ELLIOTT, C. J. Within the county of St. Joseph are lands which are set apart to the school fund by the act of congress. These lands were sold by the county authorities for $13,750, of which amount one-fourth was paid in cash, and the remainder of the purchase money was secured by mortgage. The whole amount for which the lands were sold was reported, as the law requires, to the superintendent of public instruction, and the county was charged with it. The purchase money was not paid, and the lands were forfeited. The question which we are requested to decide is this: Is the county chargeable with interest on the entire amount of the price of the land, or only upon the amount received in cash? and in each succeeding case we shall be expected to depart further and further from the statute, till the only rule left will be the mere discretion of the court in each particular case." It is a rule of pleading, even in civil causes, that the omission of an averment which the statute makes essential to the statement of a cause of action is not cured by a verdict. Mansur v. Streight, 103 Ind. 358, 3 N. E. Rep. 112, and cases cited. This rule should have special application in criminal pleadings. Society is more interested that even the guilty should be punished according to law than that they should be merely punished. The language of the statute cannot be regarded as merely permissive. It cannot be supposed that the legislature intended to leave it wholly discretionary with the pleader whether or not the omitted averment should be inserted. Such a construction would be trifling with the statute, and would rest upon the assumption that the legislature had no motive whatever in its enactment. Where the public or third persons have an interest in the enforcement of a statute, its terms are to be regarded as mandatory. Nave v. Nave, 7 Ind. 122; End. Interp. St. § 312. The court erred in overruling the appellant's motion in arrest. Judgment reversed. The clerk will make the proper order for the re-room for construction. Where the words of turn of the defendant. (120 Ind. 442) BOARD OF COMMISSIONERS OF ST. JOSEPH COUNTY v. STATE ex rel. MICHENER, Attorney General. (Supreme Court of Indiana. Oct. 29, 1889.) SCHOOL LANDS-PROCEEDS. Under Rev. St. Ind. 1881, § 4346, requiring one-fourth of the purchase price of school land, sold by county authorities, to be paid, with the interest on the residue for one year, in advance, and the residue in ten years, with interest in advance, deferred payments to be regarded as part of the school fund, and reported as such to the superintendent of public instruction, the county is liable for the interest on the whole purchase money, though the purchaser defaults in the payment of the deferred installments, and the land is forfeited to the school fund. The case is governed by section 4346, Rev. St. 1881, which reads thus: "One-fourth of the purchase money shall be paid in hand, and the interest for the residue for one year in advance, and the residue in ten years from such sale, with like interest, annually in advance, and deferred payments shall be regarded as part of the congressional township school fund, and reported as such by the auditor to the superintendent of public instruction." We can discover neither obscurity nor ambiguity in this statute, and there is no a statute are free from obscurity or ambiguity, nothing remains but to enforce them as they are written. We cannot conceive how it is possible to choose words that would more plainly convey the meaning that the unpaid purchase money is a part of the congressional township school fund. The words are, "and deferred payments shall be regarded as part of the congressional school deferred payments go into the fund as part fund," and "shall be reported as such." The and parcel of it. From this conclusion there is no escape, save by striking out the words of the legislature, and substituting others for them; and this no court would dream of doing. Counties are public corporations, and over them the legislative authority is very great and extensive. The legislature, in the exercise of this authority, may undoubtedly charge them with the care of school lands and school funds, and impose upon them hard and unreasonable burdens. The courts canAction by the state ex rel. attorney general not interfere, however much they may doubt against the board of commissioners of St. the policy of the legislative action, unless Joseph county to compel them to pay to the some constitutional limitation is disregarded. irreducible congressional school fund the in- In this instance the legislature empowered terest on the price of certain school lands in counties to sell the land, and commanded the county sold at public sale. The pur- that the unpaid purchase money, as well as chaser of the land defaulted in paying the de- the purchase money paid, should be "referred installments of the purchase money, garded as part of the congressional school and it was contended by the county that from fund." If the court should hold that the that time, as the land itself went into the unpaid