ROBY, C. J. This is the second appeal. A judgment for appellee was heretofore reversed because of the insufficiency of the first paragraph of complaint. The objection urged was that it "failed to aver a compliance with all the conditions imposed upon the insured and the beneficiary by the contract." It was then said by the court that there must be "either a detailed allegation of performance of every condition or a general allegation of the performance of all conditions." Grand Lodge, etc., v. Hall, 31 Ind. App. 107, 67.N. E. 272. When the cause was returned to the trial court, an amended complaint in two paragraphs was filed; the averment contained in the first paragraph thereof, relative to performance, being in terms as follows: "Immediately after the death of said William H. Hall, plaintiff furnished defendant with proof of death of said William H. Hall, and plaintiff has performed all of the conditions of said policy on her part to be performed." Under the constitution and by-laws of the association it was incumbent upon the deceased member to keep up his membership. The beneficiary had only a contingent interest prior to the death of the member. Carter v. Carter (Ind. App.) 72 N. E. 187; Bunyan v. Reed et al. (Ind. App.) 70 N. E. 1002. The appellant, in order to make a prima facie case, was required to plead performance by the assured. Grand Lodge, etc., v. Hall, supra; Supreme Lodge, etc., v. Knight, 117 Ind. 489, 491, 20 N. E. 479, 3 L. R. A. 409. The allegation made is that the plaintiff has furnished proofs of death, and performed all of the conditions "on her part to be performed." Prior to death of the member no condition on her part to be performed existed. It is undoubtedly true that an allegation of performance by one upon whom a duty rests may be supported by proof of acts done by others for him. Had it been averred that the insured performed the conditions upon his part to be performed, proof of payment of assessments by the appellant would therefore have been admissible; but no such averment is made either in form or in substance. The demurrer to the first paragraph of amended complaint ought therefore to have been sustained. In view of the necessity for a new trial, in which the same questions will arise, it is not inappropriate to say that, while logically there may be some distinction between the admission of statements by the member of a benevolent association as against his beneficiary, in an action of this nature, and statements of a similar character by the insured, under an ordinary life policy the holding of the Supreme Court that the same rule obtains, made after due consideration, is binding upon this court. Supreme Lodge Knights of Pythias, etc., v. Schmidt, et al., 98 Ind. 374. Viewed in a broad way, there is no reason why a distinction ought to be made, Conditions may exist under which they are 1 Rehearing denied, 78 N. E. 356. See 79 N. E. 923. E. 65. receivable. Haughton v. Etna Life Ins. Co. (Ind. Sup.) 73 N. E. 592. The judgment is reversed as of the date of submission, and the cause remanded, with instructions to sustain appellant's demurrer to the first paragraph of amended complaint and for further consistent proceedings. (39 Ind. App. 193) BOARD OF COM'RS OF JACKSON COUN- 1. COUNTIES ACTION AGAINST BOARD OF COMMISSIONERS AS DEFENDANTS - USE OF COUNTY FUNDS. Under Burns' Ann. St. 1901, § 7820, making the board of commissioners of a county a body corporate and politic, and providing that as such and in such name it may prosecute and defend suits, etc., it was proper for a board of commissioners, sued in its corporate capacity on a contract between the board and one constructing a road, to use the funds of the county in defending the action. 2. SAME - PLEADING — COMPLAINT — SUFFICIENCY. Acts 1895, p. 43, c. 21, § 5, provides that a board of county commissioners shall not make full payment upon a contract for the construction of a road until the road shall have been received as completed. Held that, in an action by a contractor for a public road to recover a balance due him, the complaint was insufficient for failing to state that the board of commissioners had received the road. Appeal from Circuit Court, Jackson County; Thos. B. Buskirk, Judge. Action by Abraham B. Branaman against the board of commissioners of Jackson county. From a decree in favor of complainant, defendant appeals. Reversed. D. A. Kochenour, for appellant. A N. Mundeu, for appellee. WILEY, J. Suit in equity to enjoin appellants from using public funds belonging to the county in the defense of an action pending against the board of commissioners in which appellee was the sole plaintiff and appellant board the sole defendant. Appellee had brought an action against the board of commissioners of Jackson county on a written contract under which he undertook to construct certain free gravel roads in one of the townships of said county under an act approved March 3, 1893, and the amendatory act thereto, approved March 7, 1895. By that action he sought to recover a balance claimed to be due him upon said contract. The cause was venued to the Lawrence circuit court, where it was put at issue, and had been assigned for trial. A temporary restraining order was issued In the cause at bar. A motion was subsequently made to dissolve it, and this motion was overruled. Upon final hearing the injunetion was made perpetual. By the assignment of errors five questions are presented, but from the view of the law we have taken it is only necessary for us to consider the Rehearing denied. Superseded by opinion, $2 N. error predicated upon the action of the court in overruling the demurrer to the complaint. The complaint avers that the appellee is a resident citizen of Jackson county, residing in Owen township, and that he is a taxpayer in said county; that in September. 