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ROBY, C. J. This is the second appeal. A receivable. Haughton v. Etna Life Ins. Co. judgment for appellee was heretofore re (Ind. Sup.) 73 N. E. 592. versed because of the insufficiency of the first The judgment is reversed as of the date paragraph of complaint. The objection of submission, and the cause remanded, with urged was that it “failed to aver a compli- instructions to sustain appellant's demurrer ance with all the conditions imposed upon to the first paragraph of amended complaint the insured and the beneficiary by the con and for further consistent proceedings. tract." It was then said by the court that there must be “either a detailed allegation

(39 Ind. App. 133) of performance of every condition or a general allegation of the performance of all con BOARD OF COM'RS OF JACKSON COUNditions." Grand Lodge, etc., v. Hall, 31 Ind.

TY V. BRANAMAN. (No. 5,610.) 1 App. 107, 67.N. E. 272. When the cause was (Appellate Court of Indiana, Division No. 2. returned to the trial court, an amended com

Feb. 20, 1906.) plaint in two paragraphs was filed; the aver 1. COUNTIES — ACTION AGAINST – BOABD OP ment contained in the first paragraph thereof,


COUNTY FUNDS. relative to performance, being in terms as

Under Burns' Ann. St. 1901, 8 7820, makfollows: "Immediately after the death of | ing the board of commissioners of a county a said William H. Hall, plaintiff furnished de

body corporate and politic, and providing that

as such and in such name it may prosecute fendant with proof of death of saíd William

and defend suits, etc., it was proper for a board A. Hall, and plaintiff bas performed all of of commissioners, sued in its corporate capacity the conditions of said policy on her part to on a contract between the board and one conbe performed." Under the constitution and

structing a road, to use the funds of the county

in defending the action. by-laws of the association It was incumbent

2. SAME — PLEADING – COMPLAINT — SUFFI. upon the deceased member to keep up his

CIENCY. membership. The beneficiary had only a con Acts 1895, p. 43, c. 21, § 5, provides that tingent interest prior to the death of the a board of county commissioners shall not make member. Carter V. Carter (Ind. App.) 72

full payment upon a contract for the construc

tion of a road until the road shall have been N. E. 187; Bunyan v. Reed et al. (Ind. App.) received as completed. Held that, in an action 70 N. E. 1002. The appellant, in order to by a contractor for a public road to recover a

balance due him, the complaint was insufficient make a prima facie case, was required to

for failing to state that the board of commis plead performance by the assured. Grand

sioners had received the road. Lodge, etc., v. Hall, supra ; Supreme Lodge, etc., V. Knight, 117 Ind. 489, 491, 20 N. E.

Appeal from Circuit Court, Jackson COUD479, 3 L. R. A. 409. The allegation made

ty: Thos. B. Buskirk, Judge. is that the plaintiff has furnished proofs of

Action by Abraham B. Branaman against death, and performed all of the conditions

the board of commissioners of Jackson "on her part to be performed." Prior to

county. From a decree in favor of comdeath of the member no condition on her | plainant, defendant appeals. Reversed. part to be performed existed. It is undoubt 1 D. A. Kocbenour, for appellant. A. N. edly true that an allegation of performance Mundeu, for appellee. by one upon whom a duty rests may be supported by proof of acts done by others for WILEY, J. Suit in equity to enjoin ap him. Had it been averred that the insured

pellants from using public funds belonging performed the conditions upon his part to to the county in the defense of an action be performed, proof of payment of assess pending against the board of commissioners ments by the appellant would therefore have in which appellee was the sole plaintiff and been admissible; but no such averment is appellant board the sole defendant. Apmade either in form or in substance. The pellee bad brought an action against the demurrer to the first paragraph of amended board of commissioners of Jackson county complaint ought therefore to have been sus

on a written contract under which be undertained.

