v. Lewis, 115 Ind. 490, 18 N. E. 7; Board v. Gruver, 115 Ind. 224, 17 N. E. 290, and cases cited." In Lowry v. Rainwater, supra, it is said: "Forfeitures of rights and property cannot be adjudged by legislative acts, and confiscations without a judicial hearing after due notice would be void as not being due process of law." In King v. Hayes (Me.) 13 Atl. 882, a case involving the exact question before us, it was said: "We are of opinion that so much of the provisions of Rev. St. c. 124, § 42, as allowed the defendant to condemn, conclusively fix the value of, and destroy the defendant's horse, without any notice, actual or constructive, to the owner, in order that he might be heard, is in violation of the fundamental law, which prohibits any person being deprived of his property without due process of law. Dunn v. Burleigh, 62 Me. 24. Such have been the adjudications even in regard to the destruction of intoxicating liquors intended for unlawful sale. Fisher v. McGirr, 1 Gray, 1; Lincoln v. Smith, 27 Vt. 355." See, also, Pearson v. Zehr, 138 Ill. 48, 29 N. E. 854, where it is held that the slaughter by a live-stock commission of animals supposed to be suffering from contagious disease does not conclude the owner from recovering, if it cannot be shown that such animals actually had such disease, and it was said: "To permit the commissioners to determine, ex parte, that some of the horses had the glanders, and that the others had been exposed thereto, and to hold that determination a justification for slaughtering the horses, without imposing upon the appellants the burden of establishing affirmatively the actual existence of such disease and such exposure, would not be a valid exercise of the police power of the state, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law." A like decision was rendered in Miller v. Horton, 152 Mass. 540, 26 N. E. 100, and it was there held that, in the absence of disease constituting a nuisance, the legislature could not extend the right to slaughter without notice and an opportunity to the owner to be heard.

In holding that the statute is invalid, in permitting the destruction of the property of a citizen without due process of law, we would not be understood as holding that the question as to the existence of the statutory cause for destruction must be submitted to a court of justice, nor that a notice, such as is required in ordinary civil or criminal proceedings in such courts, is necessary; but some notice, and a hearing before some tribunal, must be provided. The action of the circuit court in adding to the terms of the statute, by instructing as to the necessity for notice, it is conceded, could not remedy the omission from the statute. The finding of the jury negatived the existence of notice, and, under the instruction given, presents the question as to the validity of the statute without notice. The judgment is affirmed.

(142 Ind. 113)

GRIMES v. BUTSCH et al. (Supreme Court of Indiana. Sept. 24, 1895.) RIGHTS OF GUARDIAN--CUSTODY OF WARD.

In habeas corpus for the custody of a minor, it appeared that the petitioner was ap pointed guardian in Missouri, where he resided at the commencement of the proceedings, and where the property of the ward was situated; that the ward, 17 years old, though provided with a good home and educational advantages by his guardian, ran away to his sister in Indiana, who was only 22 years of age, and otherwise unfit to have the custody of her brother. The Missouri statute provides that a guardian shall have the control of his ward's person, and charge of his support. Held, that petitioner was entitled to the custody and control of the ward. Appeal from circuit court, Vanderburg county; W. M. Blakey, Special Judge.

Application by Granville P. Grimes for a writ of habeas corpus against Nellie Butsch and another to obtain the custody of a minor child. From a judgment for defendants, petitioner appeals. Reversed.

Charles L. Wedding, for appellant.

JORDAN, J. This was an application under section 1107, Rev. St. 1881 (section 1121, Rev. St. 1894), by the appellant, as the guardian of the person and estate of Frank M. Cooper, a minor, for a writ of habeas corpus against the appellee to obtain the custody of his said ward, who was alleged to be restrained by the appellees, Nellie Butsch and husband. By their return to the writ issued upon the petition, appellees denied the allegations therein, and alleged and recited other facts tending to show that the appellant had neglected to discharge his duties as guardian, and was not fit to have the custody and control of the ward. A hearing by the court of the petition resulted in a finding against the guardian, and thereupon the court made and entered the following order and judgment: "It is therefore ordered and adjudged by the court that the said Granville P. Grimes, the guardian of the said Frank M. Cooper, place the said ward in school at the military academy known as 'Riverview,' located in the city of Poughkeepsie, in the state of New York, and that said guardian provide and furnish the necessary funds for that purpose, out of the estate of his said ward in his hands, and that he do this without delay. It is further ordered by the court that said ward, Frank M. Cooper, be permitted by his guardian to spend the time of his vacation either with his sister, Mrs. Nellie Butsch, or with his guardian and relatives in Missouri, as he, the said ward, may prefer; and that said Granville P. Grimes pay the costs herein from the estate of his said ward." A motion for a new trial was filed, and, while the same was pending, the record recites that the court, being informed that the plaintiff had refused to carry out the order and judgment of the court first entered, did then order that the defendant Nellie Butsch, sister of the ward, be, and was, authorized and directed

