BONDS-INTEREST-CONSTITUTIONAL LIMITA

TIONS.

Interest is not to be taken into consideration in computing indebtedness as used, either in the constitutional limitation of indebtedness, or in the gravel road law.

[Ed. Note.-For other cases, see Counties, Dig. 150(3), 173(2).] Cent. Dig. §§ 165, 166, 217, 261, 275, 276; Dec.

OF INDEBTEDNESS.

Burns' Ann. St. 1914, § 7732, prohibiting the issue of highway bonds exceeding the 4 per cent. into by the board of commissioners for the buildlimitation, was not violated by a contract entered ing of roads for which no bonds were issued, since such contract was not, and could not be, a liability of the township taxing district until bonds should be issued to pay the contract price. [Ed. Note. For other cases, see Counties, Cent. Dig. 88 261, 275, 276; Dec. Dig. 173(2).]

Appellant had the right to a finding by the 5. COUNTIES 150(3), 173(2) HIGHWAY jury on the question of contributory negligence, uninfluenced by any improper statement. Had the jury found for appellant on that issue, its verdict would have had sufficient support in the evidence, which, as before noted, was close. Whether the verdict actually rendered was influenced by the statement of appellee's learned and expert- 6. COUNTIES 173(2) - BONDS - LIMITATION enced counsel presents, under the facts shown by this record, a question that neither the trial court nor this court could or can determine. The burden was on appellee to show the conduct harmless, but he has failed to do so. Indeed, the task is an impossible one. While it may be that, in ruling on the motion for a new trial, the trial court was of the opinion that the greater weight of the evidence was not with appellant on the issue of contributory negligence, such conclusion does not solve the problem, for appellant had the right to have the evidence weighed by the jury. Whether it was so weighed is not possible of ascertainment, and we are of the opinion that justice demands a new trial of the cause. The conclusion reached renders unnecessary a consideration of the other alleged misconduct relied on by appellant, or of other questions presented for review.

Judgment reversed, with instructions to grant appellant a new trial.

SPENCER and ERWIN, JJ., dissent.

(185 Ind. 669)

BROWN v. GUTHRIE, Auditor, et al. (No. 22723.)

(Supreme Court of Indiana. Dec. 12, 1916.)
1. COUNTIES 150(2) — HIGHWAY BONDS
CONSTITUTIONAL PROVISIONS.
The issue of bonds to pay for gravel roads
built under the gravel road laws is not governed
by Const. art. 13, § 1, limiting indebtedness, as
they do not constitute an indebtedness either of
the township or county.

[Ed. Note. For other cases, see Counties,
Cent. Dig. §§ 165, 166, 216; Dec. Dig.
150(2).]

2. APPEAL AND ERROR 1040(4)-HARMLESS

ERROR-RULING ON DEmurrer.

Where the second paragraph of a complaint was in theory and substance the same as the third paragraph, no error was committed in sustaining

a demurrer thereto.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4091, 4097; Dec. Dig. 1040(4); Pleading, Cent. Dig. § 450.] 3. APPEAL AND ERROR

ERROR-WAIVER.

694(1)—GroundS OF

The sufficiency of the evidence to sustain the findings of the court was waived by appellant's failure to bring with the record the evidence in the cause.

7. COUNTIES

EVIDENCE.

173(2)-BONDS-INJUNCTION—

On an action to enjoin the county auditor from entering on the tax duplicate a certain tax levy made by the board of commissioners to pay bonds issued to build gravel roads in a township and to enjoin the county treasurer from collecting such taxes, the court did not err in basing its findings upon certificate of the state auditor on file when the case was submitted, in considering the total assessed value of the property of the township when the bonds were issued.

[Ed. Note.-For other cases, see Counties, Cent. Dig. 88 261, 275, 276; Dec. Dig. 173(2).]

Appeal from Circuit Court, Huntington County; S. E. Cook, Judge.

Action for injunction by John T. Brown against Harold Guthrie, as Auditor of Huntington County and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. W. Moffett and H. B. Spencer, both of Huntington, for appellant. George M. Eberhart, Sumner Kenner, Fred H. Bowers, and Milo Feightner, all of Huntington, for appellees.

