*

of the object or common design of the conspir- | acts of the conspirators charged in this inacy. There is another limitation on the dictment a different question would be prerule admitting the declarations of a coconspirator as evidence. This limitation is to the effect sented, but the gravamen of this charge is that declarations made by one of the conspira- the unlawful agreement of the parties chargtors after the conspiracy has been effected and ed, and it is not competent to show in supthe crime perpetrated * are not admissible against any except the person making port of this conspiracy that appellant enthem." Baker v. State, 174 Ind. 708-713, 93 tered into unlawful agreements with others N. E. 14; Elliott, Evidence, §§ 2943, 2944; 1 than the one named in the indictment, or Greenleaf, Evidence (16th Ed.) § 184; Moore v. committed other larcenies upon other occaShields (1889) 121 Ind. 267, 23 N. E. 89: Ford sions. v. State (1887) 112 Ind. 373-382, 14 N. E. 241; Card v. State (1886) 109 Ind. 415, 9 N. E. 591. Mr. Justice Mitchell, in the case of Moore v. Shields, supra, says:

"If the conspiracy has not yet been formed, or if it has ended by the consummation of the criminal design, mere admissions or narrations of what has taken place, which had no tendency to promote the common design, are not admissible against those who were not present when

the admissions were made."

Other questions are presented, but, in view of the conclusion reached and in view of the fact that the Attorney General insists that they are not properly presented in the briefs, and the further fact that they may not arise in a subsequent trial, we do not deem it advisable to extend this opinion to consider them.

Judgment is reversed, with instructions to grant a new trial, and the clerk of this court is directed to issue the usual order for the return of appellant to the sheriff of Vanderburgh county.

(No. 22897.)

(185 Ind. 139)

[3] Complaint is made that the court permitted the state to prove other transactions of similar character; i. e., conspiracies with persons other then Ohlrogge to commit other larcenies, or to obtain other personal property than that alleged in the indictment. This evidence was of statements made by an TEMPLE et al. v. STATE ex rel. LIMBACH. alleged coconspirator in the absence of appellant, and was erroneously admitted for that reason. This was hearsay in its nature and incompetent in addition to the fact that any statement made by a coconspirator after the consummation of the conspiracy was not binding on appellant, besides, as was said by this court in Porter v. State, 173 Ind. 694703, 91 N. E. 340, citing Dunn v. State, 162 Ind. 174, 70 N. E. 521:

"The law will not permit the state to depart from the issue, and introduce evidence of other extraneous offenses or misconduct that have no natural connection with the pending charge, and which are calculated to prejudice the accused in his defense"-citing a number of cases.

It must be remembered that this is not an indictment for the crime of larceny, but is a charge of entering into a conspiracy with a certain other person to commit the crime of larceny, and it would be no more competent to introduce the evidence of other conspiracies than it would be to show in a charge of rape that the defendant had committed the same crime upon another person at some other time and place.

(Supreme Court of Indiana. June 23, 1916.) 1. APPEAL AND ERROR 791-DISMISSAL —

WAIVER OF RIGHT-BRIEFS.

Where prior to the filing of motion to dismiss an appeal appellee asked and obtained an extension of time in which to file his brief, he waived the right to ask for dismissal under rule 21% of the Supreme Court (95 N. E. vii), providing that extension of time to file briefs shall be granted only upon petition, stating that the court in which the case is pending has jurisdiction, and showing that the brief will be on the merits, and that all motions to dismiss and all dilatory motions in the cause on behalf of petitioner have been filed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3133-3136; Dec. Dig. 791.]

2. MANDAMUS 154(2) — COMPLAINT-DUTY OF RESPONDENT.

school trustees to sell bonds to pay him on a conIn mandamus by a contractor to compel tract for constructing a school building to take the place of an old one, the complaint sufficiently showed that the site of the school being built able that the new building was on the site of the was owned by the township, where it was inferold.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 297, 298, 313; Dec. Dig. 154(2).]

