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(145 N.E.). The license fees so collected by the auditor | makes no difference in this action whether of state are to be paid over to the treasurer the act took effect on March 6, the day it of state, and all expenses and refunds are was approved, or not until some weeks later, to be paid out on warrants drawn by said when the Governor issued his proclamation. auditor. The remainder of the fees so col- | In either event it was in force on the 12th of lected are to be credited to the state high- July, when this action was begun. That the way fund, of which a designated amount is title is broader than the body of the act, reto be distributed to the counties of the state citing that the license fee is to be imposed as a special fund for the construction, main- | 'on the use of gasoline,” while the act imtenance, and repair of highways therein, poses a tax only on the use of gasoline for part by an equal division among them and propelling automobiles operated upon pube part in the proportion which the number of lic highways of this state, does not make the miles of free gravel or macadam or county act unconstitutional. Board v Scanlan, 178 unit roads in each county bears to the whole Ind. 142, 145, 98 N E. 801. number of miles of such roads in the state. [4] The mere fact that those dealing in Persons selling gasoline on which the license gasoline are required to make returns of fee has been paid or secured need not make the amount sold and to collect and pay the such returns nor collect fees from the pur- tax does not make the law conflict with the chasers. The auditor of state was author constitutional provision which forbids takized to employ necessary assistants and to ing a man's particular services without comprocure necessary blank forms and equip- pensation. Nobody is required to sell gasment, and $2,000 was appropriated for thatoline, nor to collect the tax, unless he chooses purpose to be repaid to the treasury from to make sales. But the state has power to fees when collected. An emergency was de regulate the business of selling gasoline, and clared, and that the act “shall be in full to levy a tax on all gasoline sold for use in force and effect from and after its passage." propelling automobiles upon the bighways of The last section provided that “this act, ex- this state, and imposing an incidental burcept section 9 (making the appropriation and den upon those who voluntarily engage in declaring an emergency, etc.), shall be in ef- the business of selling that article does not fect from and after the first day of June, make the statute invalid. Pierce Oil Corp. v. 1923." It is first objected that the license Hopkins, 264 U. S. 137, 44 S. Ct. 251, 68 L. fees thus required to be paid constitute a Ed. 593. tax on property, and come within the provi [5-7] The state has ample power to select sions of section 1, article 10, of the Constitu- the use of gasoline for propelling vehicles on tion of Indiana (section 193, Burns' 1914), the highways of this state as a subject of taxwhich commands that “the General Assembly ation from which to raise revenue for the shall provide, by law, for a uniform and construction, maintenance, and repair of equal rate of assessment and taxation.” In highways. The selection of subjects for taxthis counsel are mistaken. A tax on the use ation is a legislative power that is not reof property for certain purposes within this stricted by the Constitution so long as the state, or on the sale thereof within this state, law is made to operate without discriminais not a property tax. The owner may con- tion upon all within the taxing district. tinue to own his gasoline indefinitely with State Board v: Holliday, 150 Ind. 216, 219, out becoming liable for the tax, or he may 19 N. E. 14, 42 L R. A. 826; In re Opinion remove it from the state and sell or use it of Justices (N. H.) 120 A. 629. The power of anywhere else in the world without such lia- the Legislature in matters of taxation for bility. It is not the gasoline which is taxed, building, maintaining, and repairing highbut the use made of it within the state, and ways is unlimited, except as restricted by in imposing taxes of this character the leg- the state or federal Constitution. State ex islative power is untrammeled, except that rel. v. Board, 170 Ind. 595, 610, 85 N. E. invidious discrimination will not be permit. 513. ted. Kersey v. City of Terre Haute, 161 [8, 9] The mere fact that the fee or tax Ind. 471, 473, 68 N E. 1027; City of Terre must be paid for gasoline with which to opHaute v. Kersey, 159 Ind. 300, 311, 64 N. erate automobiles upon the highways of this E. 469, 95 Am. St. Rep. 298; Bowman v. state, while it need not be paid for operating Continental Oil Co., 256 U. S. 642,- 649, 41 vehicles by any other power, does not make S. Ct. 606, 65 L. Ed. 1139; Standard Oil Co. the law invalid. Kersey V. City of Terre V. Brodie, 153 Ark. 114, 239 S. W. 753 ; In Haute, 161 Ind. 471, 473, 68 N. E. 1027. Exre Opinion of Justices (Me.) 121 A. 902. act equality as between different subjects of

