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right, as future necessity should require, to, ment in favor of plaintiff, defendants apcompel the construction and maintenance of peal. Transferred from Appellate Court, a bridge or viaduct of such dimensions, width, | under section 1337u, Burns' Anu. St. 1901. and construction as should, as nearly as may | Reversed. be, restore the street to its former condition See 69 N. E. 469. of usefulness.” In the case of Gale v. Vil

James A. Bryant, for appellants. . Clarke lage of Kalamazoo, 23 Mich. 344, 9 Am. Rep.

& Clarke, L. D. Hay, and J. W. Bowlus, for 80, in discussing a kindred contract, Cooley,

appellee. J., said: “What would be thought proper for the village this year might be found GILLETT, C. J. Appellee, who was the worse than useless the next, and no official plaintiff below, brought this action against prescience could determine with absolute or appellants, seven in number, trustees of the even tolerable certainty what changes a few | Allen Chapel A. M. E. Church, to recover years might work. Indeed, it is impossible to for services as an attorney. The complaint predicate reasonableness to any contract by was in two paragraphs, and in each of them which the governing authority abdicates any appellee counted on a written contract purof its legislative powers and precludes itself porting to have been made by Edward from meeting in the proper way the emergen- Brewer, Thomas Ashley, and Robert Alexcies that may arise. Those powers are con. ander as trustees of said church, but signed ferred in order to be exercised again and by each of said three persons in his indiagain, as may be found needful or politic, vidual capacity. It is alleged in each paraand those who hold them in trust today are graph that said three persons were appointvested with no discretion to circumscribe ed a committee to execute said contract on their limits or diminish their efficiency, but behalf of the church. Appellants were demust transmit them unimpaired to their suc. feated below, and the question presented cessors." See, also, New York, N. H. & H. for our consideration is whether the eviR. Co. v. Village of New Rochelle (Sup.) 60 dence was sufficient to uphold the result. N. Y. Supp. 904; Brimmer v. City of Boston, At the time said contract was entered in102 Mass. 19; Milhan et al. v. Sharp et al., to there were seven trustees of said church. 27 N. Y. 611, 84 Am. Dec. 314; City of Oak There was no evidence introduced which land v. Carpentier, 13 Cal. 540; Mott et al. tended to show that the three persons who v. Penn. R. R. Co. et al., 30 Pa. 9, 72 Am. signed said contract had any authority to Dec. 664; Mayor, etc., v. Bowman, 39 Miss. to act on behalf of the board of trustees. It 671; Dingman v. People, 51 Ill. 277; Matthews is claimed, however, by counsel for appel. V. City of Alexandria, 68 Mo. 115, 30 Am. lants that the contract 'was ratified by the Rep. 776.

board. Assuming that a ratification is equivThe agreement entered into between the alent to a prior authority, and that it may relator and the railway company was on the be declared on as such (16 Ency. of Pl. & part of the city an unwarranted surrender of Pr, 904), the difficulty which here presents legislative power and control over the cross itself it that there is no charge in the coming, and an unauthorized assumption of the plaint that the church executed the contract, burdens of another, and is invalid and void. or that there was any mutual mistake We have already shown that the specific du whereby the persons signing same (other ty of making and maintaining a grade cross than appellee) were led individually to exeing was imposed upon the railway company, cute the same. On the contrary, the averand, the agreement relied upon to provide a ment is special that said persons were ap. viaduct in lieu of the crossing being invalid, pointed by the trustees as members of a it follows that the return was insufficient, committee to sign said agreement. Under and the demurrer thereto rightly sustained. this form of allegation, and with the con

Finding no reversible error, the judgment tract purporting to be an individual underis affirmed.

taking, we are of opinion that appellee cannot recover on the theory of a subsequent

ratification. We are unable to apprehend (156 Ind. 147)

how, without reformation, a recovery could ASHLEY et al. . HENDERSON. be had against the board on a contract (No. 20,556.)

which did not purport to charge it. If there (Supreme Court of Indiana. Feb. 20, 1906.) was a sufficient ratification, the demand PLEADING-VARIANCE.

might be declared on under a common count, In an action against the trustees of a church, or the special contract might be reformed. a complaint alleging that the contract sued on