3. MANDAMUS 3(4)
REMEDY.

An action at law on the building contract would not be adequate, since a judgment could not be enforced until some provision was made for its payment.

A defendant when placed upon trial for a particular offense is entitled to know the charge he is called upon to meet, and evidence of another crime will not support the allegations of the indictment. Of course, we are aware that there is a class of cases where the acts of a person charged with a particular crime may be susceptible of two constructions, one of guilt, and the other that of innocence. Acts of a similar charac-4. ter may be shown, but the charge in this case, conspiracy, is not of that character. We are of the opinion that the court erred in admitting this testimony.

Cent. Dig. §§ 10, 17, 20, 21, 23-31, 34; Dec.
[Ed. Note.-For other cases, see Mandamus,
Dig. 3(4).]

MANDAMUS 154(2) COMPLAINT - SALE
OF BONDS-AMOUNT DUE RELATOR.

In such action the complaint need not show the amount due relator has been ascertained by an officer properly authorized, since the action is not upon such an obligation to pay, but to If the testimony offered were similar compel the procuring of funds to pay if payment

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 297-298, 305; Dec. Dig. appellants. Barnard & Jeffrey, of New Cas154(2).] tle, M. O. Sullivan, of Shelbyville, and Omer 5. MANDAMUS 154(2)-COMPLAINT-WRIT- S. Jackson and Thomas E. Glascock, both of TEN INSTRUMENT-SUFFICIENCY OF COPY. Greenfield, for appellee.

7. STATUTES 22534-RE-ENACTMENT-PRIOR in which to file his brief. That action operatJUDICIAL CONSTRUCTION.

Appeal from Circuit Court, Henry Coun- chitect's estimates; that to secure the perty; Fred C. Gause, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

has the same more than half completed; I proved, and accepted, the pleading purports that the architect has certified that $23,000 to set out in Exhibit C thereto attached a has been earned on an 80 per cent. basis, copy of a surety company bond, comprising which estimate was submitted to the trustee many pages of printed matter, but apparentwith a demand for payment, but that the ly omitting the signature of the surety. This trustee refused the same because of lack of action, however, is not founded on the bond. funds; that the trustee has no funds with and the pretended copy of such instrument which to pay such claim or any part there- which was attached to the complaint as an of; that there is no way in which the trustee exhibit does not control or affect the pleadcan secure funds to meet the liability except ing. Aldrich v. Amiss, 178 Ind. 303, 99 N. E. by the sale of bonds heretofore authorized; 419, and authorities cited. It was unnecesthat the trustee has failed to offer bonds for sary here to set out a copy of the bond, and sale, after demand therefor by the relator, the averments of the complaint relative thereand has refused to offer for sale the author-to are sufficient. There was no error in overized issue; that the members of the advisory ruling the demurrer to the complaint. board declare that they will approve no sale of bonds, except pursuant to an order of court, and the trustee declares he will make no effort to sell the same without like order. Other allegations of the complaint show that in November, 1914, the present trustee and members of the advisory board were duly elected to succeed the persons theretofore holding such offices, and that the authorized indebtedness of $47,000 does not violate the constitutional limitation.

[6, 7] The answer alleges that the building in question is being constructed on the old site in district No. 13, and within 500 feet of a steam railroad, an interurban line, and a breeding barn for horses. At the time the contract was let and the building commenced the act of 1911, as amended in 1913, relative to schoolhouse sites, was in force. Section 6616a, Burns 1914. See, also, Acts 1915, p. 94. Clause (a) of section 1 of the act of 1911 provided that schoolhouse sites should not be [2] It is contended by appellants that the located nearer than 500 feet of steam railcomplaint is insufficient for failure to show roads and breeding barns for horses. In the that the site on which the building is being case of School Town of Andrews v. Heiney, erected is owned by the township (Koontz v. 178 Ind. 1, 8, 98 N. E. 628, 43 L. R. A. (N. S.) State ex rel., 44 Ind. 323), but we are of the 1023, Ann. Cas. 1915B, 1136, this court held opinion that it is fairly inferable from the that said clause (a) applied only to sites acpleading that the building is being construct-quired after its enactment, and did not proed on the old site, which belongs to the town-hibit the erection of school buildings on locaship. So considered, it is sufficient as against the objection urged.