ERWIN, J. Appellant brought an action in the circuit court to enjoin appellee, Guthrie, as auditor of Huntington county, from entering on the tax duplicate a certain tax levy made by the board of commissioners, for the purpose of paying, as they matured, certain bonds issued for the purpose of building certain gravel roads in Clear Creek township in said county, and to enjoin appellee Gill, as treasurer of said county, from collecting such taxes. The complaint was in three paragraphs. The first paragraph proceeded upon the theory that the proposed tax levy was illegal, for the reason that the bonds issued exceeded 2 per cent. of the total taxable property of said township, and was unconstitutional and void as being in conflict

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2915; Dec. Dig. 694(1).] with section 1, art. 13, of the Constitution 4. TRIAL 405(1)—CONCLUSIONS OF FACT—

EXCEPTIONS-EFFECT.

Exceptions to the conclusions of law admit the correctness of the findings of fact. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 963; Dec. Dig.

405(1).]

of this state. To this paragraph a demurrer was sustained. The second and third paragraphs proceeded upon the theory that the bonds for which the levy was made to meet were void as being in excess of 4 per cent.

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

of the taxable valuation of said township, erred in its conclusions of law in holding that prohibited under section 7732, Burns 1914. The court sustained appellees' demurrers to the second paragraph of complaint. Trial was had on the third paragraph of the complaint, and the court made special findings of facts, and stated conclusions of law thereon in favor of appellees, denying injunction and rendering judgment against appellant for costs.

This appeal presents for our consideration the ruling of the court on the demurrer to the first and second paragraphs of complaint, and the conclusions of law on the facts found.

[1, 2] This court has decided that the issue of bonds to pay for gravel roads built under the gravel road laws of this state is not governed by section 1, art. 13, of our Constitution, as they do not constitute an indebtedness of either the township or county. Smith v. Board, 173 Ind. 364, and cases cited on page 377, 90 N. E. 881. The court committed no error in its ruling on the demurrer to the first paragraph of complaint. The second paragraph of complaint being in theory and substance the same as the third, no error was committed in sustaining a demurrer to it. Adams v. Pittsburg, etc., R. Co., 165 Ind. 648, 654, 74 N. E. 991.

[3] Appellant filed a written motion for a new trial, for numerous reasons stated, some of which are statutory grounds for a new trial, and some of which are not. The only ones properly alleged challenge the sufficiency of the evidence to sustain the findings of the court. Appellant has waived this by failing to bring with the record the evidence given in the cause.

the interest coupons attached to the bonds in question should not be considered in determining the total indebtedness of the taxing district. It is generally held that interest is not to be taken into consideration in computing indebtedness as used, either in the Constitution or the gravel road law. Note C to Hagan v. Commissioners' Court, 37 L. R. A. (N. S.) p. 1106, and cases cited; McQuillin, Municipal Corporations, vol. 5, § 2215; Blanchard v. Benton, 109 Ill. App. 569; State ex rel. Ash v. Parkinson, 5 Nev. 15; Epping v. Columbus, 117 Ga. 263, 43 S. E. 803; Dillon, Municipal Corporations, vol. 1, § 205; Finlayson v. Vaughn, 54 Minn. 331, 56 N. W. 49; Stone v. Chicago, 207 Ill. 492, 69 N. E. 970; Durant v. Iowa County, 1 Woolw. 69 (1864), reported in 8 Fed. Cas. p. 117, No. 4,189; 28 Cyc. 1545; 13 Cyc. 395. The court did not err in excluding the interest coupons in determining the indebtedness created by the bonds.

