right, as future necessity should require, to compel the construction and maintenance of a bridge or viaduct of such dimensions, width, and construction as should, as nearly as may be, restore the street to its former condition of usefulness." In the case of Gale v. Village of Kalamazoo, 23 Mich. 344, 9 Am. Rep. 80, in discussing a kindred contract, Cooley, J., said: "What would be thought proper for the village this year might be found worse than useless the next, and no official prescience could determine with absolute or even tolerable certainty what changes a few years might work. Indeed, it is impossible to predicate reasonableness to any contract by which the governing authority abdicates any of its legislative powers and precludes itself from meeting in the proper way the emergencies that may arise. Those powers are conferred in order to be exercised again and again, as may be found needful or politic, and those who hold them in trust today are vested with no discretion to circumscribe their limits or diminish their efficiency, but must transmit them unimpaired to their successors." See, also, New York, N. H. & H. R. Co. v. Village of New Rochelle (Sup.) 60 N. Y. Supp. 904; Brimmer v. City of Boston, 102 Mass. 19; Milhan et al. v. Sharp et al., 27 N. Y. 611, 84 Am. Dec. 314; City of Oakland v. Carpentier, 13 Cal. 540; Mott et al. v. Penn. R. R. Co. et al., 30 Pa. 9, 72 Am. Dec. 664; Mayor, etc., v. Bowman, 39 Miss. 671; Dingman v. People, 51 Ill. 277; Matthews v. City of Alexandria, 68 Mo. 115, 30 Am. Rep. 776.

The agreement entered into between the relator and the railway company was on the part of the city an unwarranted surrender of legislative power and control over the crossing, and an unauthorized assumption of the burdens of another, and is invalid and void. We have already shown that the specific duty of making and maintaining a grade crossing was imposed upon the railway company, and, the agreement relied upon to provide a viaduct in lieu of the crossing being invalid, it follows that the return was insufficient, and the demurrer thereto rightly sustained. Finding no reversible error, the judgment is affirmed.

(166 Ind. 147)

ASHLEY et al. v. HENDERSON.
(No. 20,556.)

(Supreme Court of Indiana. Feb. 20, 1906.) PLEADING-VARIANCE.

In an action against the trustees of a church, a complaint alleging that the contract sued on was executed by three persons who had been appointed a committee to execute the contract on behalf of the church is not supported by proof of a subsequent ratification of the contract instead of prior authority.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by William E. Henderson against Thomas Ashley and others. From a judg

ment in favor of plaintiff, defendants appeal. Transferred from Appellate Court, under section 1337u, Burns' Anu. St. 1901. Reversed.

See 69 N. E. 469.

James A. Bryant, for appellants. Clarke & Clarke, L. D. Hay, and J. W. Bowlus, for appellee.

GILLETT, C. J. Appellee, who was the plaintiff below, brought this action against appellants, seven in number, trustees of the Allen Chapel A. M. E. Church, to recover for services as an attorney. The complaint was in two paragraphs, and in each of them appellee counted on a written contract purporting to have been made by Edward Brewer, Thomas Ashley, and Robert Alexander as trustees of said church, but signed by each of said three persons in his individual capacity. It is alleged in each paragraph that said three persons were appointed a committee to execute said contract on behalf of the church. Appellants were defeated below, and the question presented for our consideration is whether the evidence was sufficient to uphold the result.

