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office holder, such restriction constitutes a limitation on the general power to remove at will. Throop on Public Officers, § 364; Roth v. State, 158 Ind. 242-253, 63 N. E. 460. Section 8692, Burns 1908, as amended in 1909 (Acts 1909, p. 312), provides that the city attorney "shall be appointed by the mayor, shall hold office as herein before provided, except in the cities of the fifth class the city attorney shall be appointed by the common council." It is appellant's contention that the phrase "shall hold office as herein before provided" has reference to section 8682, subd. 7, Burns 1908, which authorizes the mayor "to appoint the heads of departments, as hereinafter created, in cities of the first, second, third and fourth classes, and to appoint, in cities of the fifth class, a city marshal, chief of the fire force and street commissioner, all of which appointees shall hold office until their successors are appointed and qualified: * Provided, that the mayor may at any time suspend or remove from office any or all of such heads of departments or other persons, whether appointed by him or by any of his predecessors, by notifying them to that effect and sending a message to the council stating in writing his reasons for such removal." Appellant contends that the word "mayor," as therein used, should be construed to mean "appointing power," and thus require the common council in cities of the fifth class to assign written reasons for its action before removing the city attorney. We cannot concur in such construction. Even though it is conceded that the phrase "shall hold office as hereinbefore provided" has reference to section 8682, supra, it does not follow that the provisions of said section have application to any officers other than those therein mentioned. The doctrine that "including one excludes all others" is applicable, and we must construe the language of the two sections to mean that city attorneys in cities of the first, second, third, and fourth classes may be removed by the mayor in accordance with section 8682, but that no method is "hereinbefore provided" for the removal of the city attorney in cities of the fifth class, and, under the constitutional provision, he therefore holds office at the pleasure of the appointing power. In cities of the first four classes a department of law is specifically established, and the appointment and removal of the city attorney is provided for, but in cities of the fifth class no department of law is created, and the employment of a city attorney is virtually left to the discretion of the common council. In the absence of a particular provision to the contrary, it must follow that his removal is equally within the discretion of such council.

Judgment affirmed.

SMITH V. GEORGE. (No. 22,384.)1 (Supreme Court of Indiana. Oct. 8, 1913.) 1. MUNICIPAL CORPORATIONS (§ 111*)—STATUTES (§ 64*)-ORDINANCES-PARTIAL INVA

LIDITY.

If one section of a legislative act or a muother sections or parts and upheld as valid, it nicipal ordinance can be separated from the is the duty of the court to do so.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 245-256; Dec. Dig. § 111;* Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. § 64.*]

2. MUNICIPAL CORPORATIONS (§ 111*)-OrdiNANCES-PARTIAL INVALIDITY-LIQUOR LI

CENSES.

The Proctor Law (Laws 1911, c. 119) § 23, fixes the fee for city license for the sale of intoxicants at $200 but provides that the cities may by their common councils increase the fee to $500, if done within 30 days from the taking effect of the act. The act went into effect March 4th, and on March 20th the city of Gary passed an ordinance, the first section of which fixed the license fee at $500; the other sections providing a penalty for selling without a license and for the two weeks' publication required by statute for penal ordinances before they can take effect. Burns' Ann. St. 1908, § 8337, provides for a penalty for the sale of intoxicating liquors without a license. Held that, as the penal provisions of the ordinance in question can be separated from the rest of them, that part of the ordinance fixing or increasing the license fee is valid, irrespective of any publication having been enacted within the time limited.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 245-256; Dec. Dig. § 111.*1

Appeal from Superior Court, Lake County; Lawrence Becker, Judge.

Proceeding by Jesse S. Smith against Theodore George. From a judgment overruling a demurrer to the answer, plaintiff appeals. Reversed, with directions.

John M. Fox, of Gary, and Lincoln V. Cravens, of Hammond, for appellant. Harris & Ressler, of Gary, and John H. Gillett and Hanan, Ewbank & Hanan, all of Indianapolis, for appellee.