[3] It is next objected that the subject- taxation is not required, being impossible of matter of the act is not embraced by the ti- attainment if any tax at all is to be imposed. tle, but we think it is, so far, at least, as the Kersey v. City of Terre Haute, supra, p. 473 question is material in the case at bar. (68 N. E. 1027); Cooley, Taxation (4th Ed.) Those acts passed in 1923 which did not de- $ 259. clare an emergency had been duly published (10) And the classification of subjects of and circulated, and had taken effect long taxation so as to put automobiles propelled before this action was commenced, and it by the use of gasoline in a class by them.

selvus, being within the power of the Legis- 2. Master and servant en 403 Burden on .lature, its action with respect to such mat compensation olaimant to show that employee ters is not subject to control by the courts. was not engaged in interstate commerce. Baldwin v. State (Ind. Sup.) 141 N. E. 343. Burden is on applicant for compensation

[11] The legislative power to determine for death of railway employee to show that dewhich of many highways in the state shall ceased was not engaged in interstate commerce be improved with funds raised by taxation

at time of accident, in view of Burns' Ann.

St. Supp. 1921, § 8020c1. for that purpose is not limited by any provision of the Constitution, and the mere 3. Commerce Ow27(8)-Railway employee on fact that part of the money paid into the way to take train to repair cars carrying instate treasury by residents of St. Joseph

trastate and interstate commerce held en. county may or will be used to build roads in

gaged in winterstate oommerce." other counties does not make the act invalid.

Railway employee while on way from yards [12] It is complained that persons who to depot to take train to go to his work, conbuy gasoline in Indiana for the operation of sisting of repairing car carrying intrastate automobiles must pay the tax, although they merce, was engaged in interstate commerce un

commerce and car engaged in interstate commay drive at once to the state line and cross der Burns' Ann. St. Supp. 1921, & 8020c1. into another state. But the law does not re

(Ed. Note.-For other definitions, see Words quire such a person to purchase in Indiana and Phrases, First and Second Series, Intermore than sufficient gasoline to carry him to state Commerce.] the state line. If he prefers, he may reach

4. Evidence 588-Apparent conflict in testhat point with an empty tank and replen

timony should be reconciled. ish his supply in the other state without pay

Court or jury trying cause should, if there ing the Indiana tax.

is apparent conflict in testimony of any of wit(13, 14] There is no merit in the conten- nesses, make honest attempt to reconcile testion that the provision for rebate of money timony on theory that all are telling truth, paid for gasoline not used in operating mo- and no witness should be disbelieved because of tor cars requires money to be drawn from the mere caprice and without cause. state treasury otherwise than in pursuance 5. Master and servant 417(7)-Finding on of appropriations made by law. The terms

conflicting evidence in compensation case conof this statute sufficiently make the neces clusive on appeal. sary appropriation for payment of all lawful

Finding of Industrial Accident Board based claims for rebates. Carr v. State ex rel. Coet- on actual conflict in testimony must be suslosquet, 127 Ind. 204, 210, 26 N. E. 778, 11 L. tained on appeal, R. A. 370, 22 Am. St. Rep. 624; Henderson v.

