(151 Ind. 108)

STARNES et al. v. ALLEN. (Supreme Court of Indiana. July 1, 1898.) SUFFICIENCY OF RECORD-LONGHAND MANUSCRIPT. The clerk's certificate, authenticating the transcript, and reciting, "I * do hereby certify that the above and foregoing is a full, true, and correct copy of the records and judgment of the court in the above-entitled cause, as the same appears of record in my office," is binding on the appellate court, in the absence of any showing to the contrary appearing in the record, that the bill of exceptions, including the longhand manuscript, has been copied by the clerk into the transcript; making it immaterial whether the longhand manuscript has ever been filed in the clerk's office, separate and apart from the bill of exceptions.

Petition for rehearing. Overruled.
For former opinion, see 45 N. E. 330.

MCCABE, J. A petition for a rehearing is presented in this case, supported by an exhaustive brief of over 40 pages of printed matter. We have read and considered it with patience and forbearance. The first 20 pages are devoted to a profound, logical, and able argument, couched in language ornate and dignified, supported by the citation of many recent decisions of this court to the effect that when the longhand manuscript of the evidence is sent up to this court the transcript must show that it was filed in the clerk's office before it was incorporated in the bill of exceptions, or the evidence is not in the record. And, it not being shown that the longhand manuscript was filed in the clerk's office in this case before the bill of exceptions was filed, it is contended, in a liberal display of charming rhetoric, that we erred in holding that the evidence was in the record. If we had decided in the original opinion that it need not be shown in the transcript that the longhand manuscript was filed before its incorporation in the bill of exceptions, in opposition to the long line of cases decided by us, cited by appellee's counsel, it would not tax our patience to read this long argument to prove a proposition which no one disputes. The original opinion makes no such decision, but is in perfect accord with all those cases holding that, in order to bring the evidence into the record by the original longhand manuscript sent up to this court, the transcript must show that such manuscript was filed in the clerk's office below before its incorporation in the bill of exceptions, as required by the statute in force when these proceedings took place. Therefore all this long effusion about our duty to be governed by our previous decisions as to what is required to make the original longhand manuscript, when sent up, a part of the record, is nothing less than an inexcusable waste of labor and valuable time, or "love's labor lost." But it may be counsel intended such useless argument as a sort of a makeweight in favor of the appellee on another proposition that is involved. Each proposition, how

ever, must stand or fall on its own merits. The sole ground on which we held that the evidence was in the record is that the clerk had, in his certificate authenticating the transcript, said: "I * * do hereby certify that the above and foregoing is a full, true, and correct copy of the records and judgment of the court in the above-entitled cause, as the same appears of record in my office." Two things are said in this certificate, vital to the controversy: One is that what precedes it is a copy of a transcript of the original, and the other is that the original of all contained in the transcript remains and appears of record in the clerk's office below. That could not be so if the original manuscript of the evidence had been sent up here. We simply held in the original opinion that this statement of the clerk below, within his power to make, was binding on us, in the absence of any showing to the contrary appearing in the record; holding that that made it appear that the bill of exceptions, including the longhand manuscript, had been copied by the clerk into the transcript, making it wholly immaterial whether the longhand manuscript had ever been filed in the clerk's office, separate and apart from the bill of exceptions, or not. And it is not now contended that the record shows anything to the contrary. It is conceded that the transcript properly shows the filing of the bill of exceptions in time. It is, however, contended by appellee's learned counsel that even in that case the transcript must show the filing of the original longhand manuscript in the clerk's office before its incorporation in the bill of exceptions. But that is a total misapprehension of the force and effect of the statute then in force, providing for sending up the original longhand manuscript of the evidence without copying it, instead of a transcript thereof. It is only when that is to be done that there was any requirement that it should be filed in the clerk's office. That statute neither repealed nor modified the other provisions of the Code as to incorporating the evidence in a bill of exceptions, and copying the same into the transcript. When that course was pursued, all that these provisions required was that the transcript should show the filing of the bill of exceptions, incorporating the evidence, within the proper time, in the clerk's office below. Appellee's counsel assume that this is not the law; citing in support of such assumption the line of decisions already referred to, as to the requisites to bring the evidence into the record under the statute then in force as to bringing up the original longhand manuscript. But such decisions have no bearing on the question. Where the clerk's certificate shows, as is the case here, that the bill of exceptions has been copied into the transcript, this court has steadily recognized the law to be as we declared it in the original opiniɔn (that it is not necessary to show