ERWIN, J. The appellant brought this action against appellee to revoke a license to sell intoxicating liquors, issued to appellee, because of failure of appellee to comply with an ordinance of the city of Gary fixing the license fee at $500. The appellee filed five paragraphs of answer but afterwards withdrew the first. The appellant demurred to the remaining paragraphs of answer, which demurrer was overruled. The only question presented for review is the ruling of the court on the demurrer to the answers of appellee, which answers challenge the validity of the ordinance of said city fixing the license fee at the sum of $500.

[1, 2] The acts of the General Assembly for the year 1911 (section 23 of chapter 119, p. 262), known as the Proctor law, fixes the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

fee for city license at the sum of $200 for the class of cities to which Gary belongs but provided that cities by their common councils might increase the fee to $500, if done within 30 days from the time of the taking effect of the act. The act took effect March 4, 1911. The city of Gary, on the 20th day of March, 1911, passed an ordinance fixing the license fee at $500, which said ordinance, in addition to fixing the license fee, in the first section thereof includes six other sections providing for the regulation of the sale of intoxicating liquors in said city, repealing all ordinances in conflict therewith. Section 7 is as follows: "This ordinance shall be published once each week for two consecutive weeks in a newspaper of general circulation printed and published in the city of Gary, and shall be in full force and effect from and after its passage and publication as herein provided." There is some contention that the ordinance was introduced at a special session and that it was not regularly passed, but we think the proceedings of the council were regular.

It is contended by appellee, and his answer so alleges, that, this ordinance being a penal one, publications should be had thereof before the same could take effect and be enforceable.

In the ordinance in question section 1 fixes the fee; section 4 fixes the penalty-neither of which is dependable upon the other for its validity. It is an universal rule of construction that, if one section of a legislative act or city ordinance can be separated from the other sections or parts and upheld as valid, it is the duty of the court to do so. City of Indpls. v. Bieler, 138 Ind. 30, 36 N. E. 857; State v. Blend, 121 Ind. 514, 23 N. E. 511, 16 Am. St. Rep. 411; Clark v. Ellis, 2 Blackf. 8; 11 Am. & Eng. Enc. Law, 610. Section 1 of this ordinance fixes the license fee at $500 for said city without referring to any penalty and is in no way connected with the penalty clause of said ordinance and would be a valid enactment without a penalty

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two consecutive weeks, in a newspaper of general circulation printed in said city."

The court erred in overruling the several demurrers to the answers of the appellee.

This cause is reversed, with instructions to the court below to sustain the demurrers to each paragraph of answer.

CLEVELAND, C., C. & ST. L. RY. CO. v.

RAILROAD COMMISSION OF INDI-
ANA. (No. 22,134.)1

(Supreme Court of Indiana. Oct. 9, 1913.) COMMERCE (§ 8*)-INTERSTATE COMMERCEEQUIPMENT FOR TRAINS.

without automatic couplers, the penalty for the Where a railroad company operates a train benefit of the state provided by Burns' Ann. St. 1908, § 5279, may be recovered, though the train violating the state regulation was an interstate train, and Congress, under its power over interstate commerce, has fixed a penalty for the same act.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.*]

Appeal from Superior Court, Marion County; Charles J. Orbison, Judge.

Action by the Railroad Commission of Indiana against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Leonard J. Hackney, of Cincinnati, Ohio, and Frank L. Littleton, of Indianapolis, for appellant. Thomas M. Honan, Atty. Gen., and Jas. E. McCullough, of Indianapolis, for appellee.