to place said ward in said school at Poughkeepsie, N. Y., and that the ward's estate be chargeable with the expenses of his education at said school. To this order, appellant objected and excepted, and thereupon his motion for a new trial was overruled, to which ruling he excepted. The error assigned, and the questions here presented, arise upon the action of the lower court in overruling the motion for a new trial, and are based upon the evidence in the cause.

We have not been favored with a brief upon the part of appellees, and are not informed of the reasons, if any, which they urge to sustain the judgment below. The evidence which is in the record clearly establishes-and the same is not successfully controverted-the following facts: That the appellant is a foreign guardian of the person and estate of Frank M. Cooper, a minor child of David L. Cooper, deceased. That appellant was appointed guardian of said ward by the probate court of Monroe county, in the state of Missouri, at which county the guardian then and still resides. That the father of said minor resided and died at said county of Monroe. That, subsequent to the death of the father, the mother also died, a resident of the aforesaid county, leaving the guardian as the only legal protector of this ward. That, prior to the ward coming to the state of Indiana, he resided in said Monroe county, at the home of his guardian. There all his relatives resided, except the appellee his married sister, who resides at Evansville, Ind., and all of his estate, both real and personal, is situated in that county, and the guardianship is still pending and under the control of the probate court thereof. This ward is an inexperienced youth of about 17 years of age, easily susceptible to the influences of his sister, the appellee, who, as it appears from the evidence, is only 22 years of age, and, for other reasons, is wholly unfit to have the control or custody of her brother. The evidence shows that the guardian is an exemplary man in all respects; that he was an especial friend of the boy's father, and accepted the appointment of guardian by reason of the father's request, made in his last sickness. He provided the ward with a good home at his own house, and placed him in the Missouri Valley College, at Marshall, Mo., for the purpose of giving him a good education. He was appointed guardian in 1885. The ward's estate at that time amounted to about $20,000, and by the management of the guardian it has been increased until it amounts to over $31,000. During the fall of 1894, through the persuasions of the appellee Nellie Butsch, the ward was induced to run away from the school where the appellant had placed him, and come to Evansville, Ind., to reside with her at her home in said city. Appellant, together with a half-brother of the ward, came to Evansville to induce him to return. Appellee refused to permit the boy to leave, and

informed the appellant that he dared not take her brother back to Missouri, and, if he attempted to do so, she would call upon the police to prevent it, and further stated that the matter must be settled in the courts. The statute of the state of Missouri, which was in evidence, provides that "the guardian of the person, whether natural or legal, shall be entitled to the charge, custody, and control of the person of his ward, and the care of his education, support and maintenance," etc. Rev. St. 1889, § 5297. Here is a mandatory, positive, and controlling law of the state wherein the guardian and his ward are domiciled, and in the probate court of which state the guardianship is pending. The appellant's rights under this statute, in this respect, are higher than those of the relatives or friends of the ward. There are no reasons or grounds apparent from the evidence that would authorize or justify the trial court in denying to the appellant the rights, relative to his ward, granted to him by this statute. It cannot be controverted upon legal grounds, we think, that where, as in this case, the right of the guardian to the custody, control, and education of his ward is clearly shown under the law, it is the duty of the court to yield thereto, and award to him this right. This right, although existing under the laws of a sister state, will be respected and enforced, upon a proper showing, by the courts of this state. If it was supposed that the custody of this ward, and his care and education, and the management of his estate, should be changed, application therefor ought to be made to the proper court in the state of Missouri for an examination and determination of that question. The ward, under the facts herein, had no power to change his domicile by running away from his guardian in the state of Missouri, and coming to this state. Appellant, as the guardian in Monroe county, Mo., was entitled, under the law of that state, to have charge of this minor, in order to enable him to provide for his protection, maintenance, and education. It is manifest, therefore, that the finding and order of the court are not sustained by the evidence, and are contrary to the law. The judgment of the trial court is reversed, at the cost of the appellees, Christopher C. and Nellie Butsch, and the court is directed to sustain the motion for a new trial, and to proceed in accordance with this opinion.