had been declared unconstitutional.
section 5631 applies to the repairs, since such
section is not within the proviso of section
5646, and the proviso will not be held to limit
the act to drainage secured by proceedings in
the circuit court.

Petition for rehearing. Overruled.
For former opinion, see 49 N. E. 169.

HACKNEY, C. J. The petition for a rehearing is directed only to the question of the power of the surveyor to make the repairs in question. If we understand counsel, they maintain that the act of 1885 (Rev. St. 1894, § 5631) does not apply to the drain here in question, because of the proviso in the thirteenth section (Rev. St. 1894, § 5646) that said act shall not be held to repeal or affect in any manner the act of April 21, 1881, the act under which this drainage was accomplished. Section 10 of the act for drainage proceedings in the circuit court (Rev. St. 1881, § 4282) and section 23 of the act for drainage proceedings in the commissioners' court were in the same language. They provided for the cleaning and repairing of drains by the township trustee, the payment therefor from the township fund, and the reimbursement of that fund by assessments. This court, in Campbell v. Dwiggins, 83 Ind. 473, in 1882, held said two sections unconstitutional as to the proceedings to reimburse the township fund. In 1885 the general assembly enacted the act of April 6th (Acts 1885, p. 129), its general features applying to proceedings for drainage in the circuit courts. In section 10 of that act (Rev. St. 1894, § 5631) it was provided that when a drain was completed the county surveyor should keep it in repair. Its language clearly made it applicable to drains constructed in two or more counties, and provided for the apportionments and collection of the cost between the lands of the several counties. It then provided, in language free from ambiguity or doubt, that "the provisions of this section shall also apply to all works constructed for the purpose of drainage under any law now or heretofore in force in this state." There then existed no substitute for the provisions of the acts of 1881 so held to violate the constitution. The intention of the general assembly to create a new method of repairing and collecting the cost seems manifest unless the proviso referred to should be held to limit the act to drainage secured by proceedings in the circuit court. The necessity for such legislation, and the comprehensive language of said provision, applying to all drainage under all laws, strongly support the intention to cover the provisions of section 23 of the act of 1881, and cure the defect therein. The proviso, in our opinion, does not defeat this intention. It speaks with reference to the act of April 21, 1881, as a whole, and expresses the purpose to keep said act alive and in force. It is not to be implied that the new provision as to repairs, in the

of April 21, 1881. Construing the two acts of 1881 with that of 1885, it seems clear to our minds that it was intended by the latter act to provide for the cleaning of drains in two or more counties by the surveyor of the county in which the proceedings were instituted, whether by proceedings in the circuit court or in the commissioners' court. In the original opinion we employed language implying our conclusion that section 4310, Rev. St. 1881 (section 5679, Rev. St. 1894) failed by the holding that section 4307, Rev. St. 1881, was not constitutional. From the holding in Ingerman v. Noblesville Tp., 90 Ind. 393, that only the provisions of section 4307, supra, as to assessing lands for the reimbursement of the township fund, were unconstitutional, section 4310 (section 5679), supra, would probably not be defeated. But, as intimated in the original opinion, section 4310 (section 5679) was of doubtful force from its failure to designate the officers and the procedure for repairing joint drains. However, we are clearly of the opinion that the act of 1885, supra, provided a complete method, and applied when the repairs here in question were made. The petition is overruled.