COX, J. Section 2 of the act of 1907 (Acts

1907, p. 186; Burns' 1908, § 5279), being an act designed to promote the safety of employés and travelers by compelling common carriers by railroads and interurban railroads in this state to provide certain safety appliances, reads as follows: "That it shall be unlawful for any such common carrier to haul, or permit to be hauled or used on its

ped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." Section 10 of the act (Burns' 1908, § 5287) provides a penalty of $100 for each violation of the act, to be recovered in a suit brought by the Railroad Commission' for the use of the state.

line, any locomotive, car, tender or similar The statute of Indiana provides for a penal-vehicle used in moving state traffic not equipty for the sale of intoxicating liquors without being licensed according to law. Burns' 1908, § 8337. Section 1 of the ordinance would be valid and operative without the same having been published, as it is only penal ordinances that require publication. The ordinance in question was passed March 20, 1911, and was published March 24th and March 31st. While it is not necessary to the legality of section 1 to decide whether the publication was a legal one, yet it is questionable whether the publication as had is not in conformity with the requirements of the law.

The statute requiring publication of penal ordinances reads as follows: "Every ordinance imposing a penalty or forfeiture for the violation thereof shall, before the same shall take effect, be published, once each week, for

Appellant is a railroad corporation engaged in interstate commerce in five states, one of which is Indiana. This action was brought by appellee against appellant to recover the statutory penalty for permitting a car carrying intrastate freight to be moved over its line in this state without being equipped with automatic couplers, as provided by section 2, supra. The train in which the car not so equipped was being hauled

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

from one point to another, both within this, and others, was constructed under the prostate, was an interstate train, originating in the state of Ohio, and destined, across this state, to states beyond our borders to the From a judgment awarding a penalty provided by the statute, appellant brings this appeal, and presents the single contention that, as Congress under its power to regulate interstate commerce has covered the same field, and provides a penalty for violations of its provisions requiring automatic couplers, the state statute must fall and has no force whatever. The question presented has recently been given thorough consideration by this court in a case involving a failure on the part of a railroad to provide grabirons as provided by another section of the act of 1907, and was decided against appellant's contention. Southern Railway Company V. Railroad Commission (1913) 100 N. E. 337. | On the authority of that case, the judgment in this is affirmed.

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The owner of land, part of which has been assessed for benefits occasioned by the construction of a public drain, under the provision of Laws 1907, c. 252, which drain did not touch the land, has a right to enter upon adjoining lands owned by one of the petitioners for the drain for the purpose of constructing lateral drains from the part of the lands assessed as having been benefited to the public drain, and cannot be convicted of criminal trespass, under Burns' Ann. St. 1908, § 2280, for such entry. [Ed. Note.-For other cases, see Drains, Cent. Dig. 66; Dec. Dig. § 62.**]

Appeal from Circuit Court, Johnson County; Wm. E. Deupree, Judge.

Richard A. Morris was convicted of a trespass upon the lands of another, and he appeals. Reversed, with directions.

William Featherngill and Ivory J. Drybread, both of Franklin, for appellant. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, for the State.

MORRIS, J. Appellant was charged, by 'information, with an alleged trespass on the lands of one Huffman, in violation of section 2280, Burns 1908. A trial by the court resulted in a judgment of conviction.

Appellant's motion for a new trial assigned the insufficiency of the evidence to support the finding. Clause 9, § 2158, Burns 1908. Overruling this motion is here assailed as erroneous. There is no conflict in the evidence, and the facts are as follows: For years Huffman has owned a 39-acre tract of land, and appellant has owned a 41-acre tract adjoining it on the north. In 1910 a public tile drain, petitioned for by Huffman

visions of the drainage act of 1907. Acts 1907, p. 508. This drain was constructed through Huffman's tract, entering it near the northwest corner thereof, and extending through it in a southeasterly course, without touching appellant's tract. On the line dividing the two tracts was a partition fence. A little north of the fence was a small pond, three rods in diameter, on appellant's land. This was surrounded by a small tract of low land, extending across the dividing line on Huffman's tract. Between this low land and the public drain there was a small elevation. Before the construction of the public ditch there was no practical outlet for the drainage of the little pond. One acre of appellant's tract (evidently that embracing the pond) was assessed as specially benefited by the construction of the public drain. In March, 1911, appellant commenced to dig a small tile ditch from the pond on his land to the public drain. The course of this ditch was in practically a straight line from the pond to the nearest point of contact with the public drain. Appellant entered on Huffman's tract, and partially constructed the lateral, after Huffman had forbidden him to do so. The result was this prosecution.

