poration, but as stock it belongs to the holders of the tax paid upon its capital stock. By the of the shares into which the capital is divided. term "all its stock," which is employed in In that case the capital stock of the railroad section 270 of our Statute, is not meant the company was exempt by its charter from tax-aggregate of shares into which the capital ation, and it was held that the shares were for stock of a corporation is divided, but the monthat reason also exempt. eyed capital which was produced by the payment by the stockholders for their shares. "Taxes are defined as being the enforced proportional contribution of persons and property levied by the authority of the State, for the support of government and for all public needs. By the laws of the Province of Quebec, the entire capital stock of the Eastern Townships Bank was made to contribute its proportion of the expense of supporting the government under which it existed and transacted business. The question before us is not what the Legislature of this State had the power to do in respect to the taxation of shares held by our citizens in a foreign corporation when the capital stock of the corporation has been taxed in the State in which it is located. We are to construe our Statute as it stands; and it seems to us that the only reasonable construction to be given it is that it was intended to provide for such a case as this; that, the capital stock of this corporation having borne its proportion of the public burden in one jurisdiction, its shares held here are exempt from taxation. We think the word "State" employed in the Statute should be construed to mean a foreign State as well as one of the United States. The Statute was enacted for the relief and benefit of stockholders; therefore, upon the reason of the law, shares of stock in a foreign corporation should be exempt as well as those in a corporation located in one of the States of this Union. The view that we have taken of the first question in the case renders it unnecessary to consider the other questions presented in the exceptions.

Courts and law writers doubtless mean the same thing. They only differ in forms of expression. Though the capital stock of a corporation is produced by the payment of subscriptions for shares, the aggregate of shares and capital stock are not identical. When the capital is divided into shares and sold, the corporation ceases to be the owner of them. They then become the private property of the individual holders, while the money paid for them becomes the property of the corporation,-its capital or capital stock, with which to transact the business for which it was organized. Shares and stock are thus closely related. The court said in Louisville First Nat. Bank v. Kentucky, 76 U. S. 9 Wall. 353, 19 L. ed. 701, that shares, in their aggregate totality, are sometimes called the "capital stock" of a bank, though a different thing from its moneyed capital. Cooley, Taxn. 169, says: "So a tax on the shares of stockholders in a corporation is a different thing from a tax on the corporation itself, or its stock, and may be laid irrespective of any taxation of the corporation, when no contract relations forbid." Upon this ground the Supreme Court of the United States, in the cases referred to by defendant's counsel, has held that shares of stock in a corporation may be taxed although a tax has been laid upon the entire capital.

Counsel for the plaintiff concede that "shares of stock" and "capital stock" are not one and the same thing, and that it is within the power of the Legislature to lay a tax upon both; but they contend that, as the value of the shares depends upon the amount and value of the capital, a tax upon the latter is in effect a tax upon the former; that the amount of the dividends is necessarily diminished by the amount

Judgment reversed, and judgment for the plaintiff to recover the value of the property, as appears in the agreed statement, with interest.

INDIANA SUPREME COURT.

John O. HENDERSON, State Auditor, Appt.,

v.

Board of COMMISSIONERS OF the State
SOLDIERS & SAILORS MONUMENT.
(....Ind.....)

1. An appropriation of a certain sum
for a state soldiers' and sailors' monu-

NOTE.-Appropriation of state revenues.

Whether an appropriation shall or shall not be made is a legislative question over which the judicial department has no supervision or control. Smith v. Myers, 7 West. Rep. 90, 109 Ind. 1; State v. Haworth, 7 L. R. A. 240, 122 Ind. 462; Wilson v. Jenkins, 72 N. C. 6; Goddin v. Crump, 8 Leigh, 154; Burch v. Earhart, 7 Or. 58; Franklin v. State Board of Examiners, 23 Cal. 173; People v. Pacheco, 27 Cal. 175.

Separate resolutions of each branch of the Assembly authorizing payments cannot amend or

ment by an Act requiring bonds from commissioners that the cost shall not exceed that sum with donations and contributions can be used only for the structural work of the monument, and not to pay the compensation and expenses of commissioners, secretary, and architect, or expenses of advertising for, and procuring, the design, or for other incidental expenses authorized by the Act.

vary the provisions of a statute making appropriations. Rice v. State, 95 Ind. 47.

To an appropriation nothing more is requisite than a designation of the amount and the fund out of which it shall be paid. People v. Brooks, 16 Cal. 49.

A direction in a statute to the proper officers to pay money out of the treasury upon a given claim, or for a given object, may, by implication, include in the direction an appropriation. Ristine v. State, 20 Ind. 328.