It

At the time said contract was entered into there were seven trustees of said church. There was no evidence introduced which tended to show that the three persons who signed said contract had any authority to to act on behalf of the board of trustees. is claimed, however, by counsel for appellants that the contract was ratified by the board. Assuming that a ratification is equivalent to a prior authority, and that it may be declared on as such (16 Ency. of Pl. & Pr. 904), the difficulty which here presents itself it that there is no charge in the complaint that the church executed the contract. or that there was any mutual mistake whereby the persons signing same (other than appellee) were led individually to execute the same. On the contrary, the averment is special that said persons were appointed by the trustees as members of a committee to sign said agreement. Under this form of allegation, and with the contract purporting to be an individual undertaking, we are of opinion that appellee cannot recover on the theory of a subsequent ratification. We are unable to apprehend how, without reformation, a recovery could be had against the board on a contract which did not purport to charge it. If there was a sufficient ratification, the demand might be declared on under a common count, or the special contract might be reformed. It will not avail, however, that a plaintiff makes out a cause of action upon the evidence, if his complaint fails to state a cause of action, or if the evidence does not correspond in legal effect with the material allegations of his complaint. See Cleveland, etc., R. Co. v. Wynant, 100 Ind. 160.

Judgment reversed, and a new trial ordered.

(166 Ind. 237)

ADVISORY BOARD OF HARRISON TP. v. STATE ex rel. SMITH. (No. 20,689.) (Supreme Court of Indiana. Feb. 23, 1906.) 1. MANDAMUS-COMPLAINT-SUFFICIENCY.

In mandamus to compel the advisory board of a township to make an appropriation to build a schoolhouse, a complaint and alternative writ failing to show that there were any funds from which the appropriation could be made were demurrable.

2. SAME ALTERNATIVE WRIT-EFFECT ON PETITION.

Including in the mandatory clause of an alternative writ of mandamus a command for greater relief than the relator is entitled to under the allegations of his petition and writ renders the same insufficient as against a demurrer for want of facts or a motion to quash.

Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Mandamus by the state, on relation of Zadoc Smith, against the advisory board of Harrison township. From a judgment granting a peremptory writ, respondent appeals. Reversed.

Cox & Andrews, for appellant.

MONKS, J. This action was brought by the relator to compel appellant by writ of mandamus to make an appropriation to build a schoolhouse in "a new joint school district." The alternative writ of mandate commanded appellant to make "an appropriation" of a "sufficient sum of money to defray Harrison township's proportionate share of the cost for the purchase of the site and the erection of a schoolhouse in the new joint school district of Harrison and Clay townships, as prayed for by a majority of the school patrons of school districts 1 and 2 of said townships, as set forth in the petition as granted and ordered by the county superintendent of said county on appeal, or show cause," etc. Appellant's demurrer for want of facts to the complaint and said alternative writ was overruled. Appellants filed a return to the alternative writ, and appellee's demurrer thereto for want of facts was sustained, and, appellant refusing to plead further, a judgment and order for a peremptory writ was entered against appellant.

Ad

It is insisted by appellant that the court below erred in overuling the demurrer to the complaint and alternative writ. The General Assembly, by sections 8085a-80851, Burns' Ann. St. 1901, created the township advisory boards and gave them all their powers. visory Board v. State, 164 Ind. 295, 301, 73 N. E. 700. Section 6 of said act, being section 8085f, Burns' Ann. St. 1901, provides for a special session of the advisory board at which, in case of emergency, the trustee may be authorized to borrow money to meet such emergency. Assuming, without deciding, that it was the duty of appellant to make the appropriation, if there were funds of said school township not appropriated available for that purpose, the court erred in overruling the demurrer to the complaint and

alternative writ because it was not alleged therein that there were such funds available for that purpose. Unless there were such funds, the advisory board could not make an "appropriation" thereof. Board, etc., V. State, 156 Ind. 550, 554, 555, 60 N. E. 344; State v. Fisher, 157 Ind. 412, 413, 61 N. E. 929. It is well settled in this state that the including in the mandatory clause of an alternative writ of a command for greater relief than the relator is entitled to under the allegations of his petition and writ renders the same insufficient as against a demurrer for want of facts or a motion to quash. State ex rel. v. Connersville Nat. Gas. Co., 163 Ind. 563, 568, 71 N. E. 483, and cases cited.

Judgment reversed, with instructions to sustain appellant's demurrer to the complaint and alternative writ.

(166 Ind. 162)

STATE ex rel. WESTERN CONST. CO. v. BOARD OF COM'RS OF CLINTON COUNTY. (No. 20,589.)

