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agreed to confer upon the defendant the right of subrogation. The defendant's claim is quite different from either of these. It is that, there being a subrogation clause in the printed stipulations, the plaintiff assented to it when he or his agent accepted the policy, because the law presumes that he read it. The next step in the argument is that the law presumes when he thus adopted that clause he represented that he still had all rights of recovery from everybody who should by negligence or otherwise set fire to the building.

interest Ensel had in this building. Did he see the Wabash Company's copy of the contract with Ensel when he went down to the elevator to investigate the risk? The nature and extent of Ensel's interest was determined by that contract, and "his interest" was by the very language of the "rider" a very material element of the risk. If Ensel's interest was the perfect and complete ownership of the structure which he was to demolish, then he had all the right of recovery from the Wabash Company or anybody who caused its destruction by negligent fire or otherwise. If the company's agents did not examine this phase of the risk, can the company complain now?

Counsel for the company allow no pre

The third step is that there was another stipulation preceding the subrogation clause, viz.: "This policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circum-sumption that the company knew what it stance concerning this insurance or the subject thereof;" therefore he deceived the insurance company, because he did not, between the delivery of the policy to Smith at 2 o'clock and the fire at 6 o'clock, reveal to the company that he had released his right of recovery for negligent fire by the Wabash Company. All the while it is conceded Ensel did not see the policy nor know of these stipulations, and he was asked no questions, and made no statements about anything.

Here we have a presumption upon a presumption, one of which cannot be true without the other is presumed to be true, from which to deduce the conclusion of deception -a conclusion deceptive surely enough. Formal logic may not be of much value as a constructive science, but it has legitimate use for criticism; it will expose error and puncture a fine fallacy. Let us syllogize defendants' argument:

Whoever knows, and does not speak lies. The law assumes that E. knew and that E. did speak.

Therefore E. lied.

But this lame conclusion would not avail defendant, if it were sound. The defendant must proceed further. For, let us note, the defense stated in the answer is not what defendants' counsel misconstrues it to be in the argument. It seeks to avoid the contract for fraud. The defense is deceit, not want of mutuality. He must show not only that the represented fact was not true, but that the presumed misrepresentation was made for the purpose of deceiving the defendant; and that the defendant relied upon the representation as true. Does the law presume that Ensel did what he did not in fact, and then presume that what he did not in fact he did for an evil purpose? Are we to have a third presumption, grounded upon the second, which was grounded on the first? This argument on presumption is strained and artificial and does not win our confidence.

And still this defense would not be complete. The insurance company was not deceived if its agent Bowen made a thorough

might have known; and justly, we think, because it is a question of construction and inference, whether he affirmed the fact by sithe company was under duty to inquire. But lence, or whether under all the circumstances counsel also concede no ground for inference. Counsel also concede no ground for inference. We think there was ground for inference, and that the trial judge properly decided the question. If the circuit court ruled the question otherwise, it must have done so because there was no evidence that the company assumed the risk upon its own knowledge; ignoring the clear, uncontroverted testimony that Bowen "made a thorough inspection of

the risk in detail."



On this question of knowledge, we are cited to the case of Nelson v. Continental Insurance Co., 182 Fed. 783, 105 C. C. A. 215, 31 L. R. A. (N. S.) 598. That company had issued to Nelson a policy against fire to his "five-story building, situate Nos. 138-142 E-S of North Market St." The policy had a "rider," to wit: "This insurance also covers the assured's one-half interest in the south wall of the four-story building, situate Nos. 144-146 North Market St." The * * * indicates court said: "The rider that the insurer had knowledge that the south wall of the Pilcher building was a party wall, outside of and beyond the limits of the premises generally described in the policy, which were the assured's 'five-story * building, situate Nos. 138-142 E-S 9 while the of North Market St. rider extends the protection of the insurance to the assured's interest in the south wall of the building described as 'situate Nos. 144146 North Market St. Under these circumstances, defendant must be presumed to have had knowledge of plaintiff's interest in the subject of the insurance, and to have issued its policy with such knowledge."