[6] It is insisted by appellant that, in entering into contracts for the building of the other two roads, this created an indebtedness beyond the limitation fixed by section 7732, supra, and that the court erred in its conclusions of law in holding that such contracts did not constitute an indebtedness which should be taken into consideration in fixing the amount of liability. The question here is as to the legality of the bonds issued and the right to levy a tax to pay the same. We are of the opinion that the court was correct in holding that the contract entered into by the board of commissioners, for the building of the other two roads, for which no bonds were issued, did not constitute an indebtedness of the township, which should be considered in determining whether section 7732 had been violated. This contract was not and could not be a liability of the taxing district, which in this case is Clear Creek township, until bonds shall have been issued to pay the contract price for which these roads were to be constructed. The inhibition of the statute is against the issuing of bonds exceeding the 4 per cent. limitation, and the contracts so entered into could not be enforced against the county or township, except in the manner provided by statute, viz. by the issue of bonds and the levy of a tax to pay for same.

[4, 5] The only question remaining for consideration is the correctness of the court in its conclusions of law on the facts found. The findings disclose that in the year 1911, the board of commissioners had pending before it seven petitions for gravel roads in Clear Creek township, to be built under the "three mile gravel road law." That all of said petitions were found to be sufficient, and the roads ordered built. Contracts were made by the board for the building of the same, and bonds issued for the payment of the first five so ordered constructed. The further findings of the court are that the bonds issued, to build the proposed road, together with bonds already outstanding, are in a sum less than "four per cent. of the total assessed taxable valuation of the property of the township." On these findings the court stated his conclusions of law, that the law was with the defendants, appellees, and rendered judgment accordingly. The exceptions to the conclusions of law admit the correctness of the findings of facts. Ray v. Baker, [7] It is insisted that the court erred in its 165 Ind. 74, 83, 74 N. E. 619; Hatfield v. conclusions of law, in that it based its findRooker, 56 Ind. App. 1, 6, 104 N. E. 798; Tuellings upon the assessment rolls of the county v. Homann, 60 Ind. App. 285, 291, 108 N. E. which were on file in the auditor's office of 596. the county, but that at the time the issue of

It is further contended that the law providing for the building of gravel roads of three miles or less is unconstitutional and void, for the reason that it violates section 1, art. 13, of the Constitution. What we have already said on the ruling on demurrer to the first paragraph of complaint disposes of this question.

state auditor as to corporation taxes was not on file in the auditor's office, and were not so filed until August 19th of that year. The certificate of the state auditor is the only evidence of assessments made. This certificate was on file when this case was submitted, and the court had a right to consider it at the time of the trial to ascertain the total assessed valuation of the property of the township at the time the bonds were issued. There being no reversible error presented, the judgment is affirmed.

(185 Ind. 693)

BAKER V. KRIETENSTEIN, Sheriff. (No. 23173.)

(Supreme Court of Indiana. Dec. 19, 1916.) 1. HABEAS CORPUS 72-SUFFICIENCY PETITION-MOTION TO QUASH WRIT.

The sufficiency of the petition for writ of habeas corpus is properly tested by motion to quash the writ.

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 64; Dec. Dig. 72.] 2. HABEAS CORPUS 30(3)—RIGHT TO WRIT -EXISTENCE OF OTHER REMEDY.

issue against the sheriff of said county, alleging the facts as set out above, and averring that the judgment of the circuit court was void for the reason that the court had no power to commit him, appellant, to the jail for a period of more than 60 days, but that he should have been committed to the Indiana State Farm, under the provisions of section 8 of the act of the General Assembly approved March 14, 1913 (Acts 1913, p. 660), being section 9926h, Burns 1914. Upon the filing of the petition duly verified, the superior court ordered the writ, directing the sheriff of said county to produce the body of appellant in court on September 28, 1916, at 9 o'clock a. m. On the date of the return of the writ appellee, sheriff of said county, produced appellant in open court, and thereupon moved to quash the writ. The court sustained the motion to quash, and remanded appellant to the custody of appellee, as sheriff. A motion to quash the writ is the proper proceeding to test the sufficiency of the petition. Edenharter, etc., v. Connor, No. 22892, decided at the present term of this court, 114 N. E. 212; Willis v. Bayles, 105 Ind. 363, 5 N. E. 8.