took to construct certain free gravel roads In view of the necessity for a new trial, in one of the townships of said county unin which the same questions will arise, it is der an act approved March 3, 1893, and the not inappropriate to say that, while logically amendatory act thereto, approved March 7, there may be some distinction between the 1895. By that action be sought to recover admission of statements by the member of a balance claimed to be due him upon said a benevolent association as against his bene contract. The cause was venued to the Law. ficiary, in an action of this nature, and state rence circuit court, where it was put at isments of a similar character by the insured, sue, and had been assigned for trial. A under an ordinary life policy the holding of temporary restraining order was issued In the Supreme Court that the same rule ob the cause at bar. A motion was subsequenttains, made after due consideration, is bind ly made to dissolve it, and this motion was ing upon this court Supreme Lodge Knights overruled. Upon final hearing the injune of Pythias, etc., V. Schmidt, et al., 98 Ind. tion was made perpetual. By the assign374. Viewed in a broad way, there is no ment of errors five questions are presented. reason why a distinction ought to be made, but from the view of the law we have taken Conditions may exist under which they are it is only necessary for us to consider the

1 Rehearing denied, 78 N. E. 356. See 79 N, E. 923. Rebearing denied. Superseded by opinion, 8 X E. 65.

error predicated upon the action of the court | joint and several, and the ground thereof in overruling the demurrer to the complaint. was that it did not state facts sufficient to

The complaint avers that the appellee is a constitute à cause of action. The question resident citizen of Jackson county, residing raised by the demurrer is both anomalous in Owen township, and that he is a taxpay. | and unique. That question, broadly stated, er in said county; that in September, 1898, is: Can a board of county commissioners, he entered into a contract with appellants in an action where it is the sole defendant, to construct certain free gravel roads in said be enjoined from expending any of the public township and county for and in considera | funds of the county in making their defense tion of $15,690; that appellants proceeded therein? The answer to this, in our judgment, according to law to issue and sell bonds to both in law and reason, must be in the negathe amount of $15,700, for the purpose of tive. Appellee chose his own forum, elected raising funds for the construction of said his own remedy, and selected his adversaries. roads and the payment of said contract He went into a court of law asking legal reprice; that said proceedings were had under lief. He now comes into a court of equity the act approved March 3, 1893, and the acts and asks equitable relief to prevent his adamendatory thereto; that after having com versaries from using the public funds in pleted said roads according to the terms of making their defense. These 'two positions his contract he filed his claim before the assumed by appellee are inconsistent, and board of commissioners for $5,377.53, that cannot receive the approbation of the courts. being the amount due him under his con By virtue of the statute the board of comtract, which said claim was wholly disal missioners of each county in the state is "a lowed; that thereafter he filed his suit in body corporate and politic," and as such and the Jackson circuit court against said board in such name "may prosecute and defend to recover the sum of $7,000, the amount due suits, and have all other duties, rights and him on said contract; that said suit is now powers incident to corporations," etc. Secpending in the Lawrence circuit court, and tion 7820, Burns' Ann, St. 1901. In this case is set for trial May 26, 1904; that said board the board of commissioners is sued in its is made party defendant, as the enforced corporate capacity, and it could only defend agent of said Owen township, and as the and answer in the same capacity. Bd. of custodian of said bonds, and in no other Com’rs v. State ex rel., 65 Ind. 176. Having capacity whatever; that said suit does not been sued in its corporate capacity, the inseek to recover a judgment against any dividual members thereof could not in their fund or money belonging to said county, but individual capacity make defense, nor should seeks to recover judgment against said fund they be required to do so at their own exderived from sale of bonds as the money of pense. To hold that a board of county comsaid Owen township as a taxing district, and missioners, when sued in its corporate ca. to have the same applied toward the pay pacity, could be enjoined from using the ment of the costs of said roads. The com public funds in making its defense, would plaint then concludes as follows: "That de establish a precedent which would put the fendant is about to expend unlawfully large several boards of commissioners throughout sums of money belonging to Jackson county the state at the mercy of unwarranted legal for lawyer fees and mileage and fees for attacks upon them. In an action of the witnesses in defending said suit, and will so character pending in the Lawrence circuit expend large sums of money of said county court when this suit was commenced, inunless restrained from so doing without de volving the rights of those whose lands lay and before notice of the hearing of this were assessed for the payment of the costs application can be given as required by law, of the construction of the roads, it was and plaintiff avers that defendant Asbury a duty incumbent upon the board of commisH. Manuel is the duly elected and acting au sioners to defend that action, as the enditor of said county. Wherefore plaintiff, forced agent of such taxpayers, to the end as a taxpayer of said county, asks that an that their rights might be protected. order be granted restraining defendant from Recurring to the complaint before us, we expending any of the money belonging to find it insufficient to warrant the relief asksaid county of Jackson in defending said suit ed. Appellee therein avers that he entered until notice of the hearing of this applica into a contract with the board for a specified tion can be given, and that upon such hear consideration to complete the roads that had ing a temporary injunction be granted until been petitioned for, that to raise funds for the final hearing, and that upon the final the payment of the contract price bonds hearing the defendant be perpetually enjoin, were sold, that he completed the work reed from expending any of the money be quired of him by the contract, that paylonging to said Jackson county, in defend ments were made to bim from time to time ing said trust fund or said taxing district, as the work progressed, that there was still and plaintiff asks all other proper relief.” due him $7,000, that a suit was pending in