purchase money is not part of the school fund, the county ought no longer to fund, it would simply declare that the depay interest on the whole price of the land, ferred payments shall not be regarded as part but only on the cash payment. Judgment of that fund. What the legislature says shall for plaintiff, and defendant appeals. be regarded as a part of the fund is a part of T. E. Howard, for appellant. L. T. Mich-it, and so it must be adjudged, notwithstandener, Atty. Gen., John H. Gillett, and Lucius ing the fact that ill effects and confusion may Hubbard, for appellee. result. If such a result will follow, the Appeal from circuit court, St. Joseph county; DANIEL NOYES, Judge. courts cannot avoid it, for the remedy is with | on which the intestate was a passenger the legislature, and not the courts. Judgment affirmed. (120 Ind. 469) CINCINNATI, I., ST. L. & C. R. Co. v (Supreme Court of Indiana. Oct. 30, 1889.) INJURIES TO PASSENGERS-PROXIMATE CAUSE-IN STRUCTIONS. reached the station of Lambert, a point between the city of Columbus and the town of Hope, the appellant's employes failed and neglected to announce the name of the station, but some one in the car called out, "Hope," as if naming the station. After the train had stopped at Lambert, the intestate, believing it to be the station for which he had taken passage, endeavored to alight 1. The complaint alleged that plaintiff's intes- from the train in the usual manner; and the tate was a passenger on defendant's train on his way to H.; that, when the train reached L., de- employes of the appellant, without giving fendant's employes failed to announce the name any warning or notice, carelessly and negliof the station, but some one in the car called out gently caused the train to be suddenly start"H.," as if naming the station; that, after the ed; and the intestate, without any fault on train stopped at L., plaintiff's intestate, believing it to be his station, endeavored to alight, and de- his part, was thrown violently from the fendant's employes, without giving any warning platform of the car on which he was standing or notice, carelessly and negligently caused the onto the track. The fall rendered him untrain to be suddenly started, and the intestate, conscious, and of this the appellant had without his fault, was thrown violently from the car-steps onto the track. Soon after, and while knowledge, as well as of its cause. intestate was on the track in a dazed and par- after the occurrence, and while the intestate tially unconscious condition, at a point 70 rods was upon the appellant's track in a dazed and from L., defendant's employes in charge of a passenger train, and having knowledge of the fact partially unconscious condition, at a point of his fall from the train and his condition in 70 rods distant from Lambert, the appellant's time to have avoided the injury, negligently, and employes in charge of a passenger train, and without any signal or warning of the approach of the train, caused the train to run upon him, having knowledge of the fact of his fall from killing him, without any fault or negligence on the train and his condition in time to have his part. Held, that the complaint stated a cause avoided injury to him by the exercise of orof action. The intestate was not a mere tres-dinary care, negligently, and without giving passer; and as he was known to have been thrown on the track, and rendered unconscious, in alight- any signal or warning of the approach of the ing from his train, it was defendant's duty to use train, or taking any precaution to avoid incare to prevent injury to him from its own trains.juring him, caused the passenger train to run 2. The wrong of defendant in leaving its injured passenger on the track, exposed to peril, without mind enough to care for himself, was the proximate cause of his death. * * an 3. It was proper to instruct the jury that, "to establish the charge of willfulness, * actual intent to do the particular injury alleged need not be shown; but if you find, from all the evidence, that the misconduct of the defendant's servants was such as to evince an utter disregard of consequences, so as to inflict the injury complained of, this may of itself tend to establish willfulness." 4. It was not error to refuse instructions requested by defendant embodying the theory that the occurrence at L. should be excluded from consideration, as from that occurrence there was reason for inferring that the wrong which brought intestate on the track and into danger was that of defendant, and it also supplied ground for inferring that defendant's employes in charge of the train which killed intestate knew his condition, knew what caused it, and knew he was exposed to danger. 