Where the circuit court had jurisdiction of accused and of the subject-matter, but erroneously sentenced him to jail instead of to the state farm, as required under Burns' Ann. St. 1914, § It is insisted by appellant that the judg9926h, requiring persons of certain ages to be ment of the Vigo circuit court is utterly void, committed to the state farm, and accused did not and that therefore he has a right to his liberappeal or otherwise directly attack the judgment, it became conclusive, and he could not ty, under the writ of habeas corpus. Appelhave a writ of habeas corpus to compel his re-lant insists that the judgment committing lease, since that would be a collateral attack, and Burns' Ann. St. 1914, § 1176, provides that no court shall inquire into the legality of any judgment whereby the party is in custody, or discharge him when the term of commitment has not expired, if committed on any process issued on final judgment of a court of competent jurisdiction.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. 30(3).]

Appeal from Superior Court, Vigo County; James P. Stunkard, Special Judge.

him to jail is void by reason of the provisions of the act of March 14th, supra, which provided that in cases of the character of the one in question the court had no jurisdiction to commit him to jail, but that he should have been committed to the state farm.

[2] Appellee insists that as the circuit court had jurisdiction of appellant and the subject-matter in the original action by which judgment appellant was committed to jail, the judgment was at most erroneous, and that appellant had the remedy of appeal from that judgment if not satisfied therewith, and, not having appealed, that he can

Habeas corpus by Lusco Baker against George W. Krietenstein, Sheriff, wherein defendant moved to quash the writ. From an order quashing the writ, complainant ap-not now attack the same collaterally, which peals. Affirmed.

Charles M. Fortune, of Terre Haute, for appellant. Walker & Blankenbaker, of Terre Haute, for appellee.

ERWIN, J. Appellant, on March 28, 1916, was by the circuit court of Vigo county adjudged guilty of petit larceny on his plea of guilty, and was on said day sentenced to the jail of Vigo county for a term of 150 days, and fined in the sum of $100 and ordered committed to said jail until the fine was paid or replevied. No exceptions were taken to the action of the court at the time, or at any time, and no appeal was ever taken from the judgment so entered.

[1] On September 19, 1916, appellant filed his petition in the superior court of said county, asking that a writ of habeas corpus

this proceeding seeks to do. We are of the opinion that appellee's contention must prevail.

Where a court, having jurisdiction of the subject-matter of the litigation and the parties to the action enters a judgment, that judgment is final, unless appealed from to some court having jurisdiction to review the errors of law arising upon the record. The power to decide includes the power to decide wrong, and an erroneous decision is not subject to collateral attack, irrespective of whether the mistake is one of common, statutory, or constitutional law. Stone v. Elliott, 182 Ind. 454, 466, 106 N. E. 710, and cases cited; Koepke v. Hill, 157 Ind. 172, 176, 60 N. E. 1039, 87 Am. St. Rep. 161.

It is not contended but that the circuit court had jurisdiction of the charge of larceny brought against appellant. If the ques

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

There is only one way known to the law in this state for reviewing errors of law occurring in a trial of a criminal case, and that is by proper exceptions to the ruling of the court and an appeal to the Supreme Court, assigning as error the ruling complained of, [1] The evidence is not in the record, unless the judgment is absolutely void (Wil- hence if the instructions were proper under lis v. Bayles, supra), except perhaps the ex- any evidence properly admitted under the istraordinary remedy of writ of coram nobis sues in the case, no reversal is authorized, (Sanders v. State, 85 Ind. 318, 44 Am. Rep. but on the other hand, if the instructions 29). given were wrong under any state of facts The petition in this cause affirmatively that could be proven under the issues in the

In the case of Welty v. State, supra, this this to say: court said:

"Our conclusion is that whether it be a presumption of malice, or of innocence, it is an administrative assumption of a prima facie character, and that each yields before evidence showing the facts."

In Steinkuehler v. Wempner (1907) 169 Ind. 154, 161, 81 N. E. 482, 485 (15 L. R. A. [N. S.] 673), this court said:

"The material point determined is that the testamentary capacity of the testator must be es