It will not avail, however, that a plaintiff was executed by three persons who had been appointed a committee to execute the contract on

makes out a cause of action upon the evibehalf of the church is not supported by proof dence, if his complaint fails to state a cause of a subsequent ratification of the contract in of action, or if the evidence does not correstead of prior authority.

spond in legal effect with the material alAppeal from Superior Court, Marion Coun legations of his complaint. See Cleveland, ty; Vinson Carter, Judge.

etc., R. Co. v. Wynant, 100 Ind. 160. Action by William E. Henderson against Judgment reversed, and a new trial or. Thomas Ashley and others. From a judg. I dered.

(166 Ind. 237)

alternative writ because it was not alleged ADVISORY BOARD OF HARRISON TP. V. I therein that there were such funds available

STATE ex rel. SMITH. (No. 20,689.) for that purpose. Unless there were such (Supreme Court of Indiana. Feb. 23, 1906.) funds, the advisory board could not make an 1. MANDAMUS—COMPLAINT-SUFFICIENCY. “appropriation" thereof. Board, etc., p.

In mandamus to compel the advisory board State, 156 Ind. 550, 554, 555, 60 N. E. 344; of a township to make an appropriation to build State v. Fisher, 157 Ind. 412, 413, 61 N. E. a schoolhouse, a complaint and alternative writ

929. It is well settled in this state that the failing to show that there were any funds from which the appropriation could be made were including in the mandatory clause of an aldemurrable.

ternative writ of a command for greater re2. SAME – ALTERNATIVE WRIT - EFFECT ON lief than the relator is entitled to under the PETITION.

allegations of his petition and writ renders Including in the mandatory clause of an alternative writ of mandamus a command for

the same insufficient as against a demurrer greater relief than the relator is entitled to for want of facts or a motion to quash. State under the allegations of his petition and writ ex rel. v. Connersville Nat. Gas. Co., 163 Ind. renders the same insufficient as against a de

563, 568, 71 N. E. 483, and cases cited. murrer for want of facts or a motion to quash.

Judgment reversed, with instructions to susAppeal from Circuit Court, Miami County;

tain appellant's demurrer to the complaint Joseph N. Tillett, Judge.

and alternative writ.
Mandamus by the state, on relation of
Zadoc Smith, against the advisory board of
Harrison township. Froin a judgment grant-

(166 Ind. 162) ing a peremptory writ, respondent appeals.

STATE ex rel. WESTERN CONST. CO. v. Reversed.

BOARD OF COM’RS OF CLINTON Cox & Andrews, for appellant.

COUNTY. (No. 20,589.)

(Supreme Court of Indiana. Feb. 21, 1906.) MONKS, J. This action was brought by the | 1. APPEAL-RECORD-EVIDENCE AS TO QUES. relator to compel appellant by writ of manda

TION INVOLVED. mus to make an appropriation to build a school Where an opinion and judgment of the Suhouse in a new joint school district." The al preme Court in a former case is pleaded as an

adjudication, such court is at liberty to look to ternative writ of mandate commanded appel

the record of such case for the purpose of deterlant to make an appropriation" of a 'sufficient mining what was adjudicated. sum of money to defray Harrison township's 2. RAILROADS-RAILROAD AID – TAXATION proportionate share of the cost for the pur RIGHTS OF RAILROAD-MANDAMUS TO CONchase of the site and the erection of a school

PEL COLLECTION. house in the new joint school district of Har

Acts 1869, p. 96, C. 44, § 17, in relation to

railroad aid by counties and townships, provides rison and Clay townships, as prayed for by that, "after" the money authorized to be apa majority of the school patrons of school propriated shall have been "levied and collect. districts 1 and 2 of said townships, as set

ed," the company, having fully constructed the

road, may demand and have the money paid forth in the petition as granted and ordered

over according to the intent and meaning of by the county superintendent of said county the act, and that any one of the petitioners on appeal, or show cause,” etc. Appellant's or any taxpayer may compel the same to be demurrer for want of facts to the com

done by mandate against the county commis

sioners. Section 14 (page 95) provides that the plaint and said alternative writ was overrul

board of commissioners may, "after" the assessed. Appellants filed a return to the alter ment provided for shall have been collected, native writ, and appellee's demurrer thereto donate such moneys to the company for the pur. for want of facts was sustained, and, ap

pose of aiding in the construction of the rail.