(141 Ind. 701)

HUTTS et al. v. MARTIN (Supreme Court of Indiana. Sept. 18, 1895.) APPEAL-PARTIES.

Where plaintiffs, and 10 out of 14 defendants, have been omitted in the assignment of errors, the appeal will be dismissed.

Appeal from circuit court, Montgomery county; J. F. Harney, Judge.

Action against Milton T. Hutts, John B. Martin, and others. From the judgment,

Hutts and two other defendants appeal, making Martin appellee. Dismissed.

L. J. Coppage, for appellants. Paul & Bruner, for appellee.

HOWARD, C. J. An examination of the record and briefs before us would seem to lead to the conclusion that this case has been carefully tried, and a correct judgment rendered. We are first met, however, with a motion to dismiss the appeal; several reasons being given, one that the assignment of errors does not name all the parties to the judgment. Omitting those who filed disclaimers at the trial, there remain as parties to the judgment and decree the 2 plaintiffs and 14 defendants. In the assignment of errors, the plaintiffs are wholly omitted, as are also 10 of the defendants. Three defendants only are made appellants, and one appellee. In the final judgment, the court, after making partition of the real estate to the plaintiffs and certain of the defendants, subject to liens in favor of parties named, decreed that "all other defendants in said complaint have no title, claim, or interest whatever in said real estate." In Snyder v. State, 124 Ind. 335, 24 N. E. 891, Mitchell, J., citing authorities, and referring to the sixth rule of this court, that "the assignment of errors shall contain the full names of the parties," said: "The assignment of errors is the appellant's complaint, and the only parties before this court, or over whom it acquires jurisdiction, are those whose names appear therein." It is true that parties who do not wish to appeal may decline to do so, and their names will be considered as stricken from the assignment of errors. But in the case before us, none of the omitted parties have declined to join in the appeal. Their rights are certainly involved. In favor of some of them, title was awarded to parts of the real estate, while against others title was quieted. The merits of the appeal could not be passed upon without having all these parties before the court. See Gourley v. Embree, 137 Ind. 82, 36 N. E. 846; Bozeman v. Cale, 139 Ind. 187, 35 N. E. 828; Elliott, App. Proc. §§ 322, 401, and authorities cited. The appeal is dismissed.

(143 Ind. 511)

BOWEN, County Treasurer, v. HESTER.1 (Supreme Court of Indiana. Sept. 19, 1895.) ESTABLISHMENT OF HIGHWAYS - STATUTORY PROCEEDINGS-REPORT OF VIEWERS-AMEND

MENT BY COMMISSIONERS-NOTICE.

1. The board of commissioners have authority, in proceedings to establish a highway, to amend the report of the viewers and engineer appointed by them to examine the proposed route, and report the lands that will be benefited thereby, by adding a list of the lands so reported, and to assess such additional lands together with those reported as benefited by the viewers.

2. The record of the board of commissioners of proceedings before them to establish a highway cannot be collaterally attacked.

1 Rehearing denied.

3. Where the record of the board of commissioners of proceedings before them to establish a highway shows that the viewers' report, as originally submitted, was amended to include additional property in the assessment for benefits, a petition, in an action to restrain the collection of such assessment, which alleges that the board orally instructed the viewers not to report petitioner's land, it having subsequently been included by the amendment, is demurrable.

4. That certain property was not embraced in the report of the viewers, as benefited by the establishment of a proposed highway, will not deprive the commissioners of jurisdiction, where the notice of the return of the report, and of the time that the commissioners would meet to hear it, has been duly published, as required by Rev. St. 1894, § 6860 (Rev. St. 1881, § 5096).

Appeal from circuit court, Putnam county; S. M. McGregor, Judge.

Action by James M. Hester against Willard A. Bowen, as county treasurer, to restrain the collection by defendant of certain assessments against plaintiff's land to pay the expenses of constructing a highway. From an order overruling defendant's demurrer to the complaint, he appeals. Reversed.

Frank D. Ader and Henry H. Mathias, for appellant. G. C. Moore, D. E. Williams, and S. A. Hays, for appellee.

MCCABE, J. The appellee sued the appellant to enjoin the collection of certain assessments against his land to pay the expense of the construction of the Mt. Meridian and Putnamville free macadamized road, constructed by the board of commissioners of said Putnam county under the act approved March 3, 1877. Burns' Rev. St. 1894, §§ 68556867 (Rev. St. 1881, §§ 5091-5103). It is assigned for error here that the circuit court overruled appellant's demurrer to the complaint, sustained appellee's demurrer to the second paragraph of appellant's answer, and overruled his motion for a new trial. The complaint is so long, with many needless averments and repetitions, making 48 pages of the transcript, that we will only outline so much thereof as appellee has seen fit in his brief to summarize, discuss, and rely on.