* *



Counsel for defendant here criticise the case, but reluctantly admit that the federal court rightly raised the presumption under the circumstances of that case. Counsel can hardly consistently contend that the trial court went wrong in drawing an inference of

* * *

[7] The error of counsel throughout this case lies in a confusion of terms. They mistake inference for presumption-a slip too often unconsciously made by judges as well as lawyers. A "presumption" is a rule which the law makes upon a given state of facts; an "inference" is a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proven. A presumption of law may be prima facie only, that is, a hypothesis which will admit of proof to the contrary; or it may be absolute, that is, a postulate which, for reasons of legal policy, the law will not permit to be contradicted. The latter may be a mere fiction, assumed to be true although the known fact may be the very opposite. It is the latter sort which we are urged to adopt in this case. There may be cases, having somewhat similar features, where judgment upon presumptions may be legitimate. This is not one of them.

the case at bar. Furthermore, there may be [ a question whether, in the light of all the circumstances, the stipulation as to the subrogation was in fact violated. It runs in the future. "If this company shall claim that fire was caused by the act of negligence of any person or corporation, * * * this company shall be subrogated to all right of recovery by the insured and such right shall be assigned to this company." That the Wabash company caused the fire does not appear. If that fact shall subsequently appear, the defendant may assert it in an action for breach of this covenant. "Sufficient unto the day is the evil thereof." [4] This stipulation is used in this action to work a forfeiture. The law abhors a forfeiture, and will countenance it only strictissimi juris. Besides, the stipulation, being written in the policy by the insurer for the protection of the insurer, is to be interpreted most strongly against the insurer. Here the insurer seeks to construe it as implying, nay, as importing by presumption of law, a representation that the insured had a right of recovery against the Wabash Company. The representation can hardly be imported into the document by strict construction. The most the defendant could claim is a mere inference that the plaintiff represented that he had the right to sue the Wabash Company STATE ex rel. SCHREIBER, City Solicitor, if that company should negligently or otherwise set fire to the property, and that he so represented falsely and purposely. That was an inference for the trial judge, if he found the facts would justify it. The judge did not so find. We think he was right; he properly construed the contract.

[6] Third. The property was incumbered by an undischarged mortgage upon the Wabash Railroad. What we have said supra about notice of and inquiry into the extent of his interest applies to this defense. Insurance is often written, "upon the assured's interest as his interest may appear." The "rider" is not materially different in effect. It was notice that his ownership of the building was not perfect, absolute ownership. The mortgage does not appear in the record, but we glean that there was the usual proviso that the railroad company might dispose of equipment and material, replacing the same with new. For aught that appears this is what the railroad company was doing. If so, the lien upon this lumber was discharged. This defense is not valid.

Judgment of the circuit court reversed, and that of the common pleas affirmed.



(88 Ohio St. 301)

v. MILROY, Pros. Atty. (Supreme Court of Ohio. June 27, 1913.)

(Syllabus by the Court.)


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An act to amend sections 5649-2 and Code, relative to the limitation of a tax rate, 5649-3b and repeal section 5649-3, General passed April 16, 1913, approved May 6, 1913, and filed in the office of the Secretary of State May 9, 1913, is not a "law providing for tax levies" within the meaning of those words, as used in section 1d of article 2, of the Constitution, and the same cannot go into effect until 90 days after it was filed in the office of the Secretary of State.

Cent. Dig. §§ 336, 337; Dec. Dig. § 254.*]
[Ed. Note.-For other cases, see Statutes,

Proceeding in quo warranto by the State, on the relation of Cornell Schreiber, city solicitor, against Charles M. Milroy, prosecuting attorney. Writ refused.

Cornell Schreiber, City Sol., and Alonzo G. Duer, Asst. City Sol., both of Toledo, for relator. Charles M. Milroy, Pros. Atty., of Toledo, Timothy S. Hogan, Atty. Gen., Clarence D. Laylin, Asst. Atty. Gen., and Thomas L. Pogue, Pros. Atty., and John V. Campbell and Charles A. Groom, Asst. Pros. Attys., all of Cincinnati, for respondent.

[5] Fourth. The elevator was situate on ground not owned by the plaintiff in fee. The property insured was not the building, but the lumber contemplated as personalty, though part of a structure "in process of demolition." The property was upon the PER CURIAM. This is a proceeding in land where it was described to be. The fact quo warranto brought in this court by Corthat the fee-simple title to the land was not nell Schreiber, as city solicitor of the city in the owner of the personalty insured, is not of Toledo, against Charles M. Milroy, as material. prosecuting attorney of Lucas county.