5. The court having instructed the jury that if intestate's presence on the track, and his injury, were owing to his drunken condition, there could be no recovery, it was not error to refuse to repeat the instruction. Appeal from circuit court, Bartholomew county; NELSON R. KEYES, Judge. S. Stansifer, for appellant. Geo. W. Cooper and Chas. S. Baker, for appellee. ELLIOTT, C. J. The material facts stated in the second paragraph of the appellee's complaint are these: On the 18th day of April, 1885, Uriah Holland, the appellee's intestate, entered a train of the appellant's, which carried both passengers and freight, at the city of Columbus, and paid his passage to the town of Hope, a regular station on the line of the appellant's road. When the train Soon upon him, thus causing his death, without any fault or negligence on his part. If the intestate had been on the track through, no fault of the appellant, and without knowledge on its part of his condition, no action could be maintained; but he was on the track through the fault of the appellant, and it did know of his condition. The rule applicable to cases where persons trespass on the company's track cannot govern in such a case as this. Even if it should be conceded that there was no breach of duty on the part of the appellant in failing to announce the station, still there was negligence in starting the train with a sudden jerk. Railroad Co. V. Crunk, 21 N. E. Rep. 31; Railroad Co. v. Horst, 93 U. S. 291; Doss v. Railroad Co., 59 Mo. 29; Andrist v. Railroad Co., 30 Fed. Rep. 345. But we might go further, and concede that there was no negligence in starting the train, and still we should be required to hold that a cause of action is stated, inasmuch as the fact that the intestate was known to have been thrown to the track in an effort to alight from the train, and rendered unconscious, made it the duty of the appellant to use care to prevent injury to him from its own trains. A railway carrier of passengers has no right, where care and diligence can prevent it, to leave a helpless passenger who has fallen from one of its trains in a situation of known danger. If a passenger, without fault on his part or that of the carrier, but as the result of a pure accident, should be thrown from the train upon the track, and rendered helpless, it would be the duty of the railway carrier, if the facts were known to it, to use proper care and diligence to prevent injury | cast, and the railway carrier cannot neglifrom passing trains. gently suffer harm to come to him while he The appellant was bound to know that is a passenger. It owes him some duty, trains were running upon its own road, and which, at its peril, it must not omit. It is it was under a duty to the passenger who was not to answer for his folly, but for its own thrown upon its track to take steps to pre- breach of duty. Railroad Co. v. Weber, 33 vent injury to him from the danger which it Kan. 543, 6 Pac. Rep. 877; Railway Co. v. knew he was likely to incur from its trains. Valleley, 32 Ohio St. 345. Here, the drunken It does not matter that the injury which act-condition of the deceased was not the cause ually occurred was not foreseen; it is enough of his injury; for, as the complaint avers and that it was such as might naturally result. the demurrer admits, the cause of his injury Billman v. Railroad Co., 76 Ind. 166; Dunlap was the carrier's breach of duty, and for that v. Wagner, 85 Ind. 529; Railroad Co. v. breach of duty the carrier is answerable. It Wood, 113 Ind. 544-566, 14 N. E. Rep. 572, is a just and beneficent principle, running and 16 N. E. Rep. 197, and cases cited; Hill through all the cases, that a railway company v Winsor, 118 Mass. 251; Lane v Atlantic must do what humanity requires, where it Works, 111 Mass. 136. "It is not necessary, "acts with knowledge of another's helpless said the court in the case last named, "that condition. Railroad Co. v. Weber, supra; injury in the precise form in which it in fact | Railway Co. v. Valleley, supra; Weymire v. resulted should have been foreseen. It Wolfe, 52 Iowa, 553, 3 N. W. Rep. 541; Railneeds no argument to demonstrate the truth way Co. v. State, 29 Md. 420; Walker v. Railof the proposition that danger must be pre- road Co., L. R. 2 Exch. 228; Swazey v. Mansumed from passing trains, if one in a state ufacturing Co., 42 Conn. 556; Railroad Co. v. of bewilderment is left upon the track. A Reisner, 18 Kan. 458; Railroad Co. v. Taft, 28 long line of cases affirms that one who goes Mich. 289, (opinion of COOLEY, J.;) Railroad upon a track, even with mental and physical Co. v. McMurray, 98 Ind. 358; Railroad Co. faculties undiminished, is in fault because he v. Phillips, 112 Ind. 59, 13 N. E. Rep. 132. enters a place of danger; and the one who If, let it be supposed for illustration, a man unlawfully puts another in such a place does should be seen bound to the track in time to a wrong, and is precluded from averring that avoid running upon him, it would certainly the injured person was where he had no right be an actionable wrong to run a train upon to be. Here, the carrier knowingly left its him. And the case made by the complaint passenger upon the track, knowing, also, that differs from the supposed one only in degree; injury from a fall from its train had impaired for, if the man on the track is so helpless his mental faculties; and it cannot be held from mental incapacity as not to be conscious blameless, and its passenger