road, and pay the same over from time to time. pellant refusing to plead further, a judgment Acts 1875, p. 121, c. 82, supplementary to the and order for a peremptory writ was enter act of 1869, provided for a suspension of the ed against appellant.

tax until the statutory provisions relative to It is insisted by appellant that the court

railroads bad been complied with, and for the

making of an order for the collection of the below erred in overuling the demurrer to the tax upon a compliance with such provisions, complaint and alternative writ. The Gener Acts 1877, p. 111, c. 69, entitled "An act es: al Assembly, by sections 8087a-80851, Burns'

tending the time for the completion of rail

roads," etc., provides that a railroad shall bare Ann. St. 1901, created the township advisory

five years in which to complete the road, and boards and gave them all their powers. Ad that, on completion, the company “shall be visory Board v. State, 164 Ind. 295, 301, 73 entitled to the appropriation.” Acts Sp. Sess, N. E. 700. Section 6 of said act, being sec

1875, p. 70, c. 25, amended the act of 1869 by

confining its provisions to townships, but was tion 8085f, Burns' Ann. St. 1901, provides

otherwise substantially the same. Held, that for a special session of the advisory board at though a railroad had constructed its road, and which, in case of emergency, the trustee may

a special tax had been levied against a townbe authorized to borrow money to meet such

ship to raise money for a donation, the road

had no interest in the appropriation as against emergency. Assuming, without deciding,

the township, and could not maintain mandamus that it was the duty of appellant to make to require the collection of the tax. the appropriation, if there were funds of 3. APPEAL-LAW OF THE CASE-QUESTIONS said school township not appropriated avail. I DECIDED-CONSTRUCTION OF OPINION.

A statement in an opinion of the Supreme able for that purpose, the court erred in over

Court is not to be regarded as an adjudication, ruling the demurrer to the complaint and where the statement is erroneous and contradietory to other portions of the opinion, and was , sulted in favor of the proposition, and, after not necessary to a disposition of the questions taking the proper intermediate steps, the presented.

board, at its June session, 1878, levied a 4. ESTOPPEL - INCONSISTENT POSITIONS IN LITIGATION.

special tax of 94/100 of 1 per cent on the Where a party on appeal assumed that real and personal property of said township. the judgment appealed from had only a certain The tax was placed on the duplicate, but the effect, and so procured an opinion along such

auditor and treasurer suspended the colleclines and acquiesced therein, he could not subsequently on another appeal contend that the

tion thereof, as provided by section 5369, judgment had any other effect.

supra. It further appears that in June, 1886, Appeal from Circuit Court, Clinton County ;

David P. Barner and more than 25 other Joseph M. Rabb, Special Judge.

taxpayers of said township filed a petition Mandamus by the state, on the relation

with the board of commissioners to cancel of the Western Construction Company, to

said tax, as provided by sald section. Pub- . compel the board of commissioners of Clin

lication was duly had, and pursuant thereto ton county to require the treasurer thereof

one Bayless appeared before the board and to collect a certain railway aid tax levied filed a petition, setting up facts to the effect against Center township. From a judgment

that said railroad company had performed sustaining a demurrer to the petition and

the statutory conditions and charging therealternative writ, relator appeals. Affirmed.

in that it was the duty of the board to order F. Winter, A. W. Hatch, and W. R. Moore,

said tax collected. Both Bayless and the

railroad company filed an answer, by way of for appellant. M. A. Morrison, Frank E. Gavin, Theodore P. Davis, and James L

denial to the petition, and the petitioners

filed an answer in denial to the petition of Gavin, for appellee.