tions acquired prior thereto. In 1913 clause (a) of the act of 1911, with some other matter added, was re-enacted. The re-enactment of a statute, after it has received judicial construction, is usually deemed to be a legislative adoption of such construction (State v. Ensley, 177 Ind. 483, 489, 97 N. E. 113, Ann. Cas. 1914D, 1306), and there is nothing in the act of 1913 which indicates a legislative purpose in conflict with the construction previously placed on the act of 1911. Appellants' contention therefore must fail.

[3, 4] It is also urged that, since an action for mandamus will not lie except in the absence of an adequate legal remedy, the complaint is bad because, as contended, the relator may secure adequate relief by a suit on the building contract. We cannot agree that the pleading is open to this objection. Assuming that a judgment might be recovered in an action at law, it is manifest that it in an action at law, it is manifest that it could not be enforced until some provision be made for its payment. Nor is the objection well taken that, because the amount due the out copies of the proceedings of the advisory [8, 9] The answer further assumes to set relator under the contract has not been as-out copies of the proceedings of the advisory certained by an officer properly authorized, he board of March 24, 1914, as shown by the is not entitled to relief in this action. State record thereof. The findings and action of ex rel. v. Snodgrass, 98 Ind. 546, 550. Coun- the board relative to the emergency for a new sel misconstrue the theory of the pleading. school building, and to the granting of auIt does not seek an order against the trustee thority for the issuance of bonds, are set out to pay a sum of money measured by the ar- in full, dated March 24, 1914, and signed by chitect's estimates, or any other sum, but all members of the board and the trustee. demands the performance of a ministerial This is followed by a record of the same date duty in procuring funds through an authoriz- relative to action by the board with reference ed loan. The trustee, of course, would not be to the purchase of a proposed new site (aftbound by the architect's estimates per se, erwards abandoned) for the building, which but by facts showing performance of the con- was also signed by each member of the board. tract, and the judgment appealed from in no Then follows the record of an adjourning orwise prejudices the trustee in defending the der of the same date, and signed by all the school corporation against an improper claim. members of the board, which recites that the special session is adjourned for "the time being only until the 2d day of April, 1914, at 10 o'clock a. m.," etc. The answer then al

[5] Finally, it is insisted that the complaint is defective because it shows that the relator's pond was not signed by any surety.

"That said proceedings, actions, and resolu- | answer to this contention is that the power of tions were not kept, entered nor written up on selecting sites and of determining the size said 24th day of March, 1914, nor at any time and cost of buildings is vested in the school since, in any book or record of the Advisory Board of said Township, as provided by law." officers, and not in the courts. (Italics ours.)

The contention is made that this allegation of the answer is sufficient to repel a demurrer because it shows a failure on the part of the members of the advisory board to sign the record of their proceedings before adjournment. State ex rel. v. Parish, 180 Ind. 63, 68, 99 N. E. 977. We cannot agree that the allegation is sufficient to require a consideration of the question which appellants seek to present. The proceedings relative to the new site are not material, but it is not clear whether the pleader intended the word "said" to designate the proceedings in reference to the authorized loan or not; ordinarily, where the word is used as one of reference, and there is a contention as to which of two or more antecedents it was intended to apply, it will be held to refer to the last. Carver v. Carver, 97 Ind. 497, 503; Hinrichsen v. Hinrichsen, 172 Ill. 462, 50 N. E. 135. However, conceding that it relates to all the proceedings recited, the quoted clause cannot be considered as an averment of an issuable fact, but merely as a statement of the pleader's conclusion, since the statement that the record was not signed on the 24th day of March is qualified by the clause "as is provided by law." On the face of the proceedings relative to the authorizing of the bond issue no irregularity appears, and no issuable fact is alleged which challenges its legality.