This suit was commenced May 18, 1904, the Lawrence circuit court against the board being six days before the case then pending to recover a judgment against the fund dein the Lawrence circuit court was set for rived from the sale of the bonds, and that trial The demurrer to the complaint was in the defense of that action the board was about to expend unlawfully large sums of The complaint now under consideration money in making a defense to said action. not having stated a cause of action, the de This is the sum and substance of the com murrer to it should have been sustained, and plaint. Section 5 of the amendatory act of for the error in overruling it the judgment 1895 (Act 1895, p. 43, c. 21) provides the | is reversed, the cause remanded, and the manner in which the board of commission trial court directed to sustain the demurrer ers shall order the fund realized from the to the complaint. sale of bonds paid upon the contract, in this, to wit: that the board shall order the

(184 X. Y. 126) same paid in such amounts and at such

PEOPLE ex rel. HILL V. HIESTERBERG, times as they may agree, but no payment

Sheriff. shall be made by the commissioners for

PEOPLE ex rel. SILZ V. SAME. more than 80 per cent. of the engineer's estimate of the work done by the contractor,

(Court of Appeals of New York. Feb. 27, 1906.)

1. CONSTITUTIONAL LAW - DUE PROCESS OF nor shall the whole amount of the contract

LAW-GAME LAWS. be paid until the road shall have been re Laws 1900, p. 22, c. 20, as amended by ceived as completed, by the board of com Laws 1902, p. 487, c. 194, Laws 1902, p. 879, missioners. As far as the complaint goes

c. 317, and Laws 1904, p. 1413, c. 588, prohibitis to allege that "after having completed

ing the possession of game coming from without

the state during the close season, is not ussaid roads, as required by the terms of constitutional as depriving a person of property said contract, plaintiff filed his claim against without due process of law. said board,” etc. No attempt is made to

[Ed. Note.For cases in point, see vol. 10, aver that the board had received the roads

Cent. Dig. Constitutional Law, $ 823.) as completed, and this is absolutely essen


OF GAME. tial to the contractor's right to receive final Act Cong. May 25, 1900, c. 553, 31 Stat. payment. While the board of commission 187 (U. S. Comp. St. 1901, p. 290], providing ers act as the enforced agent of the prop that all dead game, whether animals or birds, erty owners within the taxing district, it is

importation of which is prohibited, or any dead

game carried into a state or territory for use, the duty of such board to act within the

sale, or storage there, shall on its arrival be subpower and authority given it by statute. ject to the operation of the laws of such state It is only when the board acts within its

enacted in the exercise of the police powers, to

the same extent as if such game had been prostatutory power that its acts will be re

duced in such state, and shall not be exempt garded as legal. Acting, therefore, within therefrom by reason of being introduced there. its statutory power as such enforced agent,

in in original packages, confers on any state

the right to enact laws probibiting the possesit was obligatory upon the board to refuse

sion of dead game within certain periods whethto authorize a final payment to appellee up er taken within or without the state. on his contract until the roads had been re 3. SAME-WARRANT-SUFFICIENCY. ceived as completed; and in this regard the