(Supreme Court of Indiana. Feb. 21, 1906.) 1. APPEAL-RECORD-EVIDENCE AS TO QUES TION INVOLVED.

Where an opinion and judgment of the Supreme Court in a former case is pleaded as an adjudication, such court is at liberty to look to the record of such case for the purpose of determining what was adjudicated.

2. RAILROADS-RAILROAD AID-TAXATION RIGHTS OF RAILROAD-MANDAMUS TO COMPEL COLLECTION.

Acts 1869, p. 96, c. 44, § 17, in relation to railroad aid by counties and townships, provides that, "after" the money authorized to be appropriated shall have been "levied and collected," the company, having fully constructed the road, may demand and have the money paid over according to the intent and meaning of the act, and that any one of the petitioners or any taxpayer may compel the same to be done by mandate against the county commissioners. Section 14 (page 95) provides that the board of commissioners may, "after" the assess ment provided for shall have been collected, donate such moneys to the company for the purpose of aiding in the construction of the railroad, and pay the same over from time to time. Acts 1875, p. 121, c. 82, supplementary to the act of 1869, provided for a suspension of the tax until the statutory provisions relative to railroads had been complied with, and for the making of an order for the collection of the tax upon a compliance with such provisions. Acts 1877, p. 111, c. 69, entitled "An act extending the time for the completion of railroads," etc., provides that a railroad shall have five years in which to complete the road, and that, on completion, the company "shall be entitled to the appropriation." Acts Sp. Sess. 1875, p. 70, c. 25, amended the act of 1869 by confining its provisions to townships, but was otherwise substantially the same. Held, that though a railroad had constructed its road, and a special tax had been levied against a township to raise money for a donation, the road had no interest in the appropriation as against the township, and could not maintain mandamus to require the collection of the tax. 3. APPEAL-LAW OF THE CASE-QUESTIONS DECIDED-CONSTRUCTION OF OPINION.

A statement in an opinion of the Supreme Court is not to be regarded as an adjudication, where the statement is erroneous and contradic

Where a party on appeal assumed that the judgment appealed from had only a certain effect, and so procured an opinion along such lines and acquiesced therein, he could not subsequently on another appeal contend that the judgment had any other effect.

Appeal from Circuit Court, Clinton County; Joseph M. Rabb, Special Judge.

Mandamus by the state, on the relation of the Western Construction Company, to compel the board of commissioners of Clinton county to require the treasurer thereof to collect a certain railway aid tax levied against Center township. From a judgment sustaining a demurrer to the petition and alternative writ, relator appeals. Affirmed.

F. Winter, A. W. Hatch, and W. R. Moore, for appellant. M. A. Morrison, Frank E. Gavin, Theodore P. Davis, and James L Gavin, for appellee.

GILLETT, C. J. This is an action by way of mandate, instituted by the Western Construction Company as relator, to compel the board of commissioners of the county of Clinton to enter an order requiring the treasurer of said county to collect a certain railway aid tax, which had been levied against Center township, in said county, in the year 1878, and which had been afterwards suspended, pursuant to the provisions of section 5369, Burns' Ann. St. 1901. In one form or another, the subject-matter of this controversy, or some phase of it, has been before this court four times prior to the taking of the present appeal. See Barner v. Bayless, 134 Ind. 600, 33 N. E. 907, 34 N. E. 502; McKinney v. Frankfort, etc., R. Co., 140 Ind. 95, 38 N. E. 170, 39 N. E. 500; State ex rel. v. Burgett, 151 Ind. 94, 51 N. E. 139; State ex rel. v. Board, 162 Ind. 580, 68 N. E. 295, 70 N. E. 373, 984. In the present case the court sustained a demurrer to the petition and alternative writ, and from the final judgment which followed relator appeals. In its averments of fact the writ follows the petition, so we need only consider the averments of the petition, and we shall only attempt to state what seems to be the material averments of that pleading.