declared a tres- of his acts, and this is known to the railway passer. The wrong of the carrier in leaving company, it is its duty to use reasonable care its injured passenger on the track, exposed to prevent injury to him. In such a case the to great and known peril, without mind presumption that the man will leave the enough to care for himself, was the proxi-track cannot apply, although it would apply mate cause of his death. The case is strong- if his condition were unknown to the emer, not weaker, in the fact that those in ployes of the company, or had not been caused charge of the train which ran upon him were by them. In this instance the man was a pasinformed as to his misfortune and his inju-senger; and his presence on the track, as well ry, and the two acts of negligence combined as his incapacity to avoid danger, was the in one efficient cause; and the effect which might naturally have been expected, did, in fact, result. The concurring wrongs blended in one strong unity, producing a legal tort for which the wrong-doer must make compensation. Railroad Co. v. Crist, 116 Ind. 453, 19 N. E. Rep. 310; Railroad Co. v. Pitzer, 109 Ind. 179, 6 N. E. Rep. 310, and 10 N. E. Rep. 70. If, as counsel tacitly assume, it were true that Holland's misfortune was due solely to his own wrong in voluntarily becoming intoxicated, we should have a very different case. We should, if such were the case, hold the paragraph of complaint in which appears the statement that he was intoxicated to be insufficient. This we should do, for the reason that we are satisfied that a carrier is not bound to protect a drunken man from the consequences which result from his own folly or wrong. Welty v. Railroad Co., 105 Ind. 55, 4 N. E. Rep. 410; McClelland v. Railroad Co., 94 Ind. 276; Railroad Co. v. Sullivan, 81 Ky. 624. But a drunken man is not an out result of the carrier's negligence. In no sense was he a mere trespasser; for by the wrong of the railroad company he was thrown upon the track, and there left in no condition to care for himself. Among the instructions given by the court is this: "To establish the charge of willfulness as set out in the fourth paragraph of the complaint, I instruct you that an actual intent to do the particular injury alleged need not be shown; but if you find, from all the evidence, that the misconduct of the defendant's servants was such as to evince an utter disregard of consequences, so as to inflict the injury complained of, this may of itself tend to establish willfulness." In our judgment, this instruction expresses correctly an abstract rule of law. Recklessness reaching in degree to an utter disregard of consequences may supply the place of a specific intent. Palmer v. Railroad Co., 112 Ind. 250, 14 N. E. Rep. 70; Brannen v. Gravel Road Co., 115 Ind. 115, 17 N. E. Rep. 202; Railroad Co. v. Wheeler, 115 Ind. 253, 17 N. E. Rep. 563. (121 Ind. 331) The appellant's theory that the occurrence | made upon the instructions, it is that they at Lambert's Station must be excluded from are too favorable to the appellant, or they place consideration is embodied in several instruc- too much stress upon the conduct of the pertions asked, but refused. In refusing these sons in charge of the train which killed Holinstructions there was no error. The occur-land. We have considered all the questions rence at that place, as is evident from what argued by counsel, but we do not deem it has been said, exerted an important influence necessary to discuss them in detail, for the upon the case, even if appellant's general questions we have discussed are those which theory were correct; for from it there was arise in the case, and control its decision. reason for inferring that the wrong which Judgment affirmed. brought the intestate upon the track, and into danger, was that of the appellant, and it also supplies ground for the inference that the apCITY OF ELKHART . WICKWIRE et al.1 pellant's employes in charge of the passenger train which killed Holland knew his con(Supreme Court of Indiana. Oct. 30, 1889.) dition, knew what caused it, and knew that ASSESSMENT FOR SEWERS-ORDINANCES. he was exposed to danger. It warranted, at 1. In an action to annul and enjoin assessments least, the inference that he was not a mere which the common council of defendant had made against complainants' property, on account of the trespasser. But, more than this, that occur- construction of certain sewers in the streets of the rence may well be regarded as the cause of the city, it appeared that the sewers were constructed unfortunate consequences which culminated under authority of Rev. St. Ind. § 3106, specifica in Holland's death. It is not, of course, ment during any one year to exceed 10 per cent. of tion 43, the proviso of which forbade an assessproper to affirm, in the instructions, as mat- the assessed value of the property to be affected. ter of law, that it should be so regarded, but Held that, even if the assessment exceeded 10 per it was proper that, as matter of fact, it should cent. of the assessed value, the entire assessment receive consideration