It is alleged in the petition that the budget Section 1d of article 2 is as follows: commission of Lucas county met on the first "Laws providing for tax levies, appropriaMonday in June, 1913, and there were pres- tions for the current expenses of the state ent the mayor of the city of Toledo, the coun- government and state institutions, and emerty auditor, and the prosecuting attorney of gency laws necessary for the immediate presLucas county and the relator herein, Cor-ervation of the public peace, health or safenell Schreiber, city solicitor of the city of ty, shall go into immediate effect. Such Toledo; that Schreiber, as such solicitor, de-emergency laws upon a yea and nay vote manded that he be recognized as a member must receive the vote of two-thirds of all the of the board of budget commissioners, which members elected to each branch of the Genright was denied, and it is alleged, further, eral Assembly, and the reasons for such nethat the prosecuting attorney, defendant cessity shall be set forth in one section of the herein, was illegally recognized as a member [law, which section shall be passed only upon of said commission; that he has no right to act as such, but has usurped, intruded into, and unlawfully holds and exercises said office. The relator asks that defendant be ousted and excluded therefrom, and that he, the relator, be inducted into said office.

The relator claims the right and title to the office in question under and by virtue of the provisions of an act of the General Assembly, passed in April, 1913 (103 Ohio Laws, p. 552), approved by the Governor May 6, 1913, and filed in the office of the Secretary of State May 9, 1913. This act amends and repeals certain sections of an act known as the "Smith One Per Cent. Law." It repeals section 5649-3 and amends sections 5649-2 and 5649-3b.

Section 5649-3b, as amended by this act, provides that the budget commission of each county shall consist of three members-the county auditor, the mayor of the largest municipality in the county, and, in counties in which the amount of taxable property in the cities and villages thereof exceeds the amount of taxable property of territory outside of the cities and villages, the third member shall be the city solicitor of the largest municipality in the county.

Defendant denies the right of the relator to act as a member of the board of budget commissioners for the reason that the act in question is not, at present, in effect. In support of his contention, he calls attention to the provisions of article 2 of the Constitution. This article provides for the initiative and referendum, and contains the provision that no law passed by the General Assembly shall go into effect until 90 days after it shall have been filed by the Governor in the office of the Secretary of State, except as provided in said article.

a yea and nay vote, upon a separate roll call thereon. The laws mentioned in this section shall not be subject to the referendum."

The relator contends that the act under which he is claiming title to the office is one providing for tax levies, and comes within the exceptions mentioned in section 1d, supra.

Sections 5649-2 and 5649-3b comprise the act which the relator designates as "a law providing for tax levies." This act, by section 5649-2, imposes a limitation upon the aggregate amount of all taxes that may be levied, and the other section in said act creates the budget commission.

The General Assembly did not, in this act, impose a tax, stating distinctly the object of the same, nor did it fix the amount or the percentage of value to be levied, nor did it designate persons or property against whom a levy was to be made. It merely imposed certain limitations and created an agency. The act cannot be said to be one "providing for tax levies," within the meaning of those words as used in section 1d of article 2 of the Constitution. It is therefore clearly subject to the referendum, and cannot become effective until 90 days after it was filed in the office of the Secretary of State.

The validity of this act is challenged. It is unnecessary to consider this in determining the rights of the relator in this case, as in no event could he claim title to the office in question until 90 days after May 9, 1913. Writ refused.


(180 Ind. 356)

STATE ex rel. YOUNG v. WEBBER, City Clerk. (No. 22,403.) (Supreme Court of Indiana. MANDAMUS (§.3*)-SCOPE OF REMEDY.

(18 Ind. 42)

PITTSBURGH, C., C. & ST. L. RY. CO. v.
GREGG et al. (No. 22,157.)1

Oct. 31, 1913.) (Supreme Court of Indiana. Oct. 29, 1913.)

Mandamus is not an appropriate writ to settle doubtful claims to an office, or to adjudicate the title as between adverse claimants, the proper remedy being quo warranto; hence mandamus will not lie to compel a city clerk to appoint relator as primary election commissioner, where the clerk denies relator's right to that


[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 8, 10, 11, 16-34; Dec. Dig. § 3.* For other definitions, see Words and Phrases, vol. 5, pp. 4323-4330; vol. 8, pp. 7714, 7715.] Appeal from Circuit Court, Vanderburgh County; F. M. Hostetter, Judge.