(151 Ind. 139)

CITY OF INDIANAPOLIS v. NAVIN. (Supreme Court of Indiana. July 1, 1898.) SUPREME COURT-DECISIONS-CONFLICT WITH FED-ERAL DECISIONS.

The question whether a statute is in contravention of the state constitution is one to be finally determined by the supreme court, and its decision will not be discarded on a rehearing, on the ground that the United States courts. have subsequently decided a like case contrary to such decision.

Petition for rehearing. Overruled.
For former opinion, see 47 N. E. 525.

PER CURIAM. In this case the principal contention was that the act of March 6, 1897, amending section 9 of the act to provide for the incorporation of street-railroad companies, was inoperative and void, because in contravention of section 13 of article 11 of the constitution of this state. In arriving at the conclusion reached in the original opinion, we had the benefit of the opinion of the circuit justice, delivered in the case of Central Trust Co. v. Citizens' St. R. Co., reported in 80 Fed. 218, and also of the very able argument addressed to the justice in that case by the eminent counsel for the complainant. After carefully considering, not only the arguments presented in this case, but also the arguments and opinion referred to, and all the light that we could obtain upon the question, we were constrained to hold that the contention that the legislation in question was in violation of the constitution of this state was without just foundation, and that the act was in harmony

therewith. The question thus presented to us was purely one arising upon the construction of the constitution of this state. Such a question, when presented to this court, is one that it must decide upon its own judgment as to the requirements of the state constitution. While in search of assistance and information to enable us to decide such a question correctly, it is eminently proper and necessary that we should examine,

weigh, and consider, not only the arguments of counsel, but also the adjudications of courts and the opinions of judges, in other jurisdictions, upon similar or analogous provisions of this or other constitutions, and give to them such weight as in our opinion they are justly entitled to; but, after that has been done, the responsibility rests upon us, and us alone, and that responsibility can not be shirked, evaded, or avoided. What the constitution of the United States, and the laws of congress or treaties made thereunder, require, is to be finally determined by the supreme court of the United States; and its decisions, when made upon such questions, are binding upon the courts in every state, "anything in the constitution or laws of any state to the contrary notwithstanding." Cooley, Const. Lim. (6th Ed.) pp. 1823; Black, Interp. Laws, pp. 378-380, 427429; 23 Am. & Eng. Enc. Law, pp. 37-40, and cases cited. The interpretation and construction of the statutes of this state, and whether the same have been enacted in accordance with the requirements of the constitution of this state, and are or are not in violation of any provision of the constitution of this state, however, are questions to be finally determined by this court, and by this court alone. The rule is that the construction put upon the constitution and laws of a state by the court of last resort of such state, and the decision of such court that a law has or has not been passed in conformity with the requirements of the constitution of such state, or that the same is or is not in violation of the constitution of such state, are binding upon the federal courts, and will be adopted by them. Black, Interp. Laws, pp. 378-381, 427-429; 23 Am. & Eng. Enc. Law, pp. 37-40, and cases cited; Cooley, Const. Lim. pp. 18-23; Black, Const. Law, p. 140; 35 Cent. Law J. 322; Goodnow v. Wells, 67 Iowa, 654, 25 N. W. 864; May v. Tenney, 148 U. S. 60, 64, 65, 13 Sup. Ct. 491; Balkam v. Woodstock Iron Co., 154 U. S. 177, 187-189, 14 Sup. Ct. 1010; Railway Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. 1114; Leeper v. Texas, 139 U. S. 462, 467, 11 Sup. Ct. 577; Morley v. Lake Shore & M. S. Ry. Co., 146 U. S. 162, 166-169, 13 Sup. Ct. 54; Bauserman v. Blunt, 147 U. S. 647, 652-659, 13 Sup. Ct. 466; Oakes v. Mase, 165 U. S. 363, 17 Sup. Ct. 345; Forsyth v. City of Hammond, 166 U. S. 506, 518–520, 17 Sup. Ct. 665; Long Island Water-Supply Co. v. City of Brooklyn, 166 U. S. 685, 688, 17 Sup. Ct. 718; Merchants' & Manufacturers' Nat. Bank v. 51 N.E.-6