Where a warrant for the arrest of defend

ant for violating the game laws was based on an failure of the complaint to allege such fact

affidavit that he had in his possession within is fatal to the complaint.

the prohibited time certain dead game birds, But the complaint is insufficient for an

namely, an imported golden plover and an im

ported grouse, the further statement that such other reason. The board of commissioners

birds are different varieties of game birds from having been sued in its corporate capacity the game birds known as plover and grouse in in the original action, it not only had a. the state of New York, and from any birds

native to America, cannot be urged as a defense, right, but it was its duty, to defend that

as such statement means, not that the bird was action in the interest of those whose prop not a grouse, but that it was a different variety erty was assessed for the construction of from that native to the state of New York. the roads, and thus protect their rights. Appeal from Supreme Court, Appellate Public officers are presumed to perform Division, Second Department, their duties according to law, and, this being Application by the people on the relation of true, we may reasonably assume that the John Hill for a writ of habeas corpus to board of commissioners believed that there Henry Hesterberg, and by the people on the existed a valid excuse for not paying to relation of August Silz for a writ of habeas appellee the balance of the contract price corpus against the same defendant. From upon his demand. This being true, when an order of the Appellate Division in each suit was brought it was the duty of the case (96 N. Y. Supp. 286, 109 App. Div. 295, board to defend the action, if in fact there 96 Y. Y. Supp. 296, 109 App. Div. 917), re was any valid defense, and for that pur versing an order of the Special Term, quashpose it had the right to expend any availa- | ing the writ and directing that relators be ble funds in the county treasury. Whether discharged, defendant appeals. Reversed. subsequently the board would be authorized Julius M. Mayer, Atty. Gen. (Alexander to levy an additional assessment against the T. Mason, of counsel), for appellant. taxable real estate within the taxing dis F. Clarke, Dist. Atty. (Robert H. Elder, of trict to reimburse the county for any funds counsel), for appellant. Edward Louterbach, used out of the county treasury in making Edward R. Finch, and John B. Coleman, for Its defense is not presented, and as to that respondent Silz, John L. Hill, for respondwe express no opinon,

ent Hill.