Bayless. Upon a trial the board of commis

sioners ordered the tax canceled. GILLETT, C. J. This is an action by way

Bayless

and the railroad company appealed, and the of mandate, instituted by the Western Con

proceeding ultimately reached the White cirstruction Company as relator, to compel the

cuit court. While the proceeding was pendboard of commissioners of the county of

ing on appeal, the relator herein filed in said Clinton to enter an order requiring the treas

cause its intervening petition, alleging, among urer of said county to collect a certain rail

other things, “that it had become and was way aid tax, which bad been levied against

the owner by assignment to it by said FrankCenter township, in said county, in the year

fort & State Line Railroad Company of all 1878, and which had been afterwards sus

the latter's right, title, and interest in and pended, pursuant to the provisions of sec

to said aid and tax, and demanded, as be tion 5369, Burns' Ann. St. 1901. In one form

tween said Frankfort & State Line Railroad or another, the subject-matter of this con

Company and the said Western Construction troversy, or some phase of it, has been be

Company, that said Western Construction fore this court four times prior to the tak

Company was and should be adjudged the ing of the present appeal. See Barner V. Bayless, 134 Ind. 600, 33 N. E. 907, 34 N. E.

owner of said tax, aid, and donation, and en

titled to the money derived therefrom." 502; McKinney V. Frankfort, etc., R. Co.,

It 140 Ind. 95, 38 N. E. 170, 39 N. E. 500; State

is further alleged in the relator's petition ex rel. v. Burgett, 151 Ind. 94, 51 N. E. 139;

that said cause was tried on its merits upon State ex rel. v. Board, 162 Ind. 580, 68 N.

said pleadings in the White circuit court; E. 295, 70 N. E. 373, 984. In the present

that it then and there became a material

question as between the parties whether the case the court sustained a demurrer to the petition and alternative writ, and from the

railroad company bad, within the time al

lowed by law, expended in the actual confinal judgment which followed relator appeals. In its averments of fact the writ

struction of its road in said township an follows the petition, so we need only consid

| amount of money equal to the appropriation, er the averments of the petition, and we

and also whether, prior to said time, said shall only attempt to state what seems to

railroad had transferred its right, title, and be the material averments of that pleading.

interest in and to said appropriation to the It appears that a petition in the ordinary

Western Construction Company. It is alform was filed with said board, asking that

leged that said court rendered final judgment said township make an appropriation of

în said cause, whereby it adjudged that said $20,000 to aid the Frankfort & State Line

railroad company, by expending in the conRailroad Company. The board ordered an

struction of its line of railroad in said townelection, and the notice thereof stated that it ship a sum of money in excess of $20,000, was to be held to take the votes of the legal had earned said sum of $20,000 local aid voters of said township upon the proposition

voted by the taxpayers of said township; to aid in the construction of said railroad "by that the intervening petitioner, the Western donating money to said company to the Construction Company, acquired by assignamount of $20,000, as provided by an act to ment the right and interest of said railroad amend the 1st, 2d, 3d, 4th, 13th, and 17th sec company in said aid; that the board of com. tions of an act 'approved May 12, 1869, and missioners enter an order upon its records Acts amendatory thereto.'* The election re I requiring that said tax be immediately col

THAT T

lected by the treasurer of said county, as this conclusion we have neither the power though the same had never been suspended ; nor the inclination to interfere. It is claimthat the order of said board suspending the ed, however, by the appellants, that during tax was void ; that the auditor of said coun the progress of the cause the court below ty place upon bis duplicate said voted aid committed many errors which prevented them "of $20,000, together with the proper penalty from having a fair trial. It is claimed, first, thereon, and interest thereon, from the 31st that the court erred in permitting the Western day of June, 1881, until collected"; that the Construction Company to intervene and be treasurer at once proceed, as in the case of come a party to the suit. It would seem to delinquent taxes, to collect said aid to $20, be a sufficient answer to this claim to say 000, together with said penalty and interest that the Western Construction Company was from the 31st day of June, 1881, and that the permitted to become an intervener in this treasurer, when the same is collected, shall

case without objection or exception. Had immediately pay the same to the clerk of such objection been made, as it was the ownthe White circuit court for the use and bene er of the subject-matter of the suit, we see fit of the Western Construction Company,

no impropriety in permitting it to appear its assignees or successors. It is further al

and take such steps as would protect its inleged in the petition herein that the petition terests. Such seems to be the recognized ers, Barner and others, appealed to this

practice." court, and that on issues duly joined said

The relator in this case also pleads the judgment of the White circuit court was af

proceedings and judgment in certain confirmed. Then follows the opinion of this

tempt proceeding which had their origin in court, as the same appears in Barner v. Bay

the refusal of the members of the board and less, 134 Ind. 600, 33 N. E. 907, 34 N. E, 502.