Pennsylvania, 167 U. S. 461, 462, 17 Sup. Ct. 829; St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S. 349, 357, 18 Sup. Ct. 157; Backus v. Fort St. Union Depot Co., 169 U. S. 557, 566, 18 Sup. Ct. 445; Dibble v. Bellingham Bay Land Co., 163 U. S. 63, 16 Sup. Ct. 939; Illinois Cent. R. Co. v. Illinois, 163 U. S. 63, 16 Sup. Ct. 1096; Nobles v. Georgia, 18 Sup. Ct. 87; McCain v. City of Des Moines, 84 Fed. 726; Leighton v. Young, 3 C. C. A. 176, 52 Fed. 439; Western Union Tel. Co. v. Poe, 64 Fed. 9; Crowther v. Safe-Deposit Co., 29 C. C. A. 1, 85 Fed. 41; Hill v. Hite, 29 C. C. A. 549, 85 Fed. 268; Hoge v. Magnes, 29 C. C. A. 564, 85 Fed. 355.

Since the decision of this case and the filing of the petition for a rehearing, our attention has been called by appellant's brief on said petition to the decision of the United States circuit court in the case of Central Trust Co. v. Citizens' St. Ry. Co., 82 Fed. 1, in which the learned judge, who had arrived at a different conclusion before the announcement of our opinion upon the question, adhered to his original conclusion, notwithstanding the opinion announced by this court. We have also examined the opinion, upon appeal, in the circuit court of appeals (City of Indianopolis v. Central Trust Co., 27 C. C. A. 580, 83 Fed. 529), and have carefully re-examined the question presented in this regard, not simply as a matter of courtesy to a high court, but constrained thereto by the duty which is cast upon us by the presentation of the petition for a rehearing. We have done this not alone because of the importance of the question, but because of the misfortune to the community, and the parties especially interested in a correct decision of the question, that this court should differ from the circuit court of the United States upon the question. Upon such re-examination we are constrained to adhere to our original opinion, that the act in question, even if local and special, is not in contravention of any of the provisions of the constitution of this state, as contended by the appellant. As the power to amend or repeal the act of 1861 was expressly reserved in section 11 of said act, and as the act of 1897 was a valid amendment of said act of 1861, it is not material whether or not the legislature would have had the power to regulate the fare upon street railroads organized under said act if said section 11 had been omitted therefrom. In arriving at the conclusion that the act of 1897 is not in contravention of any provision of the constitution of this state, it has not been necessary for us to consider any questions arising under the constitution of the United States. As to such questions we should be constrained to follow the adjudications of the supreme court of the United States, if any, without in any wise considering whether such a construction should or should not commend itself to our independent judgment. But up

on the requirements of the constitution of this state we are not at liberty to set aside or discard our own views because of the fact that they do not meet with the concurrence or approbation of any other court, however high, or any judge, however eminent. We do not deem it necessary to add anything further to what we have heretofore said upon the questions involved, but, adhering to the opinion originally pronounced in this case, the petition for a rehearing is overruled.

(151 Ind. 30)

OWINGS v. JONES et al. (Supreme Court of Indiana. June 28, 1898.)

WITNESSES

TRANSACTIONS WITH DECEDENTS RIGHT TO CALL ADVERSE PARTY. Plaintiff heirs sued defendant heirs for partition of property inherited from their common ancestor, and to quiet title to said property against O., one of the heirs, who claimed it under a deed from the ancestor. W., the brother of O., filed an answer averring that the ancestor, a short time before his death, delivered a deed to the property to him, to be delivered to O., as the grantee. The other defendants, excepting O., filed no pleas. Held, that under Burns' Rev. St. 1894, § 510 (Horner's Rev. St. 1897, § 502), giving the right to any party to a suit by or against heirs, founded on a contract with the ancestor, to call and examine as a witness "any adverse party," defendant O. had a right to examine W. as to what the ancestor said about delivering the deed, since W., to all intents, was an adverse party, in that his interests were with the heirs and against the claim of O.