It appears that a petition in the ordinary form was filed with said board, asking that said township make an appropriation of $20,000 to aid the Frankfort & State Line Railroad Company. The board ordered an election, and the notice thereof stated that it was to be held to take the votes of the legal voters of said township upon the proposition to aid in the construction of said railroad "by donating money to said company to the amount of $20,000, as provided by an act to amend the 1st, 2d, 3d, 4th, 13th, and 17th sections of an act 'approved May 12, 1869, and acts amendatory thereto.'" The election re

sulted in favor of the proposition, and, after taking the proper intermediate steps, the board, at its June session, 1878, levied a special tax of 94/100 of 1 per cent. on the real and personal property of said township. The tax was placed on the duplicate, but the auditor and treasurer suspended the collection thereof, as provided by section 5369, supra. It further appears that in June, 1886, David P. Barner and more than 25 other taxpayers of said township filed a petition with the board of commissioners to cancel said tax, as provided by said section. Pub lication was duly had, and pursuant thereto one Bayless appeared before the board and filed a petition, setting up facts to the effect that said railroad company had performed the statutory conditions and charging therein that it was the duty of the board to order said tax collected. Both Bayless and the railroad company filed an answer, by way of denial to the petition, and the petitioners filed an answer in denial to the petition of Bayless. Upon a trial the board of commissioners ordered the tax canceled. Bayless and the railroad company appealed, and the proceeding ultimately reached the White circuit court. While the proceeding was pending on appeal, the relator herein filed in said cause its intervening petition, alleging, among other things, "that it had become and was the owner by assignment to it by said Frankfort & State Line Railroad Company of all the latter's right, title, and interest in and to said aid and tax, and demanded, as between said Frankfort & State Line Railroad Company and the said Western Construction Company, that said Western Construction Company was and should be adjudged the owner of said tax, aid, and donation, and entitled to the money derived therefrom." It is further alleged in the relator's petition that said cause was tried on its merits upon said pleadings in the White circuit court; that it then and there became a material question as between the parties whether the railroad company had, within the time allowed by law, expended in the actual construction of its road in said township an amount of money equal to the appropriation, and also whether, prior to said time, said railroad had transferred its right, title, and interest in and to said appropriation to the Western Construction Company. It is alleged that said court rendered final judgment in said cause, whereby it adjudged that said railroad company, by expending in the construction of its line of railroad in said township a sum of money in excess of $20,000, had earned said sum of $20,000 local aid voted by the taxpayers of said township; that the intervening petitioner, the Western Construction Company, acquired by assignment the right and interest of said railroad company in said aid; that the board of commissioners enter an order upon its records requiring that said tax be immediately col

lected by the treasurer of said county, as though the same had never been suspended; that the order of said board suspending the tax was void; that the auditor of said county place upon his duplicate said voted aid "of $20,000, together with the proper penalty thereon, and interest thereon, from the 31st day of June, 1881, until collected"; that the treasurer at once proceed, as in the case of delinquent taxes, to collect said aid to $20,000, together with said penalty and interest from the 31st day of June, 1881, and that the treasurer, when the same is collected, shall immediately pay the same to the clerk of the White circuit court for the use and benefit of the Western Construction Company, its assignees or successors. It is further alleged in the petition herein that the petitioners, Barner and others, appealed to this court, and that on issues duly joined said judgment of the White circuit court was affirmed. Then follows the opinion of this court, as the same appears in Barner v. Bayless, 134 Ind. 600, 33 N. E. 907, 34 N. E, 502. For the sake of clearness, we deem it proper to quote the following portion of said opinion: "Many of the questions discussed by counsel in their briefs, when applied to this case, are of no importance whatever. The board of commissioners of Clinton county was not a party to the cross-complaint of Bayless, nor was the county auditor or county treasurer such party. They were not parties to this suit in any sense. It is plain, therefore, that any order the court may have made in this case, in relation to the collection of the tax in controversy, was a mere nullity, for the reason that no party was before the court upon whom such an order could operate. Such order could not affect the appellants, because they had no power to execute it; nor were any orders made by the court affecting them, beyond fixing their liability for the tax which they were seeking to avoid. Nor does the order of the court directing that the tax, when collected, be paid over to the appellee, the Western Construction Company, in any manner affect the appellants. If they are compelled to pay the tax in controversy, it is immaterial to them whether it is paid over to the railroad company or to the construction company which performed the labor of constructing the railroad. Stripped of these immaterial matters, we reach the controlling question in the case, and that is the question as to whether the railroad company had expended, in Center township, in the actual construction of its road, a sum equal to the donation voted by the township. This was a question for trial before the circuit court. As a question of fact, it was hotly contested, and the evidence relating to it was conflicting. The court hearing the evidence reached the conclusion that the company had expended, in the actual construction of its road in Center township, a sum largely in excess of the amount of the donation in controversy. With