Mandamus by the State, on the relation of John F. Young, against Harvey C. Webber, as Clerk of the City of Evansville. From a judgment sustaining a demurrer to the complaint, relator appeals. Affirmed.

Bohannon, Harman & Seacat and Robinson & Stilwell, all of Evansville, for appellant. Phil C. Gould, George A. Cunningham, and Daniel H. Ortmeyer, all of Evansville, for appellee.

ERWIN, J. This was an action by relator in mandamus to compel appellee, the clerk of the city of Evansville, to appoint appellant, as nominee of the chairman of the Progressive party of the city of Evansville, Progressive party of the city of Evansville, primary election commissioner. It is alleged in the complaint that before the bringing of this suit he, relator, demanded of the appellee that he, relator, be appointed; but appellee notified this relator that he did not intend to recognize the nominee of the Progressive party, but that he, appellee, had appointed the persons nominated by the chairman of the Republican and Democratic parties. Then follows prayer for mandamus to compel the appellee to appoint the relator to said office of primary election commissioner for said city. To this complaint for mandamus, the appellee filed a demurrer for want of facts to constitute a cause of action, which demurrer was by the court sustained.

The only error assigned in this cause is that the court erred in sustaining the demurrer of the appellee to the complaint of the appellant.


in the boards of county commissioners general Burns' Ann. St. 1908, § 7649 et seq., vests and exclusive jurisdiction over the location of public highways outside of cities and towns. Cent. Dig. §§ 31-34, 36; Dec. Dig. § 23.*] [Ed. Note.-For other cases, see Highways, 2. COURTS (§ 37*)-JURISDICTION-WAIVER. While the lack of jurisdiction over the subject-matter cannot be waived, the want of jurisdiction over a particular case belonging to a class of cases over which the court has jurisdiction may be waived by failure to make timely objection.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 147-149, 151, 156; Dec. Dig. § 37.*1 3. HIGHWAYS (§ 29*)-PROCEEDINGS FOR LOCATION-FINDING BY COMMISSIONERS.

Where a petition for the location of a highway is presented to the board of county commissioners, that board must determine whether the petition is signed by the required number of petitioners, but it need not enter a formal finding or the proof of record on that point, and the fact that it assumed jurisdiction over the proceedings is a sufficient decision of the question.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 47-59; Dec. Dig. § 29.*] 4. HIGHWAYS (§ 58*)-PROCEEDINGS FOR LOCATION-JURISDICTION-OBJECTION.

Where a petition for the location of a highway on its face showed the existence of jurisdictional facts, the board's jurisdiction over the particular case will be deemed to have been affirmatively determined by that tribunal, in the absence of a timely and specific objection to the jurisdiction.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 177-198, 200-203; Dec. Dig. § 58.*]



A motion to dismiss proceedings for the location of a highway on the ground that the facts tablished by competent evidence is not specific necessary to give jurisdiction have not been esenough to impose any additional obligation upon the commissioners to determine the question of the qualification of the signers of the petition. Cent. Dig. § 80; Dec. Dig. § 34.*] [Ed. Note. For other cases, see Highways,


Where the lack of a jurisdictional fact did not appear on the face of the proceedings, objections to the qualifications of the petitioners for the establishment of a highway, who are raised by a motion for summary dismissal but stated in the petition to be qualified, cannot be must be by plea in abatement.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 47-59; Dec. Dig. § 29.*] 7. HIGHWAYS (§ 29*)-PETITION-SIGNATURES -SUFFICIENCY-INITIALS.

We are of the opinion that no error was committed by the trial court, for the reason that such a writ cannot rightfully be invoked to settle a doubtful claim to an office, or to have the title to an office adjudicated as between adverse claimants. The proper action, if we have any claim to the office in Signing a petition for the location of a question, would be a proceeding in quo war-highway with the initials of the Christian name ranto. Hoy v. State ex rel. Buchanan, 168 Ind. 506, 81 N. E. 509, 11 Ann. Cas. 944, and

cases there cited.

Judgment affirmed.

and the full surname is a sufficient signing.

Cent. Dig. §§ 47-59; Dec. Dig. § 29.* [Ed. Note.-For other cases, see Highways,

For other definitions, see Words and Phrases, vol. 7, pp. 6508-6515.]