Appellant contends that he had a lawful right to enter on Huffman's land to construct the ditch from the public drain to his land that was assessed as specially benefited, regardless of the consent of Huffman. In our opinion this contention should prevail.

The Attorney General calls our attention to Drake v. Schoenstedt (1897) 149 Ind. 90, 48 N. E. 629. 48 N. E. 629. That case in no wise conflicts with our holding here, for there, while the appellee had only a tract of two acres that was estimated as benefited, he was attempting to collect water from another large tract of land and empty it into the public drain. Here appellant was not attempting to burden the public drain with water collected from land not estimated as benefited. He was simply exercising his right to ditch his land that was assessed for the construction of the public drain. Unless it be assumed that an owner may lawfully construct lateral ditches draining his land assessed for the construction of a public drain, it would be difficult in most cases to show any special benefits to land not touched by a proposed system of public drainage. Lipes v. Hand (1885) 104 Ind. 503, 508, 1 N. E. 871, 4 N. E. 160; Culbertson v. Knight (1889) 152 Ind. 121, 52 N. E. 700.

There was no evidence to sustain the charge contained in the information, and the court erred in overruling appellant's motion for a new trial.

Judgment reversed, with instructions to sustain said motion.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

(180 Ind. 178)

KRAMER et al. v. FISHBACK et al.
(No. 22,020.)

(Supreme Court of Indiana. Oct. 7, 1913.) 1. DRAINS (§ 31*)-EFFECT-WAIVER OF No

TICE.

Objectors in a proceeding to establish a drain all having appeared and filed their remonstrances, they thereby waived all defects in the service of notice of the proceeding. [Ed. Note. For other cases, see Drains, Cent. Dig. §§ 29, 53; Dec. Dig. § 31.*]

2. DRAINS (§ 32*)-ESTABLISHMENT-DRAINAGE COMMISSIONERS-REPORT-FILING. Where drainage commissioners did not file their report until nearly a month after the date fixed, when a motion to dismiss therefor was denied, and the court referred the report back to them, with directions to refile it on a subsequent date, there was no harmful error, since the commissioners' failure should not work prejudice to the petitioners, and there was no showing that the objectors were injured.

[Ed. Note.-For other cases, see Drains, Cent. Dig. § 30-33; Dec. Dig. § 32.*] 3. APPEAL AND ERROR (§ 757*)-NEW TRIAL

MOTION-REVIEW-BRIEFS.

Error in overruling motion for a new trial is not reviewable, where neither the motion nor the substance thereof is set out in the brief.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] Appeal from Circuit Court, Spencer County; W. D. Robinson, Special Judge.

Petition by Florentine Fishback and others for the establishment of a drain, to which Karl W. Kramer and others filed objections. From a judgment overruling the same, objectors appeal. Affirmed.

F. A. Heuring, of Rockport, for appellants. Arch Stevenson, of Rockport, for appellees.

SPENCER, C. J. This is an appeal from the judgment of the Spencer circuit court, rendered on May 3, 1911, establishing a certain drain in Luce and Ohio townships in Spencer county, under section 6140 et seq., Burns 1908 (Acts 1907, p. 508). The petition was filed on May 8, 1907, service had and notice given. On September 2, 1907, the petition was regularly docketed as an action pending. On September 18, 1907, all of the appellants appeared to said action, and filed a remonstrance against the construction of such drain. On January 24, 1910, appellants filed a motion to dismiss the action because of alleged defective notice. This motion was overruled, and appellants now charge error in such ruling.