this conclusion we have neither the power nor the inclination to interfere. It is claimed, however, by the appellants, that during the progress of the cause the court below committed many errors which prevented them from having a fair trial. It is claimed, first, that the court erred in permitting the Western Construction Company to intervene and become a party to the suit. It would seem to be a sufficient answer to this claim to say that the Western Construction Company was permitted to become an intervener in this case without objection or exception. Had such objection been made, as it was the owner of the subject-matter of the suit, we see no impropriety in permitting it to appear and take such steps as would protect its interests. Such seems to be the recognized practice."

The relator in this case also pleads the proceedings and judgment in certain contempt proceeding which had their origin in the refusal of the members of the board and auditor and treasurer to obey the requirements of said judgment. Said officers were adjudged guilty of contempt, and upon appealing to this court the judgment was reversed. Finally, it is alleged in said petition that in September, 1904, relator filed a certified copy of said proceedings in the case of Barner v. Bayless with the board of commissioners, and demanded performance, which was refused. Relator grounds its demand of a reversal upon the claim that it is entitled to the appropriation under the statutes, upon the judgment of the White circuit court in the cause last mentioned, and upon the proposition that the decision of this court in Barner v. Bayless settled, as the law of the case, relator's ownership of the subjectmatter of the suit, by its declaration upon that point, and by its judgment of affirmance. It does not admit of doubt that in a case of this kind, where the very opinion and judgment of this court is pleaded as an adjudication, we are at liberty to look to the entire record for the purpose of determining what was adjudicated. Denney v. State ex rel., 144 Ind. 503, 42 N. E. 929, 31 L. R. A. 726; Washington, etc., R. C. v. Coeur d'Alene, etc., R. Co., 160 U. S. 101, 16 Sup. Ct. 239, 40 L. Ed. 355; Cluggish v. Koons, 15 Ind. App. 599, 43 N. E. 158; Hancock v. Diamond Plate Glass Co. (Ind. App.) 75 N. E. 659; Poole v. Seney, 70 Iowa, 275, 24 N. W. 520, 30 N. W. 634; Dawson v. Dawson, 29 Mo. App. 521; Dewey v. St. Albans Trust Co., 60 Vt. 1, 12 Atl. 224, 6 Am. St. Rep. 84. There is an especial reason in this case for an examination of the record, and that is that certain utterances of the court in the opinion pleaded are ambiguous. Especially in such a case as this do we assert the right and duty of the court to examine the whole record, that we may know the precise posture of the case and interpret the language of the opinion in the light of the surrounding

facts. As we are thus called on to resort to the record, it must be with whatever result may follow from that examination, for it is an ancient rule of pleading that "that which is apparent to the court, and appears from a necessary implication in the record, need not be averred." 7 Bacon's Abr. 459; Dewey v. St. Albans Trust Co., supra; Sheenan v. Sims, 36 Mo. App. 244. It is settled that a party cannot depart from a record under which he claims or relies. Lowry v. Erwin, 6 Rob. (La.) 192, 39 Am. Dec. 556.