CULLEN, O. J. The relators were arrest | which the validity of a statute of that state ed on warrants charging them with a viola was upheld, not only on the ground that the tion of the game law. They sought dis original ownership of wild game is in the charge from their arrest by writs of babeas state, but on the further ground that the corpus. On the return of those writs they preservation of such game is a valid exerwere remanded to custody. On appeal to the cise of the police power of the state. To the Appellate Division the orders of the Special argument that the exclusion of foreign game Term were reversed, and the relators dis in no way tends to the preservation of charged from custody. From those orders domestic game, it is sufficient to say that subthese appeals are taken. As the affidavits stantially the uniform belief of Legislatures on which the warrants for the arrest of the and people is to the contrary, and that both relators were issued differ materially in in England and many of the states in this their statements of facts, we will first con- country legislation prohibiting the possession sider the one made in the Hill Case. The of foreign game during the close season has affidavit avers that on the 3d day of March been upheld as being necessary to the protecsaid John Hill did have in his possession in tion of domestic game, on the ground that the Clarendon Hotel, in the borough of without such inbibition or restriction any Brooklyn, one dead body of a bird known as law for the protection of domestic game could a golden plover, and one dead body of a fowl | be successfully evaded. Whitehead v. Smithcommonly called a grouse; that, as the affi ers, L. R. [2 C. P. Div.] 553; Ex parte Maier, ant was informed and believed, the said 103 Cal. 476, 37 Pac. 402, 42 Am. St. Rep. 129; plover and grouse were taken without the Magner v. People, 97 Ill. 320; Missouri v. state of New York, to wit, from England and Randolph, 1 Mo. App. 15; Stevens v. State, Russia, and thence brought into the borough 89 Md. 669, 43 Atl. 929; Roth v. State, 51 of Brooklyn. The forest, fish and game law Ohio St. 209, 37 N. E. 259, 46 Am. St. Rep. (chapter 20, p. 22, Laws 1900, amended chap 1 566; Commonwealth v. Savage, 155 Mass. ters 194 and 317, pp. 487, 879, Laws 1902; 278, 29 N. E. 468. The case of Phelps v. chapter 588, p. 1413, Laws 1904), by sections Racey, supra, has never been overruled by 106 and 108, enacts that grouse shall not be this court. taken or possessed from January 1st to In the opinion delivered in People v. Buffalo October 31st, nor plover from January 1st | Fish Company, 164 N. Y. 93, 58 N. E. 34, to July 15th. By section 140 of said act 52 L. R. A. 803, 79 Am. St. Rep. 622, Judge grouse is defined to include ruffed grouse, O'Brien took two positions: First, that the partridge and every member of the grouse exclusion of fish taken without the state was family. By section 141 the inhibitions enact invalid as interfering with the power of Coned by the other sections of the statute are gress to regulate foreign and interstate commade to apply to fish, game or flesh coming merce; and, second, that under a proper confrom without the state, as well as to that struction of the game law as it then stood, taken within the state. By section 119 any the statute was applicable only to fish taken one violating the provisions of the statute within the state. It was this second ground hereinbefore recited is guilty of a misdemean alone which received the assent of the maor and liable to a fine of $25 for each bird jority of judges, and on which the decision taken or possessed in violation thereof. The in the case proceeded. This ground has been relator was in possession of the birds during removed by the amendment of the statute the prohibited period, and, hence, was guilty already cited, which makes it applicable to of a misdemeanor, unless he is relieved from game taken without the state. People v. the penalties prescribed by the statute by Bootman, supra, reaffirmed the doctrine of the fact that the birds were imported from Phelps v. Racey, and the validity of the foreign countries. We shall not discuss at legislation before us, at least so far as the any length the claim of the relator that the Constitution of this state is involved. In statute contravenes the Constitution of this that case, while we affirmed the decision state as depriving the relator of his property below because the offenses for which the without due process of law. That question defendant was prosecuted were committed has been settled adversely to that claim by before the amendment to the statute, we the decisions of this court in Phelps v. Racey, | felt called upon to express our opinion on 60 N. Y. 10, 19 Am. Rep. 140, and People v. the whole subject, so that the citizen might Bootman, 180 N. Y. 1, 72 N. E. 505, in which not be misled by the opinion rendered in it was held within the power of the Legisla the court below, and thus unwittingly subture, in order to effect the preservation of ject himself to severe penalties. If as is game within the state, to enact not only a claimed the views then expressed by the close season during which the possession of court on the subject now before us were such game should be unlawful, but also to obiter, and not necessary to the decision enact that the possession in the state during made, it is sufficient to say that we adhere such season of game taken without the state to them, not on the ground of stare decisis, should be equally unlawful. The Phelps but because they command our approval. Case is cited by the Supreme Court of the Therefore, if the act of Congress, passed United States in Geer v. Connecticut 161 U. | May 25, 1900, c. 553, 31 Stat. 187 [U. S. S. 519, 16 Sup. Ct. 600, 40 L. Ed. 793, in ! Comp. St. 1901, p. 290), commonly termed the "Lacey Act," empowered the state to tries. If the title of an act could limit its enact the legislation before us, it is unneces- effect, which it cannot (Potter's Dwarris on sary for us to enter into any examination of Statutes, p. 102), still this claim is without the question of interference with foreign foundation. The first two sections of the act and interstate commerce, discussed, but not deal with the department of agriculture, and decided, in People v. Buffalo Fish Company. | the reference thereto in the title is appropri