Appeal from Industrial Board. Board, 129 Ind. 92, 100, 28 N. E. 127, 13 L. R. A. 169. The act does not violate the Proceeding by Etta B. Turpin under the Fourteenth Amendment to the Constitution Workmen's Compensation Act to obtain comof the United States. Pierce Oil Corporation pensation for the death of her husband, Robv. Hopkins, 264 U. S. 137, 44 S. Ct. 251, 68 ert L. Turpin, opposed by the Chicago, MilL. Ed. 593; Bowman v. Continental Oil Co., waukee & St. Paul Railway Company, the 256 U. S. 642, 649, 41 S. Ct. 606, 608, 65 L. employer.

There was an award of compen. Ed. 1139.

sation, and the employer appeals. Award reThe complaint clearly failed to state facts versed. sufficient to constitute a cause of action, and no error was committed in sustaining the Bluhm, of Chicago, 111., for appellant.

Clark & Brooks, of Bedford, and M. L. demurrer to it. The judgment is affirmed.

R. L. Mellen and Boruff & Boruff, all of

Bedford, for appellee. WILLOUGHBY, J., absent.

MCMAHAN, J. On and prior to July 23, 1923, Robert L. Turpin was in the employ of appellant. He received an injury on said

day by an accident arising out of and in the CHICAGO, M. & ST. P. RY. CO. v. TURPIN. course of his employment, and died as a re (No. 11963.)

sult of such injury. Appellee being his wife

and wholly dependent upon him for support (Appellate Court of Indiana, Division No. 2. filed her application for compensation. From Oct. 16, 1924.)

an award granting compensation, appellant

appeals, and by proper assignment challeng. 1. Master and servant 405(1) Evidence held not to sustain finding railway employee es the award on the ground that it is not not engaged in interstate commerce.

sustained by sufficient evidence, Evidence held not such as to sustain finding

[1] The only fact necessary to sustain the of Industrial Accident Board that deceased award and not agreed on related to the railway employee was not engaged in interstate question as to whether or not the employé at commerce at time of injury resulting in death, the time of his injury was engaged in interunder Burns' Ann. St. Supp. 1921, § 8020cl. state commerce. The board found he was

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

commerce

(145 N.E.) not engaged in interstate commerce. The "The mere fact that a person is employed by only points raised and discussed by the par a railroad company in interstate ties relate to the correctness of this finding. does not, of itself, take such employee out from If there is any evidence to sustain this find- under the provisions of the Indiana Workmen's ing, the award must be affirmed.

Compensation Act." On the morning of July 23, 1923, appel

This statement loses its force when it is lant's assistant car foreman gave Mr. Turpin remembered that the statute excepts from its an order received from the car foreman to

provisions employees of railroads engaged repair a certain car which had been set out in interstate commerce and such railroads at Cale, because of broken brass. This car from its provisions, and that the burden is was loaded with coal and was being used in on the employee in order to be entitled to an intrastate commerce. After receiving this or award of compensation to bring himself withder, Mr. Turpin, while on his way to appel- in the provisions of the act. In other words, lant's depot to take a train to Cale, was

the mere fact that an employee of a railroad struck by a train on the Monon Railroad and is injured by reason of an accident growing killed. On the night of July 20th, a telegram out of and in the course of his employment was received by appellant's agent at Bed is not sufficient to authorize an award of ford, notifying him that a certain car at Williams was in need of repair. This telegram go further and prove that at the time of his

compensation. The injured employee must was given to Mr. Cooper, a repairman, on injury he was not engaged in interstate comthe morning of July 21st, with directions to

merce. Philadelphia, etc., R. Co. v. Polk, sugo to Williams that day and repair this car, pra; Scanlon v. Payne, Director General, 271 which was then in use in interstate com

Pa. 391, 114 Atl. 493; Carberry v. Delaware, merce and which had been interrupted in an etc., R. Co., 93 N. J. Law, 414, 108 Atl. 364. interstate haul to be repaired and then to go See, also, Pioneer Coal Co. v. Hardesty, 77 on. It being Saturday, the repairman quit Ind. App. 205, 133 N. E. 398. work at noon. Mr. Cooper was therefore ordered to postpone the work until Monday, without conflict shows that when Mr. Turpin