(4)

An examination of the record of Barner v. Bayless, supra, reveals the following facts: The White circuit court had stated in 10 conclusions of law (a special finding having been required) the various elements that went to make up said judgment, and which, therefore, we need not repeat. It was assigned as a ground for a new trial that the assessment of the amount of recovery was erroneous, being too high. It was also assigned as grounds for a new trial that each of the special findings of the court was contrary to the evidence, and that they were not sustained by sufficient evidence. An exception was reserved to the overruling of the motion. The petitioners moved in arrest of judgment upon the complaint of interpleader of the Western Construction Company, which motion was overruled, and exception taken. Among other assignments of error of the appellants in said cause were the following: "(1) That the complaint by way of bill of interpleader of the Western Construction Company does not state facts sufficient to constitute a cause of action; that the court had no jurisdiction of the subject-matter of the action of the Western Construction Company; (12) that the court erred in overruling appellants' motion for a new trial; (13) that the court erred in overruling appellants' motion in arrest of judgment; and (14) that the court had not jurisdiction of the persons of the appellants in the action of the bill of interpleader of the Western Construction Company." The briefs of the appellants in said cause are not on file. There remains on file, however, two briefs, filed on behalf of appellees in said action-the brief of Mr. George R. Eldridge, filed August 31, 1892, and the additional brief of Mr. J. A. Sims, filed October 24, 1892. The brief of Mr. Eldridge indicates that several pages of argument were devoted by appellants in said action to the bill of complaint or interpleader of the Western Construction Company; that the appellants were contending that the court had no jurisdiction of the subject-matter of said petition; that there could be no ownership of the donation by the railroad company or by any one else; and that the board of commissioners was entitled to take stock for the appropriation. Under subdivision G of the brief of Mr. Eldridge it appears that the appellants' counsel were contending that much of the court's finding was not sustained by the evidence or

was contrary to the evidence or outside the issues. Under this subdivision Mr. Eldridge says: "We will examine a few of the objections pointed out. It is claimed that the finding that the appropriation was a donation was erroneous. As we have shown supra, it was a donation, and the court was right in so finding. But, even if otherwise, the appellant can gain nothing by questioning it. They are not interested. According to their own argument, it is wholly immaterial what the finding is as to this, as to any one except the board of commissioners, and they are not parties here and are not bound by the finding. If, legally, they are entitled to take stock, and have not waived their right, they may demand it notwithstanding the finding here made. Appellants should confine themselves to treating their own injuries, not those of others." On page 22 of his brief Mr. Eldridge says: "Again, it is claimed that the amount of the recovery is erroneous, being too high; that only $20,000, without interest or penalty, could in any way be collected. The question does not arise upon this motion [motion for a new trial], and the error, if any, invades no right of the appellants. The board of commissioners is not a party, nor is the auditor or the treasurer, and cannot be bound in this action. If unlawful, the penalty and interest need not be paid; that is a question for debate later." From the brief of Mr. Sims we take the following: "The only issue in this case in which the appellants can have any possible interest is the one we have suggested, viz.: Has the railroad company expended an amount of money equal to said appropriation in the construction of its road in said township? This was the controlling issue, and its determination by the court disposed of all questions in which the appellants could have any possible interest. The residue of said judgment amounted simply to an adjudication of the conflicting rights of the defendants between themselves. There was no averment in the petition that would authorize the court to determine who was the owner of said appropriation. The question could only arise upon some issue presented by the defendants or some of them. The judgment of the court that the appellants were entitled to no relief and that the taxes must be paid was a full adjudication of all matters set forth in their complaint. Their complaint does not aver that they had any interest, equitable or otherwise, in said tax after its collection. If there was any question as to the ownership of said tax, it would, as we have said, have to be presented by some pleading on the part of the defendants, or some of them. This we think the Western Construction Company has done, and had the right to do under section 568 of the Revised Statutes of 1881, which we quote in full: 'Judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants; and it may, when the justice of the case requires it