by the jury. On the per cent., and the complainants, not having paid is not void, but only so much as is in excess of 10 other hand, it would have been error to as- or offered to pay all except the excess, cannot sert, as matter of law, that what occurred at complain thereof in a collateral proceeding. Lambert was not the proximate cause of the ing to the construction of drains, sewers, and cis2. Rev. St. Ind. § 3106, specification 43, relatinjury. If, as the jury might well have in- terns, is not limited nor widened by act April 13, ferred, the negligent conduct at Lambert was 1885, § 1, (Elliott's Supp. § 753,) relating to street the cause of Holland's death, then the con-improvements and the collection of assessments duct of those in charge of the train which killed him cannot be assigned controlling struction of sewers were never published, does force. If the intestate's death was the prob- not relieve complainants of liability on assessments able result of the wrong at Lambert, the for such sewers, as the statute for the incorpora tion of cities makes no provision for publishing orright of action was complete, and the defend-dinances except such as are penal in their charant liable for the legal consequences of that therefor. 3. The fact that the ordinances for the con acter. 4. As the ordinances for the construction of 5. Although the ordinances did not provide in whose name the precepts might issue, such prement by the city not having discharged the assesscepts might issue in the name of the city, the payments as against the property holder, and the money being due to the city. wrong. If death was the result, then for the sewers provided how the assessments should causing death the appellant is responsible. be made and the proportion to be paid by the propAs strongly as it could well be done, the erty holder and by the city, and declared the ascourt directed the jury that if Holland's pres-sessments liens on the property, the fact that the ence on the track, and his injury, were owing of its general fund worked no prejudice to comwork was completed and paid for by the city out to his drunken condition, there could be no plainants. recovery; and the fact that this direction was not repeated does not give appellant just reason to complain. It is a general rule that instructions need not be repeated; and this rule disposes of many of the questions argued by counsel. Insurance Co. v. Buchanan, 100 vided in Rev. St. Ind. § 3163, relating to street im6. That the property was not assessed as proInd. 63. We do not hold, or mean to hold, provements, is immaterial, as section 3106, under that if the appellant had been free from fault which the improvement was made, provides that at Lambert, the notice of Holland's condi- the estimated cost and assessment should be made tion would have required it to run its trains on the property benefited in such equitable manso slowly as to avoid the possibility of injur-er as we common council might deem just. ing him. On the contrary, we hold that the wrong which produced his mental incapacity, and caused him to wander along the track in a dazed condition, is the one which constitutes the chief element of the right of recovery. The instructions of the trial court do not place the right of recovery upon the acts of those in charge of the train which ran over Holland, but they do clearly assert that if his condition was caused by the negligence of the defendant at Lambert, and that his presence at the place of danger was the result of that condition, the appellee is entitled to recover. If there is any criticism at all to be the 7. Whether the sewers constructed by virtue of the ordinances were necessary and proper was a matter within the discretion of the common coun cil. Appeal from circuit court, Elkhart county; JAMES D. OSBORNE, Judge. Perry L. Turner and Baker & Defrees, for appellant. H. C. Dodge, for appellees. BERKSHIRE, J. This is an action to annul and enjoin certain assessments which the common council of the appellant has made against the different properties owned by the appellees. The complaint, in brief, is as follows: That the common council enacted an 1 Rehearing denied, ordinance for the construction of a sewer any of the expense of said work against the along one of its streets known as "Second appellees or their property. That on said day, Street," from a certain named point on the without in any manner notifying the appellands owned by the Lake Shore & Michigan lees, or without any precedent publication of Southern Railway Company to the St. Joseph said ordinances, or without giving the apriver. That the ordinance was duly enacted, pellees or other interested citizens an opporand, as we understand the complaint, there tunity to be heard as to any of the matters is no objection made to the validity of the or- involved in the construction of said sewers dinance, but the cause of complaint is that or the matter of said assessment, the said the ordinance was never published, and committee made its report to the said comtherefore the appellees were uninformed as mon council, and