[3] Appellant contends that the evidence July 23d, and did so. When Mr. Cooper re

was killed he was on his way from the yards turned to work Monday morning, knowing that Mr. Turpin was to do the repair work of appellant to the depot where he was to

take a train to go to his work, which was re that day, he told Mr. Turpin about having

pairing a car at Cale carrying intrastate received the orders to repair this car at Williams and also told him that on account of commerce, and that on his return he was changing his clothing Sunday he had lost the also intending, as he had been directed to do, telegram or order and did not have it with to repair another car at Williams which was him.

engaged in interstate commerce. His going Section 19 of the Indiana Workmen's Com- to the depot was a necessary part of the pensation Act (Acts 1915, p. 392 ; section work he was to do that day. It was no more 8020c1, Burns' Supp. 1921) provides as fol- necessary and applicable to the repair of the

car at Cale than it was to the repair of the lows:

car at Williams. If as a matter of fact he "This act except section 67 shall not apply was on his way to the depot to take a train to employees engaged in interstate or foreign to take him to Cale, and if it was a part of commerce, nor to their employers, in case the the work he was to perform before returning laws of the United States provide for compensation or for liability for injury or death by that he should stop at Williams and repair accident of such employees."

the car at that place, he was undoubtedly at

the time of his injury engaged in interstate Section 1 of the federal Employers' Liabil-commerce. Erie R. Co. v. Winfield, 244 U. S. ity Act (34 Stat. at Large, 232, chap. 3073) 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas: provides that every common carrier by rail- 1918B, 662; Hinson v. Atlanta, etc., R. Co., road while engaged in interstate commerce 172 N. C. 646, 90 S. E. 772; Lopez v. Hines, shall be liable in damages to any employee Director General (Mo. Sup.) 254 S. W. 37; who is injured while engaged in interstate Atlantic, etc., R. Co. v. Williams (C. C. A.) commerce.

284 Fed. 262; Matthison v. Payne, Director The Supreme Court of the United States, General (N. J. Sup.) 118 Atl. 771. in Philadelphia, etc., R. Co. v. Polk, 256 U. S.

[4, 5] Assuming, without deciding, that the 332, 41 Sup. Ct. 518, 65 L. Ed. 958, said:

statement in the finding of the Board that

the deceased at the time of his injury was If there be an assertion of the not engaged in interstate commerce is the claim or remedy growing out of an occurrence in which there are constitutents of interstate statement of a fact and not a conclusion of commerce, the burden of explanation and law, we proceed to an analysis of the evidence avoidance is on him who asserts the claim or bearing on this question. It is a well-settled remedy, not on the railway company to which rule that a court or jury trying a cause it is directed,

should, if there is an apparent conflict in the

testimony of any of the witnesses, make an [2] Appellee in discussing this question honest attempt to reconcile the testimony of says:

the witnesses upon the theory that all of

them are telling the truth, and that no wit-, way to repair both cars. We therefore hold ness shall be disbelieved because of mere ca- that the uncontradicted evidence shows that price and without cause. We have used the the deceased employee was engaged in interexpression “apparent conflict,” because if state commerce when injured. there is any conflict in the evidence in the The result of this holding is that the award instant case, it is an apparent conflict and is contrary to law and must be reversed. not a real conflict. If there were an actual conflict in the evidence, it would be our duty to sustain the finding of the board upon the theory that it was in a better position to

BRINK v. WARNER. (Noa 11919.) judge of the weight to be given to the testimony of the several witnesses than we are. (Appellate Court of Indiana, Division No. 1. But in our judgment there is no conflict in

Nov. 7, 1924.) the testimony of any of the witnesses. The Frauds, statute of Cm 61-Title to timber cut by witnesses stand unimpeached and their tes

vendee under unrevoked parol contract of timony uncontradicted.

sale vests in vendee as chattels. The testimony of the several witnesses as

Parol contract of sale of growing timber, to the receipt of the telegram asking that though within statute, is a license to vendee to the two cars be repaired, that the telegram enter and sever it, and if he does so before rerrelating to the repair of the car at Williams ocation by vendor, title to timber vests in renhad been given on Saturday to an employee dee as chattels. other than Mr. Turpin, that the telegram relative to the car at Cale was given to Mr.