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

The fact that a proposed public highway is located along the line of an existing private way does not establish the inutility of the road as a public highway.

[Ed. Note. For other cases, see Highways, Cent. Dig. § 26; Dec. Dig. § 20.*]


8. HIGHWAYS (§ 20*)-ESTABLISHMENT-UTIL- [tion 17 to the northwest corner of the southITY-PRIVATE WAY. east quarter of said section 17, and there terminating. Said proposed highway will pass along and over the lands of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway [here follow the names of 11 others whose names are given]. That said proposed highway will be of public utility and benefit. Wherefore your petitioners pray that three persons be appointed by the board to view the highway hereinabove described, as provided by law, and your petitioners will ever pray." To this petition 14 names were signed, and to it was attached an affidavit to the effect that the petition was signed by 12 freeholders of Porter county and that 6 of them were resident freeholders of the county

Where the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company appealed from an order of the board of county commissioners establishing a highway, an exception to the exclusion of evidence by the Pennsylvania Railroad Company is not available to the appellant.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 177-198, 200-203; Dec. Dig. § 58.*]





A railroad company across whose right of way a new highway is located is not entitled to compensation for the interruption and inconvenience nor for the increased expense or risk occasioned thereby, either at common law or under Burns' Ann. St. 1908, § 5195, cl. 5, providing that railroads shall have the right to construct their roads across a public highway so as not to interfere with the free use thereof, since in accepting its franchise from the state the road impliedly agrees that the sovereign right to provide new highways shall not be impaired.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 284-290; Dec. Dig. § 96.*] Appeal from Circuit Court, Porter County; W. C. McMohon, Judge.

Appeal by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From an order of the Board of County Commissioners establishing a highway. Judgment in favor of the petitioners, and the railroad company appeals. Affirmed.

G. E. Ross, of Logansport, for appellant. G. C. Gregg, of Hebron, for appellees.

COX, J. This proceeding to locate and establish a new public highway was begun by appellees by presenting their petition to the board of commissioners of Porter county at the October term, 1910, in accordance with the provisions of the highway act of 1905, as the same was amended by the act of 1907 (Acts 1905, p. 521; Acts 1907, p. 443; section 7649 et seq., Burns 1908). The averments of the petition are as follows: "The undersigned petitioners would respectfully represent that they, and each of them, are freeholders in the county of Porter, in the state of Indiana, and that six of them are resident freeholders in said county and reside in the immediate neighborhood of the highway herein proposed to be located, and said petitioners petition and ask for the location of a new public highway in Boone township, in the county of Porter, in the state of Indiana, which highway is particularly described as follows, to wit: Beginning at the northeast corner of the northwest quarter of section 17, township 33 north, range 6 west; thence south on the half section line of said sec

residing in the immediate neighborhood of the proposed highway. At the same time proofs of posting and publication of notices of the presentation of the petition, in full compliance with the statute, were filed with the board.

Pursuant to these notices appellant appeared specially by counsel and moved to dismiss the proceeding for reasons stated as follows: (1) This court has no jurisdiction of the subject-matter of these proceedings; (2) this court has no jurisdiction of or over the persons and property to be affected by these proceedings; (3) the facts necessary to give this court jurisdiction of these proceedings have not been and cannot be established by competent and proper evidence; (4) that the petition does not state facts sufficient to vest jurisdiction of these proceedings in this court; (5) that there is no sufficient description of the proposed highway; (6) that the law under which these proceedings are being had is in violation of the fourteenth amendment to the Constitution of the United States in that said law authorizes the taking of property without due process of law and denies the equal protection of the law. This motion was overruled by the board, and viewers were appointed. Following their report appellant remonstrated on the grounds of the inutility of the highway and of damages to its right of way and railroad. Reviewers were appointed and reported damages to appellant in the sum of $50. From an order that the road be established and opened upon the payment of the damages assessed, appellant appealed to the circuit court where it refiled its motion to dismiss the proceeding on the grounds above stated, and that court also overruled it. Appellant thereupon refiled its remonstrance, and the cause was tried by the court resulting in a finding and judgment in favor of the petitioners on all the issues. On appeal from that judgment appellant assigns as error the action of the circuit court in overruling its motion to dismiss the proceeding and its motion for a new trial.

Counsel for appellant presents nothing in

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