1898, he entered into a contract with appellants to construct certain free gravel roads in said township and county for and in consideration of $15,690; that appellants proceeded according to law to issue and sell bonds to the amount of $15,700, for the purpose of raising funds for the construction of said roads and the payment of said contract price; that said proceedings were had under the act approved March 3, 1893, and the acts amendatory thereto; that after having completed said roads according to the terms of his contract he filed his claim before the board of commissioners for $5,377.53, that being the amount due him under his contract, which said claim was wholly disallowed; that thereafter he filed his suit in the Jackson circuit court against said board to recover the sum of $7,000, the amount due him on said contract; that said suit is now pending in the Lawrence circuit court, and is set for trial May 26, 1904; that said board is made party defendant, as the enforced agent of said Owen township, and as the custodian of said bonds, and in no other capacity whatever; that said suit does not seek to recover a judgment against any fund or money belonging to said county, but seeks to recover judgment against said fund derived from sale of bonds as the money of said Owen township as a taxing district, and to have the same applied toward the payment of the costs of said roads. The complaint then concludes as follows: "That defendant is about to expend unlawfully large sums of money belonging to Jackson county for lawyer fees and mileage and fees for witnesses in defending said suit, and will so expend large sums of money of said county unless restrained from so doing without delay and before notice of the hearing of this application can be given as required by law, and plaintiff avers that defendant Asbury H. Manuel is the duly elected and acting auditor of said county. Wherefore plaintiff, as a taxpayer of said county, asks that an order be granted restraining defendant from expending any of the money belonging to said county of Jackson in defending said suit until notice of the hearing of this application can be given, and that upon such hearing a temporary injunction be granted until the final hearing, and that upon the final hearing the defendant be perpetually enjoined from expending any of the money belonging to said Jackson county, in defending said trust fund or said taxing district, and plaintiff asks all other proper relief." This suit was commenced May 18, 1904, being six days before the case then pending in the Lawrence circuit court was set for trial The demurrer to the complaint was joint and several, and the ground thereof was that it did not state facts sufficient to constitute a cause of action. The question raised by the demurrer is both anomalous and unique. That question, broadly stated, is: Can a board of county commissioners, in an action where it is the sole defendant, be enjoined from expending any of the public funds of the county in making their defense therein? The answer to this, in our judgment, both in law and reason, must be in the negative. Appellee chose his own forum, elected his own remedy, and selected his adversaries. He went into a court of law asking legal relief. He now comes into a court of equity and asks equitable relief to prevent his adversaries from using the public funds in making their defense. These two positions assumed by appellee are inconsistent, and cannot receive the approbation of the courts. By virtue of the statute the board of commissioners of each county in the state is "a body corporate and politic," and as such and in such name "may prosecute and defend suits, and have all other duties, rights and powers incident to corporations," etc. Section 7820, Burns' Ann. St. 1901. In this case the board of commissioners is sued in its corporate capacity, and it could only defend and answer in the same capacity. Bd. of Com'rs v. State ex rel., 65 Ind. 176. Having been sued in its corporate capacity, the individual members thereof could not in their individual capacity make defense, nor should they be required to do so at their own expense. To hold that a board of county commissioners, when sued in its corporate capacity, could be enjoined from using the public funds in making its defense, would establish a precedent which would put the several boards of commissioners throughout the state at the mercy of unwarranted legal attacks upon them. In an action of the character pending in the Lawrence circuit court when this suit was commenced, involving the rights of those whose lands were assessed for the payment of the costs of the construction of the roads, it was a duty incumbent upon the board of commissioners to defend that action, as the enforced agent of such taxpayers, to the end that their rights might be protected. Recurring to the complaint before us, we find it insufficient to warrant the relief asked. Appellee therein avers that he entered into a contract with the board for a specified consideration to complete the roads that had been petitioned for, that to raise funds for the payment of the contract price bonds were sold, that he completed the work required of him by the contract, that payments were made to him from time to time` as the work progressed, that there was still due him $7,000, that a sult was pending in the Lawrence circuit court against the board to recover a judgment against the fund derived from the sale of the bonds, and that in the defense of that action the board was about to expend unlawfully large sums of money in making a defense to said