewed on appeal.

2. It is not necessary, in such case, that the finding of the jury should specifically describe the tract of land the ditch would drain. 3. A finding that six acres of the remonstrant's land will be benefited by the ditch, without stating what particular tract is meant, does not describe the land sufficiently for the purpose of as

sessment.

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and ponds, is of public utility, and is conducive to public welfare, health, and convenence. Anderson v. Draining Co., 14 Ind. 199; O'Reiley v. Draining Co., 32 Ind. 169; Seely v. Sebastian, 4 Or. 25; Coster v. Tide Water Co., 18 N. J. Eq. 66; Springfield v. Gay, 12 Allen, 612; Wright v. Boston, 9 Cush. 233; Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. Rep. 663.

ELLIOTT, C. J. The appellees petitioned | sion the verdict declares. The reclamation for the construction of a ditch, and the ap- of wet lands, and the draining of marshes pellant remonstrated against it. A special verdict was returned, of which this is the substance: The lands along the entire line of the proposed ditch, except for a distance of 300 feet at the lower end, are wet and marshy. The natural trend of the land through which the ditch will run is such as to cause the surface water, when unobstructed, to flow from a south-east direction, north and west, in the general direction of As said in Ross v Davis, 97 Ind. 79: "It the ditch. Before the Lake Shore & Michi- is not necessary, in order that the use may be gan Railroad was built, which was about regarded as public, that the whole commuthe year 1852, the surface water from the nity, or any large portion of it, may particilands along the line of the ditch, as well pate in it. If the drain be of public benefit, as the lands further south and east, flowed the fact that some individuals may be speto a point near the terminus of the ditch, cially benefited above others affected by it and there accumulated. The subsoil at that will not deprive it of its public character." point is of such a nature that the water The community is benefited by anything that sinks away in two weeks' time. In building makes considerable bodies of land arable, and the railroad the earth was thrown up on adds to their taxable value, and so it is by either side, and an embankment was con- anything that lessens disease. The legislastructed on which the track was laid. On ture has declared that the drainage of wet either side of this embankment an excava- lands is a matter of public benefit, and it has tion was dug, and these excavations are from left to the local tribunals nothing more than two to four feet lower than the adjoining the duty of determining whether a particular land. After the construction of the rail- ditch will be of public utility, or will be conroad, the surface water from the lands of ducive to the public health, welfare, and conthe petitioners and of the remonstrant, as venience. If the particular ditch will drain well as from other lands, continued to flow any considerable body of wet lands, it is of in the direction and along and near the south public utility and benefit. Coster v. Tideline of the proposed ditch, and accumulated Water Co., supra; O'Reiley v. Draining Co., in the ditches or excavations along the rail- supra. Judge Cooley says: "Where any conroad embankment, where it sank away in siderable tract of land, owned by different the ground. For many years before the pe- persons, is in a condition precluding cultitition for the ditch was filed an old ditch ex-vation by reason of excessive moisture, which isted along nearly the entire line of the proposed ditch, and into this old ditch the water from the surrounding lands flowed, and was conducted to the excavations along the railroad embankment. The line of the proposed ditch is the only natural or artificial practical water-way for the flow of the water from adjoining lands, and there is no other practical outlet for such water, except the excavations along the side of the embankment constructed by the railroad company. The proposed ditch will be of public utility; it will be conducive to the public health, convenience, and welfare, and the proposed route is practicable. It has not a sufficient outlet in case of a freshet. Six acres of appellant's land will be benefited to the amount of $24. The benefit to the lands consists in making them dryer, and better adapted to cultivation. The land of appellant, lying north of the railroad, will be damaged in the sum of $100. The verdict also states that the lands of other persons named will be benefited, but we think it unnecessary to give names and details.

drains would relieve, it may well be said that the public have such an interest in the improvement and the consequent advancement of the general interest of the locality as will justify the levy of assessments upon the owners for drainage purposes. Such a case would seem to stand upon the same solid ground with assessments for levee purposes, which have for their object to protect lands from falling into a like condition of uselessness." Cooley, Tax'n, (2d Ed.) 617. Our own cases, already cited, refer the authority to direct the drainage of wet lands to the police power of the state, and in so far as the drainage does promote the health, comfort, and convenience of the public it is by virtue of this great power that the authority is exercised. The police power, it has been said, is that "inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society. Lake View v. Cemetery Co., 70 Ill. 191. "All laws," says another court, "for the protection of the lives, limbs, health, and quiet of persons, and the security of all propWe are satisfied that facts are found which erty within the state, fall within the general enable the court to adjudge that the proposed power of the government." State v. Noyes, ditch will be conducive to the public health, 47 Me. 189. By our own and many other convenience, and welfare, and that it will be courts this doctrine has been affirmed. of public utility. Laying out of considera- Hockett v. State, 105 Ind. 250, 5 N. E. Rep. tion the general statements of the jury, we 178; Eastman v. State, 109 Ind. 278, 10 N. think facts appear which justify the conclu- E. Rep. 97; Wilkins v. State, 113 Ind. 514,

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