apportioning to each piece to its enactment and contents. That after of property the amount that should be asthe passage of the ordinance, and on the 7th sessed against it because of the accruing benday of October, 1884, and before any esti-efits on account of the construction of said mate of the cost of the improvement, and sewers. That the report was approved, and before having ascertained that its cost would the amount as apportioned by the committee not exceed 10 per cent. of the assessed value assessed against each of said several pieces of the real property to be affected, the appel- of property by resolution adopted by said lant entered into a contract for the construc- council, nine of the members of said council tion of said sewer, a copy of which is embod- voting in the affirmative and three in the ied in the complaint. That the work was negative. That on the 14th day of April, fully completed on the 13th day of May, 1885, 1886, the said common council directed the accepted by the appellant, and fully paid for city treasurer to proceed with the collection out of its city treasury. That, at the time of said assessments. That the several assessthe work was completed and paid for, no ments are unjust and unequal as between the estimate of its costs had ever been made, and several appellees, and as between them and the appellees had no notice that the city in- other persons who are not parties to the actended to assess the appellees for its reim- tion, and are not based on a just and equitabursement. That on the 1st day of June, ble assessment of the expenses incurred and 1885, the city council of the appellant duly benefits to accrue from said improvement. enacted another ordinance for the construc- That the cost of said sewers and the assesstion of other and different sewers than said ment against the property of the appellees Second-Street sewer. That the description each and severally exceeds a sum equal to 10 of the property declared in said ordinance to per cent. of the valuation for taxation. That be benefited by said last-mentioned sewer in- those of the appellees who own property on cluded all the property bordering upon or in said Second street which is not situated upon any way benefited by the Second-Street sew- or abutting said lateral sewers are assessed er, all of which was sufficiently drained at the for the costs of the construction of said Sectime by the said Second-Street sewer. This ond-Street sewer, as well as for the construcordinance is also embodied in the complaint, tion of said lateral sewers; and that those of after which is the following averment: them who own property abutting on said lat"That, although it was recorded as set out, eral sewers, and not abutting on said Secondthe following amendment was made to it: Street sewer, are assessed for the cost of That said sewer-pipes west of Second street constructing said Second-Street sewer, as extend to Third street, and that they be laid well as said lateral sewers. That said Secin the center of each alley from Sycamore ond street is 250 rods long, running north street up to and including the first alley and south, and said Second-Street sewer exsouth of Harrison street;"" but nothing fur- tends the full length thereof. That said latther is alleged with reference to the amend-eral sewers connect with said Second-Street ment. That on the 30th day of June, 1885, sewer every 25 rods east and a like distance the appellant let the contract for the con- west from said Second-Street sewer. struction of all of said sewers. That at no no ordinance, by-law, tax authorized by law, time prior to the letting of said contract had resolution, or action of said appellant or its the appellant caused any estimate to be made common council, or other officer thereof, than of the cost of the improvement, and had in above fully set forth, has ever been passed no way ascertained that the cost thereof would or taken by which the appellant clains the not exceed 10 per cent. of the assessed value right to said assessment and tax against apof the property to be benefited thereby; and pellees and their property. That said asthat the contractors fully completed said sew-sessment was not made upon the basis of the ers on the 1st day of September, 1885, and whole length of said street so improved at the same were paid for out of the general a uniform price, estimated per running foot; revenue of the city. That on the 10th day and said appellant has not sought, and is not of March, 1886, by resolution the said com- now seeking, to enforce said assessments by mon council of said city appointed three of the issuance of a precept to the contractor, its members to make an estimate of benefits but has ordered its treasurer to enforce said resulting to property from the construction assessments for its reimbursement. That of said sewers. That at no time prior to the appellant has no right to claim, mainMarch 10, 1886, had any committee of said tain, or assert said lien against the property council taken any action towards assessing of the appellees. That all of said sewers That |