Sunier v. Miller (1886) 105 Ind. 393, 4 N. E. 867.

[2] It is next contended by appellants that the trial court erred in overruling their motion to dismiss "the report of said drainage commissioners filed on the 13th day of May, 1910, and the petition herein filed and the proceedings in this cause," for the reason that the drainage commissioners did not file their report on April 4, 1910, the date fixed by the court for the filing thereof. This motion was overruled, and the report of the commissioners was, by the court, referred back to them, and they were directed to refile their report on September 26, 1910, which was done. We can see no error therein which was harmful to appellants. The failure of the commissioners to perform their duties should not work to the prejudice of the petitioners. Bohr v. Neuenschwander (1889) 120 Ind. 449-454, 22 N. E. 416. And especially should this be the rule where there is no affirmative showing that such failure on the part of the commissioners was caused by the appellees or was harmful to appellants.

Appellants further contend that reversible error was committed in overruling the motion of the remonstrators to "dismiss the report of the commissioners and the proceedings" for the reason that the "report was not made to the court on September 26, 1910, as ordered by the court." The record as to this matter is as follows: "Come now the drainage commissioners in the above-entitled cause, on this 26th day of September, 1910, and file their report herein, as heretofore ordered by the court, which report is favorable and recommends the construction of said drain." It was insisted by appellants that the report of the commissioners was not filed with the clerk nor presented to the court. Evidence of witnesses was heard on this question, and the court concluded that the report was properly filed on the date mentioned. In the face of this record we cannot uphold appellants' contention.

[3] Error is also assigned in the overruling of appellants' motion for a new trial, but no question is here presented by such assignment, for the reason that neither the motion for a new trial nor the substance thereof is anywhere set out in appellants' brief. Judgment affirmed.

(180 Ind. 181)

MARTIN et al. v. ADAMS BRICK CO. (No. 21,801.) (Supreme Court of Indiana. Oct. 8, 1913.) 1. MORTGAGES (8 473*)-RECEIVERS-SALE EFFECT AS TO PERSONS NOT PARTIES.

[1] Having all appeared on September 18, 1907, and filed their remonstrances, appellants were in no position, on January 24, 1910, to insist that the notice was defective. Notice may be waived, and is always waived where there is an appearance. Appellants had joined in a remonstrance against the establishment of the drain and the levying of the assessment. This was an appearance. Pittsburgh, etc., R. Co. v. Hodge (1911) 175 Ind. 669-671, 94 N. E. 324, and cases cited;

An order obtained by a receiver, for the sale nullity as to the mortgagees, where they were of property which was subject to a mortgage is a not made parties.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1384; Dec. Dig. § 473.*]

2. CORPORATIONS (§ 560*)--MORTGAGE FORE- | brook, and Albert P. Smith, all of IndianCLOSURE ESTOPPEL. apolis, for appellee.

Where the first mortgage bondholders accepted a dividend given them in receivership proceedings against the corporate mortgagor to which they were not made parties but in which the mortgaged property was sold, they estopped themselves from questioning the order of sale in

the future.

MORRIS, J. In November, 1902, the Veedersburg Clay Company, a corporation, owned certain real estate in Fountain county on which was situated its manufacturing plant. It borrowed $30,000 and executed bonds

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. therefor, secured by a mortgage on all its 560.*]

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3. MORTGAGES ($ 590*) FORECLOSURE-OF PRIOR MORTGAGE.

Where a first mortgagee forecloses his mortgage without making the junior mortgagee a party, the rights of the junior are unaffected, though the purchaser at such mortgage sale acquires and combines the rights and interests of the mortgagor and senior mortgagee.

property.

In May, 1905, it executed to appellants a second mortgage on the same property to secure notes given for valid indebtedness, in the aggregate amount of $38,000.