Setting apart so much of the county revenue as is necessary to pay the cost of repairs provided for

Messrs. W. E. Niblack and A. J. Bev- two dollars and sixty cents ($90,982.60) will eridge for appellees.

For secretary's salary

For printing and stationary
For superintendence

For advertising

For removal of Gov. Morton's Monument out of the way

Making a total of

1,817.25 ruled and the appellant, excepting to the 1,401.77 ruling, declined to plead further. Judgment 2,265.50 was rendered, awarding a peremptory writ 795.11 of mandate, and from such judgment this appeal is prosecuted.

The appellee insists that the sum of $200,000 appropriated by that Act was intended by the Legislature to be devoted solely to the structural expense of erecting the monument; that no part of it was to be used for the payment of incidental expenses, and that all incidental expenses are to be paid from the general fund in the state treasury. The appellant's contention is, that the sum appropriated was intended to cover the entire amount to be paid by the State toward the erection of the monument, and that there is no appropriation of any other sum for the payment of incidental expenses.

203.25 The questions presented call for a construc29, 187.53 tion of the Act approved March 3, 1887, "Your petitioners say that said several known as the State Soldiers' and Sailors' sums of money are merely incidental ex- Monument Act. Acts of 1887, 30; Elliott's penses; that no part of them are structural Supp. § 2048. expenses; but notwithstanding the fact that said sums are purely and solely incidental expenses, they have nevertheless been paid by the treasurer of state upon warrants issued by the Auditor of State, and against and in the face of the repeated request of said Board of Commissioners not to do so, and their repeated protest against so doing, have been by said Auditor of State charged to and against the fund of two hundred thousand ($200,000) dollars created and set apart by the above-recited Act, for the erection of a soldiers' and sailors' monument, known as the Monumental Fund;' that they, said petitioners, have demanded of John O. Henderson, who is the present Auditor of State, that he shall transfer the several sums, all of which are purely incidental expenses, from said monument fund, and charge the same to and over against the general fund in the hands of the treasurer of state, for the pay ment of current expenses, and that the said John O. Henderson has failed and refused, and still fails and refuses, to comply with their said demand either in whole or in part or in any respect.

"Wherefore, your petitioners pray that an alternative writ of mandate shall be issued and directed to the said John O. Henderson, requiring him to so transfer said several sums of money so paid and classified, as merely incidental expenses, from said monument fund, and to charge the same to and over against what is known as the general fund in the state treasury, as above stated, or else to show cause why he shall not or ought not to do so, and will ever pray.

66

"William E. Niblack, "Albert J. Beveridge, Attorneys for Petitioners. "George J. Langsdale, one of the above named petitioners, being duly sworn, says that he is the president of said Board of Commissioners of the State Soldiers and Sailors' Monument, and that he is fully conversant with the facts and matters set out in the foregoing petition; and that the matters and things alleged in the foregoing petition are true, as he is informed and verily believes.

"George J. Langsdale, President. "Subscribed and sworn to before me, a

notary public in and for the County of Marion, State of Indiana, this 20th day of April,

1891.

66

(Seal) Eva Edwards, Notary Public." The appellee appeared, waived the issuance of an alternative writ of mandate and demurred to the petition on the ground that it did not state facts sufficient to entitle the petitioner to an alternative or peremptory writ of mandate. The demurrer was over

The provisions of the Act in question are susbtantially as follows:

"Section 1. The sum of two hundred thousand dollars . . . is hereby appropriated, out of any moneys in the treasury not otherwise appropriated, for the purpose of erecting a State Soldiers' and Sailors' Monument, said appropriation to be used in connection with such other funds as have already been or may hereafter be donated and contributed for that purpose.

Section 2 provides for the appointment of five commissioners, prescribes their oath of office, requires them to each give bond in the sum of $5,000 for the faithful performance of their duties; and further conditioned that the cost of the monument shall not exceed the appropriation, with donations and contributions, fixes their compensation at four dollars per day and traveling expenses and provides for the filling of vacancies.

Section 3 prescribes certain of their duties, locates the monument in Circle Park in the City of Indianapolis, and authorizes the making of certain contracts with the city.

Section 4 requires the Commissioners to prepare, select or adopt a design for the monument, to advertise for plans, designs and specifications; to offer a premium of $1,000 for the best, and $500 for the second best design, with authority to reject any and all designs offered and to advertise as often as may be necessary to procure suitable designs and plans, and authorizing them to employ experts to examine all plans and test all es

timates submitted.

Section 5 authorizes the letting of contracts for the work and prescribes the manner of paying the contractors.

in the erection of the monument, and requires Section 6 prescribes the material to be used the architect to give bond, with sureties, in the penal sum of $10,000, "conditioned that said plans shall be perfect and complete for the purpose designed and intended, and that the monument shall be fully completed and finished as a whole, and in every part, for and within the price and cost estimated and fixed by such architect; and which price or cost

shall be stated in his proposition or submis- | than $29,000. It is not claimed that any of sion of plan and specification."