Appeal from circuit court, Blackford county: E. C. Vaughn, Judge.

Action by Malinda Jones and others against Thomas B. Owings, Sr., and others. From a judgment for plaintiffs, defendant Owings appeals. Reversed.

Carroll & Dean, for appellant. H. J. Paulus, for appellees.

JORDAN, J. Appellees, Malinda Jones, Jane Case, and Mary A. Heinlein, instituted this action in the Grant circuit court against appellant and a number of other defendants, for the purpose of securing partition of the real estate described in the complaint among the plaintiffs and defendants, and to quiet title to the said realty against the defendant (now appellant) Thomas B. Owings. The venue of the case appears to have been changed to the Blackford circuit court, wherein a trial resulted in the finding that the plaintiffs and defendants were the heirs of a common ancestor, and entitled to partition of the lands as such heirs; that their title be quieted as against the defendant Thomas B. Owings; and, over the motion of the latter for a new trial, a judgment was rendered declaring the deeds herein involved void, and partition was awarded accordingly, and the title of the plaintiffs and defendants as to the shares assigned to each of them was quieted as against the title claimed

by appellant under his deeds, and it was further adjudged that he pay the cost of the action. The complaint, among other things, alleges that the plaintiffs and defendants are brothers and sisters, nephews and nieces, and the only heirs, of Sarah R. Smith, who died intestate at Grant county, Ind., on July 10, 1895, the owner in fee simple of the real estate therein described, and that the plaintiffs and defendants hold the same, undivided, as tenants in common, by inheritance, as the heirs of the said Sarah R. Smith, and the share to which each party is respectively entitled is stated. The complaint also avers that the said ancestor, prior to her death, had signed and acknowledged deeds purporting to convey the real estate described in the complaint to the defendant Thomas B. Owings, but it was alleged that these deeds were not delivered to him, nor to any other person for his use, by the grantor, Sarah R. Smith, but at all times were retained by her in her exclusive possession and under her control until her death; and that thereafter said Thomas B., without right, obtained possession of the deeds, and caused them to be placed upon the public records, and that under and by virtue of such deeds of conveyance he is claiming and asserting an absolute title to all of the land in fee simple, etc. It is averred that these deeds are void, for the reason that they were never delivered to the defendant, nor to any one for his use, but that they serve to cast a cloud upon the title of the plaintiffs and each of the other defendants; and the prayer is that they be declared null and void, and that the title of the parties to the land be quieted as against the claim of the defendant Thomas B. Owings, etc. William Owings, one of the defendants, filed what he denominated his separate answer to the complaint, wherein he alleged that he was an heir of Sarah R. Smith, as stated in the complaint, and that prior to her death she executed warranty deeds of conveyance to his co-defendant Thomas B. Owings, conveying the real estate described in the complaint, and delivered the same to him (William Owings), with directions to deliver said deeds to Thomas B. Owings as soon as he had an opportunity; that he took the deeds into his possession, and so retained them until he delivered them to said Thomas B., which he did at the first opportunity; and he further alleged that under such deeds Thomas B. was the owner of the real estate in question; and in his answer he demanded judgment for costs. The defendants, other than Thomas B. and William Owings, are not shown by the record to have filed any pleadings in the action. The record recites that the cause, being at issue, is submitted to the court, and, at the request of the defendant Thomas B. Owings, the court made a special finding of facts.

The disputed question at the trial, under the issues, and the only one, related to the delivery of the deeds. The plaintiffs, to