That Congress can authorize an exercise ate. The third and fourth sections deal with of the police power by a state, which, without interstate transportation of game killed in such authority, would be an unconstitutional violation of local laws, and the reference in interference with commerce, has been ex- | the title "prohibit the transportation by interpressly decided by the Supreme Court of state commerce of game killed in violation of the United States in Matter of Rahrer, 140 local laws" is equally appropriate. The fifth U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572. section, which is the one before us, deals The question before us is merely the interpre- with an entirely different matter, transportatation of the Lacey act, which the learned tion into a state, not out of a state, and is counsel for the respondents contend applies embraced in the title of the statute only solely to interstate shipments, and not to im- under the designation "and for other purportations from foreign countries. The act poses.” As to this subject, therefore, the is entitled: "An act to enlarge the powers title in no respect tends to limit the effect of of the department of agriculture, prohibit the the act. It is difficult to see any reason why transportation by intestate commerce of game Congress should have sought to discriminate killed in violation of local laws, and for between the bodies of game, song birds, or other purposes." The first section relates to wild animals brought into a state from other the department of agriculture; the second states, and those brought from foreign coun(31 Stat, 188 (U. S. Comp. St. 1901, p. 3181]) tries. The object of the legislation was to prohibits the importation of any foreign wild enable the state by their local law to exercise animal or bird, except under special permit a power over the subject of the preservation from that department, providing that it shall of game and song birds, which without that not restrict the importation of natural his- | legislation they could not exert. Every contory specimens nor caged birds, such as do- sideration that led Congress to think it wise mesticated canaries, parrots, and the like. It | to confer on the state of New York, as well then forbids absolutely the importation of | as on other states, a power (which is practicthe mongoose, flying foxes, the English spar- ally that of prohibition during the close searow, and such other birds as the secretary son, at least for the purposes of sale) over of agriculture may deem injurious to the the importation of partridges from New Jer. interest of agriculture or horticulture. The sey, Pennsylvania, or Connecticut, is equally third section forbids the delivery to a com applicable to the importation of such birds mon carrier for shipment from one state to from Canada. The obstacle to the successful another of any wild animals or birds killed enforcement of the game laws of the state in the state in violation of its laws. The would be as great in the one case as the fifth section (31 Stat. 188 (U. S. Comp. St. other, and, as Canada borders on the United 1901, p. 3182]) deals with the transportation States for a distance of 3,000 miles, the pracinto any state of animals killed without the tical danger would be as great in one case state. It is as follows: "That all dead as in the other, whatever it might be in the bodies, or parts thereof, of any foreign game case of an importation from Europe. But it animals, or game, or song birds, the importa- | is said Congress permits the importation of tion of which is prohibited, or the dead foreign game, and collects the duty thereon, bodies or parts thereof, of any wild game and it cannot have intended to allow propanimals, or game, or song birds transported i erty thus imported to be confiscated. The into any state or territory, or remaining proposition that Congress allows the importherein for use, consumption, sale, or storage tation of foreign game is true only in a retherein, shall upon arrival in such state or stricted sense. By the Lacey act Congress territory be subject to the operation and ef- | determined to aid the states in the enforce fect of the laws of such state or territory ment of their game laws, but did not deem enacted in the exercise of its police powers, it wise to enact a game law of its own, and to the same extent and in the same manner this for the very obvious reason that the game as though such animals or birds had been laws of the different states vary greatly, a Faproduced in such state or territory, and shall riation justified in no small degree by varying not be exempt therefrom by reason of being | climatic conditions. It would be unwise to introduced therein in original packages or entirely prohibit the importation of game into otherwise. This act shall not prevent the the country during a part of the year during importation, transportation, or sale of birds which in some of the states the taking and or bird plumage, manufactured from the consumption of such game is lawful. So feathers of barnyard fowl."

it practically said to the citizen: We do not It is contended that the title of the statute prohibit the importation of foreign game, tends to show that the operation of section but subject it to the local laws, and you must 5 is confined to shipment from other states,' see to it, at your risk, that you do not violate and not to importation from foreign coun- those laws. The term "transported" is used

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