« AnteriorContinuar »
Wiley v. The Corporation of Bluffiton.
lud. 450; Chamberlain v. City of Evcmsville, 77 Ind. 542; Eichels v. Evansville Street E. W. Co., 78 Ind. 261 (41 Am. R.561); Warren v. City of Evansville, 106 Ind. 104; Corporation of Blufflon v. Studabaker, 106 Ind. 129; City of Evansville v. Summers, 108 lud. 189.
Ia the case last cited, after quoting the fourth clause of the schedule or ordinance which is annexed to, and forms a part of, our State Constitution of 1851, the court said: "That the special charter, thus granted and retained, may be amended by special or general acts, is not here questioned, and is well settled." Upon these authorities, it must be held, we think, in the case in hand, that, under such fourth clause of the schedule annexed to the State Constitution of 1851, the General Assembly had the power or authority to amend the act of incorporation of February 12th, 1851, or special charter of the town of Bluffton, by special act, even where the effect of such amendatory act was to enlarge the jurisdiction, territorially or otherwise, of such municipal corporation. It is certain that such an amendatory act does not fall within any of the cases enumerated in section 22, of article 4, of the State Constitution of 1851 (section 118, R. S. 1881), wherein it is declared that "The General Assembly shall not pass local or special laws.'' Whether or not the subject of such amendatory act was one where a general law could have been made applicable, "and of uniform operation throughout the State," was a question for the decision of the General Assembly, and not of the courts. Section 119, R. S. 1881. Thus, in Gentile v. State, 29 Ind. 409, it was held by this court that it is for the Legislature alone to judge whether a law on any given subject, not enumerated in section 22 of article 4, can be made applicable "and of uniform operation throughout the State," as required by section 23 of the same article, of the State Constitution of 1851. Upon this point, the case cited has been approved and followed in a number of our decided cases. Longworth v. Common Council, etc., supra; State, ex rel., v. Tucker, 46 Wiley v. The Corporation of Bluffton.
Ind. 355; Vickery v. Chase, 50 Ind. 461; Kelly v. State, ear rel., 92 Ind. 236; Johnson v. Board, etc., 107 Ind. 15.
The subject of the act of February 15th, 1873, amending certain sections of the act of incorporation, or special charter, of the town of Bluffton, is not one of the subjects enumerated in section 22, of article 4, of the State Constitution of 1851, wherein the General Assembly were prohibited from passing special laws. By their enactment of such special amendatory act, the General Assembly virtually decided that the subject of such act was one to which a general law, "of uniform operation throughout the State," could not be made applicable; and such decision is final and conclusive.
2. This brings us to the consideration of the second question, hereinbefore stated, namely: Conceding the power or authority of the General Assembly to amend, by special act, the above entitled act of incorporation of February 12th, 1851, or special charter of the town of Bluffton, is the amendatory act of February 15th, 1873, a valid and constitutional exercise of such power or authority? We know of no objections to the validity or constitutionality of such amendatory act, other than those we have already considered, and have found to be insufficient. When it is conceded that the subject of such act is a proper subject of legislation, it is not within the province of the courts to criticise the impolicy or seeming injustice of the provisions of the statute, or to relieve a party aggrieved thereby from the operation thereof. For such grievances the General Assembly alone can furnish adequate relief.
We are of opinion that the court did not err in finding for appellee, the defendant below, upon the agreed statement of facts herein.
The judgment is affirmed, with costs.
Filed May 26,1887.
Harter r. Eltzroth.
No. 12,194. ill 1*9
Harter V. Eltzroth. il» 439
Practice.—Appeal.—Showing of Error.—Reversal of Judgment.—Unless the S record affirmatively shows the existence of error, and that it was, or 141 589 probably was, prejudicial to the party complaining, the judgment will I"1 not be reversed. '39!
Same.—Evidence.—Examination of Witness.—Objection to Question.—Statement as to Answer Erpected.—To constitute available error in ruling out a question propounded to a witness, the interrogating party must announce to the court what he expects to elicit in answer to the question. A general statement that he expects to follow up the question by showing a certain fact, but not announcing that he expects to make the proof by the witness interrogated, is not a compliance with the rule.