Appeal from Circuit Court, La Porte CounTurpin on Monday, that he was also told ty; John C. Richter, Judge. about the car at Williams and was directed Action by Preston E. Warner against Ed. to repair both of them, that he was told to ward L. Brink. From a judgment for plaingo to Cale and repair that car first and to tiff, defendant appeals. Affirmed. stop at Williams on his way back and repair

Darrow, Rowley & Shields, of La Porte, the car at that place, that he had gotten the for appellant. material to repair both of these cars and

H. W. Worden, of La Porte, for appellee. was on his way to the depot to take the train to do the work he had been directed to do,

REMY, J. Action by appellee against apwhen he was struck by a train on the Mon- pellant for conversion. Material averments on Railroad and killed, and that the car at of the complaint are, in substance, that apWilliams was being used in interstate com- pellant sold to appellee certain growing timmerce, is uncontradicted,

ber at and for an agreed price; that purThe message asking that the car at Cale suant to the agreement, which was in parol, be repaired was found on the person of appellee at his own expense cut the timber Mr. Turpin after his death by the undertak- from the land and into logs, hauled the logs er, and with other papers and effects so to a public highway, and was ready and found was turned over to appellee, who tes- willing to pay therefor, in accordance with tified that three or four weeks later she had the terms of the contract, but appellant, a conversation with Mr. Potts, in which she notwithstanding his previous sale to appelasked him if he had an order to repair the lee, and without appellee's consent, wrongcar at Cale and if he gave that order to Mr. fully sold and delivered the logs to a third Robbins, and that Mr. Potts said he did. She party, to appellee's damage in the sum of also testified that Mr. Robbins said, in re- $148, for which sum judgment is prayed. sponse to a question, that he gave this order

It appears from the record that on the to Mr. Turpin. Her brother and two brothers- trial of the cause, which resulted in a verin-law also testified to conversation with Mr. dict and judgment for appellee, there was evi. Potts and Mr. Robbins in which they said dence int duced which tended to prove all the Mr. Turpin had been ordered to or was on material averments of the complaint. That his way to Cale to repair a car. This testi- the parol contract for the sale of the grow. mony is not disputed. Accepting it, there ing timber was within the statute of frauds fore, as being true, we fail to discover any and unenforceable is not controverted. conflict between it and the evidence that he Though presented in various ways, the one had also been instructed to stop at Williams question involved in this appeal is whether, on his return and repair the car at that by the severance of the timber as averred place, and that when killed he was on his in the complaint and proved on the trial, way to the depot to take the train for the the oral contract became effective so as to purpose of doing that which he had been in- pass the title of the timber to appellee. If structed to do. There is no evidence that so, the judgment must be affirmed, otherMr. Turpin was not also going to repair the wise reversed. car at Williams on his way back from Cale. The question is not new. The law is well In fact, as we view the record, the uncontra- established that a parol agreement for the dicted evidence shows that he was on his sale of growing trees, though unenforceable

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

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(146 N. E.) under the statute of frauds, is valid as a PER CURIAM. This is an error proceed. Hicense to enter upon the land and cut the ing brought to this court from the Court of timber, and, if under such agreeement the Appeals of Cuyahoga county, these cases havtrees are severed from the land before the ing originated in the court of common pleas license is revoked, the contract of sale then of that county as suits to recover moneys attaches to the timber as chattels, and the alleged to have been illegally paid to the title to the timber so cut vests in the vendee. judges of the court of common pleas of that Owens v. Lewis (1874) 46 Ind. 488, 15 Am. county. The legal questions involved grow Rep. 295; Cool v. Peters Box & Lumber Co. out of the following facts and circumstances : (1882) 87 Ind. 531; Spalding v. Archibald On February 4, 1920 (108 0. L. pt. 2, 1301), (1883) 52 Mich. 365, 17 N. W. 940, 50 Am. the Ohio Legislature passed an act to amend Rep. 253; Bruley v. Garvin (1900) 105 Wis. section 2252, General Code, to increase the 625, 81 N. W. 1038, 48 L. R. A. 839. See, also, salaries of common pleas judges of the Whicker v. Wallace (1923, Ind. App.) 140 N. state. Certain judges holding office at and E. 919.