In December, 1906, Clinton B. Marshall brought suit in the Marion superior court, [Ed. Note.-For other cases, see Mortgages, against the company, on an unsecured claim Cent. Dig. §§ 2354, 2361-2367; Dec. Dig. for $500, and on his petition, after appear590.*]

4. MORTGAGES

($ 473*)-FORECLOSURE

OF

MORTGAGES-RIGHTS OF MORTGAGEE. Where the property which was subject to two mortgages was sold in a receivership proceeding to which neither mortgagee was made a party, but the first mortgagee accepted a large dividend, the purchaser took the rights of the mortgagor and those of the first mortgagees notwithstanding that he purchased for less than the amount of that mortgage, and hence, in a proceeding by the second mortgagee to sell the property under his mortgage, the purchaser had a lien to the amount of the first mortgage, for, while ignorance of the law will not relieve one from its consequences, the first mortgagees did not intend to discharge their lien in favor of the second, and their acceptance of the dividend was for their own benefit and that of the purchaser.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1842-1853, 1855; Dec. Dig. 473.*]

5. MORTGAGES

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590*)-FORECLOSURE-EF

ance and consent of defendant, a receiver was appointed. Subsequently the receiver filed a petition, reciting the existence of the two mortgages, and praying for an order to sell the mortgaged property freed of the liens of the two mortgages, and decreeing the transfer of said liens from the property to the proceeds of the proposed sale. The mortgagees were not made parties to the proceedings. The petition was granted, and an order entered as prayed.

In January, 1907, pursuant to the order of the Marion superior court, the property was sold to one Pritchard for $18,500. It was recited in the receiver's deed to Pritchard that the property was conveyed free of the mortgage liens. The court ordered $6,500 of the proceeds of the sale applied to the payment of liens adjudged by it to be superior to that of the mortgages, and the remainder, $12,000, was ordered paid to the holders of the first mortgage bonds, and, notwithstanding they were never parties to the pro[Ed. Note. For other cases, see Mortgages, ceeding, the $12,000 was accepted by them, Cent. Dig. §§ 2354, 2361-2367; Dec. Dig. and the receivership proceedings were termi590.*]

FECT.

Where a senior mortgage is foreclosed in a proceeding to which the second mortgagee is not a party, the purchaser, in a subsequent proceeding by the second mortgagee, is considered the equitable assignee of the first mortgage.

6. MORTGAGES (§ 473*)-FORECLOSURE SALE-
RIGHT OF SECOND MORTGAGEE.
Where the proceeds of a receiver's sale of
mortgaged property, in proceedings to which nei-
ther the first nor second mortgagee was a par-
ty, were insufficient to discharge the first mort-
gage, the application of part of the proceeds to
the payment of other lienholders will not give
the second mortgagee any rights against the pur-
chaser in a subsequent action for the foreclosure
of his own mortgage.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1842-1853, 1855; Dec. Dig. § 473.*]

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by John W. Martin and others against the Adams Brick Company. From the judgment which denied some of the relief sought, plaintiffs appeal. Affirmed.

nated.

At

In May, 1907, Pritchard conveyed the property to appellee by warranty deed, in consideration of the transfer of capital stock of appellee of the par value of $69,150. In purchasing the property, both Pritchard and appellee in good faith believed that it was freed of the liens of the two mortgages. the time of the receiver's sale the property was worth less than $30,000. The Veedersburg Clay Company is wholly insolvent and, at the time the receiver was appointed, owned no property except that covered by the two mortgages.

In 1909 this suit was instituted by appel

lants, who were holders of the notes secured by the second mortgage, against appellee and the mortgagor to foreclose the second mortgage. The cause was venued to the Montgom

Lucas Nebeker, of Covington, for appel-ery circuit court. lants. Benjamin Crane and Charles M. Mc- The errors assigned here arise on demurCabe, both of Crawfordsville, and Charles rers to pleadings and on appellants' moW. Smith, John S. Duncan, Henry H. Horn- tion to modify the judgment. The circuit

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