Corporation.—Sale of Stock.—Implied Warranty.—There is no implied
From the Montgomery Circuit Court.
Zollars, C. J.—Appellant purchased from appellee certificates of stock in the Crawfordsville and Shannondale Consolidated Turnpike Company. He claims that the stock is not worth* what he gave for it, and that, therefore, he suffered loss by reason of the purchase. He further claims, that appellee is liable to him because of warranties, express and implied, and because of fraudulent representations in the sale and transfer of the stock to him, in relation to the value of the stock, in relation to the stock having been paid up, and in relation to the debts, and the legal incorporation of the company.
It is urged that the court below erred in excluding evidence which would have proved, or tended to prove, the existence and violation of the alleged warranties, and the existence of the alleged fraud on the part of appellee.
Harter i. Eltzroth.
It is contended on the part of appellee, that the record •does not present the questions discussed by counsel in such a way as to justify this court in overthrowing the judgment in his favor. That contention can not be disregarded.
It has long been the settled rule, that this court will not reverse a judgment of the trial court unless the record affirmatively shows the existence of the errors urged by the complaining party, and, also, that those errors were, or probably were, prejudicial to the party against whom they were committed. Binns v. State, 66 Ind. 428; Cline v. Lindscy, 110 Ind. 337, and cases there cited; McKinsey v. McKee, 109 Ind. 209, and cases there cited.
When appellant was upon the stand as a witness in his own behalf, he was asked by his counsel to state what, if anything, appellee said at the time of the transfer of the stock about its being paid up. The court sustained an objection to the question, and appellant excepted, but it was in no way stated to the court what fact, or facts, appellant expected to prove by an answer to the question. The trial court was not informed of what the answer to the question might be, nor had it any means of knowing. Neither has this court any means of knowing what the answer might have been.
This court, clearly, can not assume, or presume, that the answer would have been such as to establish any fact favorable or beneficial to appellant. For aught that was made to appear below, and for aught that is shown by the record here, it might as well be assumed that the answer, if allowed, would have been detrimental to appellant. It is sufficient here, that the record does not affirmatively show that appellant was injured by the ruling of the court below in sustaining the objection to the question, nor that there was error in that ruling. Mitchell v. Chambers, 55 Ind. 289; Wilcox v. Majors, 88 Ind. 203; Louisville, etc., R. W. Co. v. Smith, 91 Ind. 119; Elliott v. Russell, 92 Ind. 526 (530).
What we have said in reference to the ruling of the court Harter i>. Eltzroth.
below upon the above question applies to the rulings upon all the other questions propounded to appellant.
A question as to the value of the stock at the time of the transfer to appellant was propounded to the witness, Durham. Upon objection being made to the question, appellant announced to the court that he expected to follow it up by showing that appellee represented the stock to be of some value. Upon that announcement, the court ruled that appellee would have to introduce that evidence first. There was no available error in that ruling, if for no other reason, for the reason that appellant neither excepted to the ruling nor assigned it as a cause for a new trial. 1 Works Pr., section 929; Fryharger v. Andre, 106 Ind. 337; Hampson v. Fall, 64 Ind. 382; North Western Mutual Life Ins. Co. v. Heimann, 93 Ind. 24.
The general statement by appellant, that he expected to follow up the question to Durham by showing that appellee represented the stock to be of some value, can not be extended to, and so connected with, the questions propounded to appellant, as a witness, as to fill the demands of the rule which requires that, in order to constitute available error in ruling out a question, the interrogating party must announce to the court what he expects to elicit from the witness in answer to the question. The offer must be to make the proof by the same witness to whom the question is propounded.
Appellant further contends that the court below erred in overruling his demurrer to the second paragraph of appellee's answer. There is no available error in that ruling.
In the first place, that paragraph of answer negatives all of the allegations of warranty and fraud set up in appellant's complaint.
Appellee did not, by the sale and transfer of the certificates of stock, impliedly warrant that the turnpike company had been incorporated in strict compliance with the statute authorizing such corporations. There was a statute authorVOL. 111.—11