auditor and treasurer to obey the requireFor the sake of clearness, we deem it prop

ments of said judgment. Said officers were er to quote the following portion of said

adjudged guilty of contempt, and upon apopinion: “Many of the questions discussed

pealing to this court the judgment was reby counsel in their briefs, when applied to

versed. Finally, it is alleged in said petithis case, are of no importance whatever.

tion that in September, 1904, relator filed a The board of commissioners of Clinton county

certified copy of said proceedings in the case was not a party to the cross-complaint of

of Barner v. Bayless with the board of comBayless, nor was the county auditor or coun

missioners, and demanded performance, which ty treasurer such party. They were not parties to this suit in any sense. It is plain,

was refused. Relator grounds its demand of

a reversal upon the claim that it is entitled therefore, that any order the court may have

to the appropriation under the statutes, upon made in this case, in relation to the collec

the judgment of the White circuit court tion of the tax in controversy, was a mere nullity, for the reason that no party was

in the cause last mentioned, and upon the before the court upon whom such an order

proposition that the decision of this court could operate. Such order could not affect

in Barner v. Bayless settled, as the law of the appellants, because they had no power

the case, relator's ownership of the subject

matter of the suit, by its declaration upon to execute it; nor were any orders made by the court affecting them, beyond fixing their

that point, and by its judgment of affirmance. liability for the tax which they were seeking

It does not admit of doubt that in a case to avoid. Nor does the order of the court di

of this kind, where the very opinion and recting that the tax, when collected, be paid

judgment of this court is pleaded as an adover to the appellee, the Western Construc

judication, we are at liberty to look to the tion Company, in any manner affect the ap

entire record for the purpose of determinpellants. If they are compelled to pay the

ing what was adjudicated. Denney v. State tax in controversy, it is immaterial to them

ex rel., 144 Ind. 503, 42 N. E. 929, 31 L. R. whether it is paid over to the railroad com- | A. 726; Washington, etc., R. C. F. Coeur pany or to the construction company which

d'Alene, etc., R. Co., 160 U. S. 101, 16 Sup. performed the labor of constructing the rail

Ct. 239, 40 L. Ed. 355 ; Cluggish v. Koons, 15 road. Stripped of these immaterial matters,

Ind. App. 599, 43 N. E. 158; Hancock v. Diawe reach the controlling question in the case,

mond Plate Glass Co. (Ind. App.) 75 N. E. and that is the question as to whether the 659; Poole v. Seney, 70 Iowa, 275, 24 N. W. railroad company had expended, in Center 520, 30 N. W. 634; Dawson v. Dawson, 29 township, in the actual construction of its

Mo. App. 521; Dewey v. St. Albans Trust Co., road, a sum equal to the donation voted by 60 Vt. 1, 12 Atl. 224, 6 Am. St. Rep. 84. the township. This was a question for trial There is an especial reason in this case for before the circuit court. As a question of an examination of the record, and that is fact, it was hotly contested, and the evi-l that certain utterances of the court in the dence relating to it was conflicting. The opinion pleaded are ambiguous. Especially court hearing the evidence reached the con- | in such a case as this do we assert the right clusion that the company had expended, in and duty of the court to examine the whole the actual construction of its road in Center record, tbat we may know the precise postownship, a sum largely in excess of the ture of the case and interpret the language amount of the donation in controversy. With of the opinion in the light of the surrounding

facts. As we are thus called on to resort to was contrary to the evidence or outside the the record, it must be with whatever result | issues. Under this subdivision Mr. Eldridge may follow from that examination, for it says: “We will examine a few of the obis an ancient rule of pleading that “that jections pointed out. It is claimed that the which is apparent to the court, and appears finding that the appropriation was a donation from a necessary implication in the record, was erroneous. As we have shown supra, need not be averred." 7 Bacon's Abr. 459; it was a donation, and the court was right in Dewey v. St. Albans Trust Co., supra; Shee so finding. But, even if otherwise, the apnan v. Sims, 36 Mo. App. 244. It is settled pellant can gain nothing by questioning it. that a party cannot depart from a record un They are not interested. According to their der which he claims or relies. Lowry v. Er own argument, it is wholly immaterial what win, 6 Rob. (La.) 192, 39 Am. Dec. 556.