action. This is the sum and substance of the complaint. Section 5 of the amendatory act of 1895 (Act 1895, p. 43, c. 21) provides the manner in which the board of commissioners shall order the fund realized from the sale of bonds paid upon the contract, in this, to wit: that the board shall order the same paid in such amounts and at such times as they may agree, but no payment shall be made by the commissioners for more than 80 per cent. of the engineer's estimate of the work done by the contractor, nor shall the whole amount of the contract be paid until the road shall have been received as completed, by the board of commissioners. As far as the complaint goes is to allege that "after having completed said roads, as required by the terms of said contract, plaintiff filed his claim against said board," etc. No attempt is made to aver that the board had received the roads as completed, and this is absolutely essential to the contractor's right to receive final payment. While the board of commissioners act as the enforced agent of the property owners within the taxing district, it is the duty of such board to act within the power and authority given it by statute. It is only when the board acts within its statutory power that its acts will be regarded as legal. Acting, therefore, within its statutory power as such enforced agent, it was obligatory upon the board to refuse to authorize a final payment to appellee upon his contract until the roads had been received as completed; and in this regard the failure of the complaint to allege such fact is fatal to the complaint. But the complaint is insufficient for another reason. The board of commissioners having been sued in its corporate capacity in the original action, it not only had a right, but it was its duty, to defend that action in the interest of those whose property was assessed for the construction of the roads, and thus protect their rights. Public officers are presumed to perform their duties according to law, and, this being true, we may reasonably assume that the board of commissioners believed that there existed a valid excuse for not paying to appellee the balance of the contract price upon his demand. This being true, when suit was brought it was the duty of the board to defend the action, if in fact there was any valid defense, and for that purpose it had the right to expend any available funds in the county treasury. Whether subsequently the board would be authorized to levy an additional assessment against the taxable real estate within the taxing district to reimburse the county for any funds used out of the county treasury in making Its defense is not presented, and as to that we express no opinon. The complaint now under consideration not having stated a cause of action, the demurrer to it should have been sustained, and for the error in overruling it the judgment is reversed, the cause remanded, and the trial court directed to sustain the demurrer to the complaint. (184 N. Y. 126) PEOPLE ex rel. HILL v. HESTERBERG, Sheriff. PEOPLE ex rel. SILZ v. SAME. (Court of Appeals of New York. Feb. 27, 1906.) 1. CONSTITUTIONAL LAW-DUE PROCESS OF LAW-GAME LAWS. Laws 1900, p. 22, c. 20, as amended by Laws 1902, p. 487, c. 194, Laws 1902, p. 879, c. 317, and Laws 1904, p. 1413, c. 588, prohibiting the possession of game coming from without the state during the close season, is not unconstitutional as depriving a person of property without due process of law. [Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 823.] 2. COMMERCE-CLOSE SEASON — IMPORTATION OF GAME. Act Cong. May 25, 1900, c. 553, 31 Stat. 187 [U. S. Comp. St. 1901, p. 290], providing that all dead game, whether animals or birds. importation of which is prohibited, or any dead game carried into a state or territory for use, sale, or storage there, shall on its arrival be subject to the operation of the laws of such state enacted in the exercise of the police powers, to the same extent as if such game had been produced in such state, and shall not be exempt therefrom by reason of being introduced therein in original packages, confers on any state the right to enact laws prohibiting the possession of dead game within certain periods whether taken within or without the state. 3. SAME-WARRANT-SUFFICIENCY. Where a warrant for the arrest of defendant for violating the game laws was based on an affidavit that he had in his possession within the prohibited time certain dead game birds, namely, an imported golden plover and an imported grouse, the further statement that such birds are different varieties of game birds from the game birds known as plover and grouse in the state of New York, and from any birds native to America, cannot be urged as a defense, as such statement means, not that the bird was not a grouse, but that it was a different variety from that native to the state of New York. Appeal from Supreme Court, Appellate Division, Second Department. Application by the people on the relation of John Hill for a writ of habeas corpus to Henry Hesterberg, and by the people on the relation of August Silz for a writ of habeas corpus against the same defendant. From an order of the Appellate Division in each case (96 N. Y. Supp. 286, 109 App. Div. 295, 96 N. Y. Supp. 296, 109 App. Div. 917), reversing an order of the Special Term, quashing the writ and directing that relators be discharged, defendant appeals. Reversed. Julius M. Mayer, Atty. Gen. (Alexander T. Mason, of counsel), for appellant. John F. Clarke, Dist. Atty. (Robert H. Elder, of counsel), for appellant. Edward Lauterbach, Edward R. Finch, and John B. Coleman, for respondent Silz. John L. Hill, for respondent Hill. CULLEN, C. J. The relators were arrested on