prior to the passage of that amendment It follows that since appellee, pursuant to claimed the benefit of its provisions, and, the contract which had not been revoked by on June 1, 1920, when the law went into appellant, had entered upon the land, sev- effect, demanded that the county auditor ered the trees and cut them into sawlogs, pay to them the amount of the increase. The the logs became the property of appellee, auditor declined, because of the provisions and the sale thereof by appellant was a of section 14, art. 4, of the Constitution, the wrongful conversion.

pertinent provisions of which are as folAtfirmed.

lows:
"The judges

of the court of common pleas shall, at stated times, receive for their services, such compensation as may be

provided by law, which shall not be diminished, BAER V. STATE ex rel. STANTON, Pros.

or increased, during their term of office. Atty., and seven other cases. (Nos. 18483–18490.)

Thereupon actions in mandamus (Supreme Court of Ohio. Oct. 28, 1924.)

brought in the common pleas court of that (Syllabus by Editorial Staff.)

county to compel such payment, and upon Judgment 592—Adjudication requiring pay. hearing the court awarded the writ of man

ment of increased judges' salaries conclu- damus, and, according to the allegations of sive against recovery of succeeding payments. the pleadings ' in the instant cases, "the

Where county auditor submitted question court entered judgment granting said writ whether common pleas judges holding office at and found that the said plaintiffs in said passage of 108 Ohio Laws, p. 1301, amending action

were entitled to the inGen. Code, 88 2251, 2252, were entitled to

crease in said salary from the said county payment of increased salaries, to test of litiga- of Cuyahoga as provided for in said section in mandamus, he was not required to sub- tions 2251 and 2252 as amended.” Neither ject each succeeding payment to same test and judgment requiring payment wag conclusive as

error nor appeal was prosecuted from that to legality of succeeding payments made by him. judgment, and upon the same becoming fi

nal by limitation the county auditor paid Conn, J., dissenting.

the salaries from and after May 20, 1920,

On the Error to Court of Appeals, Cuyahoga to and including April 16, 1921. County.

latter date the prosecuting attorney, believ

ing that the former judgment in mandamus Separate actions by the State, on the re

was erroneous, commenced an action to enlation of Edward C. Stanton, Prosecuting At- join further payments, but did not in the torney, against George P. Baer, against Man- same action seek to recover any of the payuel Levine, against Thomas H. Kennedy, ments already made. The injunction suit against Samuel E. Kramer, against Homer G.

ran the gauntlet of all the courts, and was Powell

, against Dan B. Cull, against A. J. finally heard in this court, where the injuncPearson, and against Frank C. Phillips. tion was sustained. Thereafter the prosecutJudgments for defendants were reversed by ing attorney brought another action to rethe Court of Appeals, and defendants brought cover all payments except the payment of error on allowance of motions to certify rec- June 1, 1920, and upon all these matters beords. Reversed, and judgment of court of ing set up in answers filed by the respective common pleas affirmed.—[By Editorial Staff.] judges demurrers to the answers were over

W. H. Boyd and T. H. Hogsett, both of ruled. Upon appeal to the Court of Appeals Cleveland, for plaintiffs in error.

the demurrers were sustained. Thereupon Edward C. Stanton, Pros. Atty., and Ed- error was prosecuted to this court upon alward J. Thobaben, Asst. Pros. Atty., both of lowance of motions to certify the records. Cleveland, for defendant in error.

It should be stated at the outset that

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