This section also forbids the making of any change in the plans or specifications which will increase the aggregate cost of the monument so as to exceed the cost prescribed in the

Act.

Section 7 authorizes the appointment of a secretary, prescribes his duties, and fixes his compensation at $75 per month.

Section 8 authorizes the commissioner to employ a superintendent, whose duties and compensation they are authorized to fix.

Section 9 forbids members and officers of the Board to have any interest in any contract connected with the erection of the monument, and prescribes penalties.

Section 10 makes the architect whose plans are accepted the supervising architect, requires of him a bond as such supervising architect, and provides for his compensation. The case of Campbell v. State S. & S. Mon. Comrs., 115 Ind. 591, involved the construction of this Act. It was there held that it was the intention of the Legislature that the entire sum of $200,000 appropriated should be devoted, so far as used at all, to the structural work of the monument, and that all incidental expenses, such as are involved in this case, must be paid from the general fund in the state treasury, and that there was sufficient in the Act to operate as an appropriation, authorizing the Auditor of State to draw warrants on the treasurer of state to pay the same. That case is vigorously attacked by the appellant, and we are asked to overrule it. It is manifest that if Campbell v. State S. & S. Mon. Comrs. was correctly decided, it is decisive of the case now before us. After careful consideration of the question, we are of the opinion that the conclusion reached in Campbell v. State S. & S. Mon. Comrs. was correct.

these were not necessary to the proper prosecution of the work. It is not possible to foretell how much time will still be required for the completion of the work; and, as a consequence, how much additional must be paid for salaries and other incidental expenses.

When the commissioners advertised, inviting plans and specifications, upon what basis were architects invited to make their estimates? Did the Legislature intend to say to them, "First guess on the probable amount of the $200,000 which will be absorbed in incidental expenses, and bind yourself with sureties in the penal sum of $10,000 that your guess is right?"

To give to the Act the construction contended for by the appellant would be to hold that the Legislature required at the hand of the commissioners and architects very unreasonable, if not impossible, things; but, if the intention of the Legislature was that the $200,000 should be devoted alone to the structural work, the commissioners could easily select a design and let a contract for the erection of a monument within the limits named.

The case of State House Comrs. v. Whittaker, 81 Ind. 297, is in point. The Legislature appropriated $2,000,000 for the building of, a new state house, and limited the entire cost to $2,000, 000. The provisions of the two Acts are very much alike; indeed, the Act providing for the erection of the monument is in many of its provisions, and in some entire sections, literal copies of the Act providing for the erection of a new state house, which will be found in the Acts of the Special Session of 1877, page 68. Like the Act now in question, that Act not only in express terms limited the cost of the building to $2,000,000, but also required the giving of bonds, both by the commissioners and by the architect. The bond required of the commissioners was conditioned that the cost of the building should not exceed $2, 000,000, and the bond required of the archi

be "fully completed and finished as a whole, and in every part, for and within the cost and price estimated and fixed by such architect. The court held that the sum of $2,000, 000 might be expended in the construction of the new state house; and that in addition thereto, all incidental expenses, such as salaries, traveling expenses of the board, compensation of architect, secretary and superintendent, rents, etc., might be paid out of the fund denominated the new "state house fund;" but that such expenses should not be deducted from the $2,000,000 which might be expended in what might strictly be called the construction of the building.

Section one of the Act appropriated $200,000 for the purpose of erecting a monument. Section 4 provides for advertising for plans and specifications for a monument to cost not exceeding that amount. The commis-tect was conditioned that the building should sioners and architect each and all give bond that it shall not exceed in cost that amount. If the incidental expenses are all to be deducted from the $200,000, how can the board of commissioners or the architect act safely and intelligently in the preparation and acceptance of plans and specifications? If they understand that a certain definite sum is available for structural work, they have a tangible basis upon which to calculate. The Act compels the incurring of certain incidental expenses, the amount of which is necessarily uncertain. No one can tell in advance what events may occur to delay or prolong the prosecution of the work, or how much time the Commissioners may have to give to it. It cannot be foretold how often they may have to advertise for plans and specifications before such plans will be submitted as will meet the requirements. Nor could they tell in advance how often they might be compelled to employ experts to assist in the selection of plans and test estimates. Already incidental expenses have been incurred and paid amounting to more

So, in this case, we hold that the sum of $200,000 appropriated for the erection of the monument can only be expended in the actual structural work, and that no part of it can properly be expended in the payment of merely incidental expenses.