[10] The answer also contains certain averments which purport to show an alleged invalidity of the record of the advisory board relative to the letting of the construction contract. Without stating these averments in detail it is sufficient to say that the statute (section 9598, Burns 1914) requires the trustee, and not the members of the advisory board, to execute the contract. Conceding that the law requires the trustee to advise with the board and confers on the latter the negative power of rejecting any or all of the offered bids, it authorizes the trustee to determine what bid, not rejected by the board, he may accept. When so accepted, the written contract must be executed by the trustee and the bidder, and bond furnished to the approval of the former.

There was no error either in overruling the demurrer to the complaint or in sustaining the demurrer to the answer, and the judgment is therefore affirmed.

(185 Ind. 675) PRINCETON COAL CO. v. FETTINGER. (No. 22891.) (Supreme Court of Indiana. June 27, 1916.) 1. MASTER AND SERVANT 11 - MINER'S WASHROOM LAW-CONSTITUTIONALITY.

Miner's Washroom Law (Burns' Ann. St. 1914, § 8623) is constitutional.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 11.]

2. CoURTS 220(9) — APPELLATE JURISDICTION SUPREME COURT - CONSTRUCTION OF STATUTE.

Where the judgment from which an appeal is taken to the Supreme Court is less than $50, and originated before a justice of the peace, and cation of the law to the instant case, no quesit is sought to question the manner of the applition of the construction of a statute is involved. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 586; Dec. Dig. 220(9); Appeal and Error, Cent. Dig. § 3383.]

Appeal from Circuit Court, Pike County; John L. Bretz, Judge.

Action by Samuel H. Fettinger against the Princeton Coal Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Embree & Embree, of Princeton, for appellant. Oscar Lanphar, of Princeton, for appellee.

ERWIN, J. [1] This appeal presents but one question within the jurisdiction of this court to decide, viz., the constitutionality of the act of March 8, 1907, being chapter 121, Acts Gen. Assem. 1907, p. 193, and known as the "Miner's Washroom Law." Burns' 1914, § 8623.

The constitutionality of the act in question was considered by this court in the case of Booth v. State (1913) 179 Ind. 405, 100 N. E. 563, L. R. A. 1915B, 420, Ann. Cas. 1915D, 987, wherein this court held that it was not open to the infirmities claimed by appellants in this case. The case of Booth v. State, supra, was taken on writ of error to the Supreme Court of the United States, and upon review of the questions decided by this court the judgment of this court was affirmed. Booth v. State, 237 U. S. 391, 35 Sup. Ct. 617, 59 L. Ed. 1011. No other reasons why the law is invalid are urged in this case than were presented in Booth v. State, and we adhere to the ruling announced in that case.

[11] Finally, it is asserted that the site on which the building is being constructed is wet and unhealthful and difficult of access, being situate at the north edge of the township and four miles from the center thereof; that the building will be unnecessarily large and expensive, since there are only 136 children of school age in the district. The contention is made that these facts show such a gross abuse of discretion on the part of the [2] It is sought here to question the mantrustee and members of the advisory board ner of the application of the law of the inwho held office on March 24, 1914, that relief stant case; but, as the judgment from which should be denied the relator. A sufficient this appeal is taken is less than $50, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied, 114 N. E. 406.

Having disposed of the only question pre-bridge as is contemplated by the report. The sentable in this appeal adverse to appellant's contention, the judgment is affirmed.

Burns' Ann. St. 1914, § 7744, empowering 1914) provides for a report on thetownships constructing county line highways "cost of the construction of said road, includto build such bridges as the law authorizes them ing bridges such as townships are authorized by to erect, is not limited by section 7693, provid-law to build, culverts, drainage and all other ing for the county construction of bridges over things necessary for its completion." (Italics 20 feet long, for section 7693 applies only to ours.) bridge projects disconnected from a highway improvement scheme.