the finding is as to this, as to any one except An examination of the record of Barner v. the board of commissioners, and they are not Bayless, supra, reveals the following facts: parties here and are not bound by the finding. The White circuit court had stated in 10

If, legally, they are entitled to take stock, conclusions of law (a special finding having

and have not waived their right, they may been required) the various elements that went

demand it notwithstanding the finding here to make up said judgment, and which, there made. Appellants should confine themselves fore, we need not repeat. It was assigned as

to treating their own injuries, not those of a ground for a new trial that the assessment

others." On page 22 of his brief Mr. Eldridge of the amount of recovery was erroneous,

says: “Again, it is claimed that the amount being too high. It was also assigned as

gned as l of the recovery is erroneous, being too high; grounds for a new trial that each of the that only $20,000, without interest or penalty, special findings of the court was contrary to

| could in any way be collected. The question the evidence, and that they were not sus

does not arise upon this motion (motion for tained by sufficient evidence. An exception

a new trial), and the error, if any, invades was reserved to the overruling of the motion.

no right of the appellants. The board of The petitioners moved in arrest of judgment

commissioners is not a party, nor is the auupon the complaint of interpleader of the ditor or the treasurer, and cannot be bound Western Construction Company, which mo

in this action. If unlawful, the penalty and tion was overruled, and exception taken.

interest need not be paid; that is a question Among other assignments of error of the ap

for debate later." From the brief of Mr. pellants in said cause were the following:

Sims we take the following: "The only issue “(1) That the complaint by way of bill

in this case in which the appellants can have of interpleader of the Western Construction any possible interest is the one we have sug. Company does not state facts sufficient to gested, yiz.: Has the railroad company exconstitute' à cause of action; • . ' (4) pended an amount of money equal to said that the court bad no jurisdiction of the sub appropriation in the construction of its road ject-matter of the action of the Western Con

in said township? This was the controlling struction Company; • • • (12) that the issue, and its determination by the court dis. court erred in overruling appellants' motion | posed of all questions in which the appellants for a new trial; (13) that the court erred in could have any possible interest. The resioverruling appellants' motion in arrest of due of said judgment amounted simply to judgment; and (14) that the court had not an adjudication of the conflicting rights of Jurisdiction of the persons of the appellants the defendants between themselves. There in the action of the bill of interpleader of the was no averment in the petition that would Western Construction Company.” The briefs authorize the court to determine who was the of the appellants in said cause are not on owner of said appropriation. The question Ale. There remains on Ale, however: two could only arise upon some issue presented by briefs, filed on behalf of appellees in said the defendants or some of them. The judgaction—the brief of Mr. George R. Eldridge, ment of the court that the appellants were

ugust 31. 1892, and the additional brief entitled to no relief and that the taxes must of Mr. J. A. Sims, filed October 24, 1892. The be paid was a full adjudication of all matters brief of Mr. Eldridge indicates that several set forth in their complaint. Their complaint pages of argument were devoted by appel does not aver that they had any interest, lants in said action to the bill of complaint equitable or otherwise, in said tax after its or interpleader of the Western Construction collection. If there was any question as to Company; that the appellants were contend the ownership of said tax, it would, as we ing that the court had no jurisdiction of the have said, have to be presented by some subject-matter of said petition; that there pleading on the part of the defendants, or could be no ownership of the donation by some of them. This we think the Western the railroad company or by any one else; Construction Company has done, and had the and that the board of commissioners was en right to do under section 568 of the Revised titled to take stock for the appropriation. Statutes of 1881, which we quote in full: Under subdivision G of the brief of Mr. El-'Judgment may be given for or against one or dridge it appears that the appellants' coun- more of several plaintiffs and for or against sel were contending that much of the court's one or more of several defendants; and it finding was not sustained by the evidence or may, when the justice of the case requires it

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