Counsel for appellant insists that the case of State House Comrs. v. Whittaker, supra, is not authority because a special tax was levied for the collection of a special state

in office for the use of said county" accepted by an entry upon the county records as a deed "to and for the use of" said county, gives the legal title to the county and not to the commissioners, where there was no statute designating their corporate name and style.

house fund, while there is no special monument fund. This cannot affect the question, as the application of the sum limited for the erection of either structure is not made to depend upon the amount of money belonging to any special fund. The board of state house commissioners were limited to the expenditure of $2,000,000 in the erection of the state house, without regard to the amount realized from the special tax levied for that pur-3. A conveyance "for the use of" a

pose.

The question remains, Is there an appropriation authorizing the Auditor of State to draw warrants on the treasurer of state for the payment of the incidental expenses?

In Campbell v. State S. & S. Mon. Comrs., supra, the court said: "It is true, as claimed, that no money can be rightfully drawn from the treasury except in pursuance

of an appropriation made by law, but such an appropriation may be made impliedly, as well as expressly; and in general as well as in specific terms.

2.

Removal of a county seat, fifty-six years after its location on land conveyed for such use, does not make a total failure of the consideration which will cause a reversion to the grantor.

county "in consideration of the seat of justice having been permanently established" at a certain place, is not on a condition subsequent that the county seat remain there and no reversion is worked by removal of the county seat.

(April 3, 1891.)

Miller, J., delivered the opinion of the court:

APPEAL by plaintiffs from a judgment of the Circuit Court for Wayne County in favor of defendant in an action brought to recover possession of certain real estate. AfThe use of tech-firmed. nical words in a statute making an appropriaThe facts are stated in the opinion. tion is not necessary. There may be an apMessrs. Julian & Julian for appellants. propriation of public moneys to a given purMessrs. Fox & Robbins for appellee. pose without in any manner designating the act as an appropriation. It may be said, generally, that a direction to the proper officer or officers to pay money out of the treasThis was an action by the appellants ury on a given claim, or class of claims, or against the appellee to recover certain real for a given object, may by implication be estate in Centerville, Wayne County. The held to be an appropriation of a sufficient complaint was in four paragraphs. A deamount of money to make the required pay-murrer was sustained to the second paraments, "-citing Ristine v. State, 20 Ind. 328. It is possible, as claimed by the appellant, that the language above quoted was outside of the question before the court in that case. It however states the law correctly and we fully approve and adopt it.

The eighth subdivision of section 5611, Rev. Stat. 1881, authorizes the Auditor of State to "draw warrants on the treasurer for all moneys directed by law to be paid out of the treasury to public officers, or for any other object whatsoever, as the same may become payable." The Act providing for the erection of the monument expressly authorizes the incurring of each of said several items of incidental expenses, and directs that the same shall be paid. We think there is a sufficient appropriation to make it the duty of the appellant to draw warrants for the payment of the same. For a very full discussion of what constitutes an appropriation of money, see the case of Carr v. State, 127 Ind. 204, 11 L. R. A. 370.

The judgment of the Marion Circuit is affirmed, with costs.

SUMNER et al., Appts.,

v.

William J. DARNELL.

(.... Ind.....)

Court

1. A deed to certain persons "commissioners of W. County, and their successors

graph, and cause put at issue by answer in
denial. The errors assigned in this court
relate only to the overruling of a motion
made by the appellants for a new trial, and
on exceptions to the conclusions of law upon
the special findings of fact. The motion for
a new trial was predicated upon the alleged
insufficiency of the evidence to sustain the
finding. We have read the evidence care-
fully, and find that it fully and without
conflict sustains the finding of facts made by
the court. The special finding, omitting
description of real estate, is as follows, viz.
"Having been requested by the plaintiffs in
said cause to make a special finding of facts
herein, and conclusions of law thereon, now
find: That William Sumner was a resident
of Centerville, Wayne County, Ind., from
the year 1813 to the year 1840, at which last-
named date he removed to Hamilton County,
Ind., where he died intestate in the year
1868; that he left surviving him as his sole
heirs four children, the plaintiffs in this
suit, and Thomas Sumner, who died in 1883,
leaving, surviving him,
Sumner, his
wife; that between the years 1813 and 1820
the said William Sumner was the owner in
fee simple of
acres of real estate in
the Town of Centerville, and in the vicinity
thereof, and was interested in the develop-
ment of the town; that prior to the year 1816
the county seat of said Wayne County was
fixed at Salesbury, and subsequently, by an
Act of the General Assembly of the State of
Indiana approved December 21, 1816, it was

NOTE.-Conditions in deed for land must be ex-| by inference or argument. Rawson v. Uxbridge

press and certain.

Conditions in a deed of land are not to be raised

School Dist. No. 5, 7 Allen, 125.

To bind the heirs or assigns to the performance