warrants charging them with a violation of the game law. They sought discharge from their arrest by writs of habeas corpus. On the return of those writs they were remanded to custody. On appeal to the Appellate Division the orders of the Special Term were reversed, and the relators discharged from custody. From those orders these appeals are taken. As the affidavits on which the warrants for the arrest of the relators were issued differ materially in their statements of facts, we will first consider the one made in the Hill Case. The affidavit avers that on the 3d day of March said John Hill did have in his possession in the Clarendon Hotel, in the borough of Brooklyn, one dead body of a bird known as a golden plover, and one dead body of a fowl commonly called a grouse; that, as the affiant was informed and believed, the said plover and grouse were taken without the state of New York, to wit, from England and Russia, and thence brought into the borough of Brooklyn. The forest, fish and game law (chapter 20, p. 22, Laws 1900, amended chapters 194 and 317, pp. 487, 879, Laws 1902; chapter 588, p. 1413, Laws 1904), by sections 106 and 108, enacts that grouse shall not be taken or possessed from January 1st to October 31st, nor plover from January 1st to July 15th. By section 140 of said act grouse is defined to include ruffed grouse, partridge and every member of the grouse family. By section 141 the inhibitions enacted by the other sections of the statute are made to apply to fish, game or flesh coming from without the state, as well as to that taken within the state. By section 119 any one violating the provisions of the statute hereinbefore recited is guilty of a misdemeanor and liable to a fine of $25 for each bird taken or possessed in violation thereof. The relator was in possession of the birds during the prohibited period, and, hence, was guilty of a misdemeanor, unless he is relieved from the penalties prescribed by the statute by the fact that the birds were imported from foreign countries. We shall not discuss at any length the claim of the relator that the statute contravenes the Constitution of this state as depriving the relator of his property without due process of law. That question has been settled adversely to that claim by the decisions of this court in Phelps v. Racey, 60 N. Y. 10, 19 Am. Rep. 140, and People v. Bootman, 180 N. Y. 1, 72 N. E. 505, in which it was held within the power of the Legislature, in order to effect the preservation of game within the state, to enact not only a close season during which the possession of such game should be unlawful, but also to enact that the possession in the state during such season of game taken without the state should be equally unlawful. The Phelps Case is cited by the Supreme Court of the United States in Geer v. Connecticut 161 U. S. 519, 16 Sup. Ct. 600, 40 L. Ed. 793, in which the validity of a statute of that state was upheld, not only on the ground that the original ownership of wild game is in the state, but on the further ground that the preservation of such game is a valid exercise of the police power of the state. To the argument that the exclusion of foreign game in no way tends to the preservation of domestic game, it is sufficient to say that substantially the uniform belief of Legislatures and people is to the contrary, and that both in England and many of the states in this country legislation prohibiting the possession of foreign game during the close season has been upheld as being necessary to the protection of domestic game, on the ground that without such inhibition or restriction any law for the protection of domestic game could be successfully evaded. Whitehead v. Smithers, L. R. [2 C. P. Div.] 553; Ex parte Maier, 103 Cal. 476, 37 Pac. 402, 42 Am. St. Rep. 129; Magner v. People, 97 Ill. 320; Missouri v. Randolph, 1 Mo. App. 15; Stevens v. State, 89 Md. 669, 43 Atl. 929: Roth v. State, 51 Ohio St. 209, 37 N. E. 259, 46 Am. St. Rep. 566; Commonwealth v. Savage, 155 Mass. 278, 29 N. E. 468. The case of Phelps v. Racey, supra, has never been overruled by this court. In the opinion delivered in People v. Buffalo Fish Company, 164 N. Y. 93, 58 N. E. 34, 52 L. R. A. 803, 79 Am. St. Rep. 622, Judge O'Brien took two positions: First, that the exclusion of fish taken without the state was invalid as interfering with the power of Congress to regulate foreign and interstate commerce; and, second, that under a proper construction of the game law as it then stood, the statute was applicable only to fish taken within the state. It was this second ground alone which received the assent of the majority of judges, and on which the decision in the case proceeded. This ground has been removed by the amendment of the statute already cited, which makes it applicable to game taken without the state. People v. Bootman, supra, reaffirmed the doctrine of Phelps v. Racey, and the validity of the legislation before us, at least so far as the Constitution of this state is involved. In that case, while we affirmed the decision below because the offenses for which the defendant was prosecuted were committed before the amendment to the statute, we felt called upon to express our opinion on the whole subject, so that the citizen might not be misled by the opinion rendered in the court below, and thus unwittingly subject himself to severe penalties. If as is claimed the views then expressed by the court on the subject now before us were obiter, and not necessary to the decision made, it is sufficient to say that we adhere to them, not on the ground of stare decisis, but because they command our approval. Therefore, if the act of Congress, passed May 25, 1900, c. 553, 31 Stat. 187 [U. S. Comp. St. 1901, p. 290], commonly termed the "Lacey Act," empowered the state to enact the legislation before us, it is unnecessary for us to enter into any examination of the question of interference with foreign and interstate commerce, discussed, but not decided, in People v. Buffalo Fish Company. That Congress can authorize an exercise of the police power by a state, which, without such authority, would be an unconstitutional interference with commerce, has been expressly decided by the Supreme Court of the United States in Matter of Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572. The question before us is merely the interpretation of the Lacey act, which the learned counsel for the respondents contend applies solely to interstate shipments, and not to importations from foreign countries. The act is entitled: "An act to enlarge the powers of the department of agriculture, prohibit the transportation by intestate commerce of game killed in violation of local laws, and for other purposes." The first section relates to the department of agriculture; the second (31 Stat. 188 [U. S. Comp. St. 1901, p. 3181]) prohibits the importation of any foreign wild animal or bird, except under special permit from that department, providing that it shall not restrict the importation of natural history specimens nor caged birds, such as domesticated canaries, parrots, and the like. It then forbids absolutely the importation of the mongoose, flying foxes, the English sparrow, and such other birds as the secretary of agriculture may deem injurious to the interest of agriculture or horticulture. The third section forbids the delivery to a common carrier for shipment from one state to another of any wild animals or birds killed in the state in violation of its laws. The fifth section (31 Stat. 188 [U. S. Comp. St. 1901, p. 3182]) deals with the transportation into any state of animals killed without the state. It is as follows: "That all dead bodies, or parts thereof, of any foreign game animals, or game, or song birds, the importation of which is prohibited, or the dead bodies or parts thereof, of any wild game animals, or game, or song birds transported into any state or territory, or remaining therein for use, consumption, sale, or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such animals or birds had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise. This act shall not prevent the importation, transportation, or sale of birds or bird plumage, manufactured from the feathers of barnyard fowl." It is contended that the title of the statute tends to show that the operation of section 5 is confined to shipment from other states, and not to importation from foreign coun tries. If the title of an act could limit its effect, which it cannot (Potter's Dwarris on Statutes, p. 102), still this claim is without foundation. The first two sections of the act deal with the department of agriculture, and the reference thereto in the title is appropriate. The third and fourth sections deal with interstate transportation of game killed in violation of local laws, and the reference in the title "prohibit the transportation by interstate commerce of game killed in violation of local laws" is equally appropriate. The fifth section, which is the one before us, deals with an entirely different matter, transportation into a state, not out of a state, and is embraced in the title of the statute only under the designation "and for other purposes." As to this subject, therefore, the title in no respect tends to limit the effect of the act. It is difficult to see any reason why Congress should have sought to discriminate between the bodies of game, song birds, or wild animals brought into a state from other states, and those brought from foreign countries. The object of the legislation was to enable the state by their local law to exercise a power over the subject of the preservation of game and song birds, which without that legislation they could not exert. Every consideration that led Congress to think it wise to confer on the state of New York, as well as on other states, a power (which is practically that of prohibition during the close season, at least for the purposes of sale) over the importation of partridges from New Jersey, Pennsylvania, or Connecticut, is equally applicable to the importation of such birds from Canada. The obstacle to the successful enforcement of the game laws of the state would be as great in the one case as the other, and, as Canada borders on the United States for a distance of 3,000 miles, the practical danger would be as great in one case as in the other, whatever it might be in the case of an importation from Europe. But it is said Congress permits the importation of foreign game, and collects the duty thereon, and it cannot have intended to allow property thus imported to be confiscated. The proposition that Congress allows the importation of foreign game is true only in a restricted sense. By the Lacey act Congress determined to aid the states in the enforcement of their game laws, but did not deem it wise to enact a game law of its own, and this for the very obvious reason that the game laws of the different states vary greatly, a variation justified in no small degree by varying climatic conditions. It would be unwise to entirely prohibit the importation of game into the country during a part of the year during which in some of the states the taking and consumption of such game is lawful. So it practically said to the citizen: We do not prohibit the importation of foreign game, but subject it to the local laws, and you must see to it, at your risk, that you do not violate those laws. The term "transported" is used |