The principal objection made in the complaint against the validity of the assessment against appellee's land is that he, in substance, alleges that the viewers and engineer -the only ones ever appointed by the board to examine, view, and straighten said road, and report to the commissioners the public necessity of the improvement, the damages claimed, the estimate of the expense thereof, and the lands that would be benefited thereby, and ought to be assessed for the expense of the same-did not, in their report, state that appellee's land would be benefited by such improvement; that, notwithstanding the failure of such viewers to report the appellee's land benefited by the proposed improvement, said board had caused his lands to be assessed $47 on the first assessment, and $18.50 on a second assessment, to meet a de ficiency in the first assessment, to pay the

expense of said improvement, and said sums had been placed on the duplicate as delinquent, and the same was in the hands of the defendant, as treasurer, who was threatening to proceed, by levy and sale of plaintiff's property, to collect said sums. It has been repeatedly held by this court that lands cannot be taxed for such an improvement in a sum exceeding the benefits which accrue to the land by reason of the improvement. Board of Com'rs v. Fullen, 111 Ind. 410, 12 N. E. 298; Campbell v. Board of Com'rs, 118 Ind. 119, 20 N. E. 772; Guckien v. Rothrock, 137 Ind. 355, 37 N. E. 17. The fourth section of the act (Burns' Rev. St. 1894, § 6858; Rev. St. 1881, § 5094) provides that the viewers and engineer shall report to the board at their next regular session, showing, among other things, the lands that will be benefited by, and ought to be assessed for, the expense of such improvement. The next section provides, among other things, that, upon the return of said report, if, in their opinion, public utility require it, they shall enter an order of record that the improvement be made, which order shall state, among other things, the lands which shall be assessed for the expense of the same. And the next section provides that the commissioners shall immediately appoint three freeholders a committee to apportion the estimated expense of said improvement upon the real property embraced in the order aforesaid, and report the same to the county auditor. It is therefore contended by the appellee that the commissioners had no jurisdiction to embrace any lands in their record entry, ordering the improvement to be made, other than those specified in the report of the viewers and engineer; and it is alleged in the complaint that no other such lands were embraced in said order, and that plaintiff's lands were not so embraced, and therefore they had no power, in appointing the committee to apportion expense, to authorize such committee, and it is alleged that they did not authorize such committee, to apportion any of such expense on any other lands than those embraced in the order aforesaid. And hence it is contended that the action of the apportioning committee in apportioning a part of the expense on appellee's land, as is alleged they did, was without authority of law, and void, and, therefore, the board had no power or jurisdiction to order appellee's land to stand assessed. Hence it is argued that its assessment is void. But it is shown in the complaint that the appellee's land lies within two miles of the contemplated improvement, and is therefore liable, under the act, to assessment for such improvement, if benefited thereby. It is further shown in the complaint that the report of the apportioning committee was filed with the auditor on September 4, 1884, and that he gave notice, by publication in a newspaper printed and published in Putnam county, of the filing of such report, and that on November 18, 1884,

the board would meet at his office to hear the same, and that on said day they met at said office to hear said report, and entered the following order: "Comes now McC. Hartley, auditor, and presents the report of John W. McNary, William Broadstreet, and James H. Sparks, viewers in the cause filed within, and said report is as follows, after correction made by the board from the evidence submitted." Then the complaint charges that no order was made confirming the report of the apportioning committee, either as made or corrected, but that the auditor, before entering the list of lands contained in said report, made the following entry: "And now comes said viewers and report the folalowing lands and lots benefited, which said land and lots are by the board added to the foregoing list, and, after correction, to stand assessed for the construction of the Mt. Meridian and Putnamville free macadamized road." Then the complaint charges "that said pretended entry was inserted by the auditor in the copy of said report, and was no part of said report, and the commissioners made no correction of said report showing said lands were benefited." This amended report contained appellee's lands as among those benefited by the contemplated improvement.

The allegation that the commissioners made no correction of the report of the viewers showing what lands were benefited is a direct contradiction of what the complaint itself shows that the commissioners' record states. Both entries, quoted into the complaint, taken together, show that, on evidence submitted and considered by the board. it corrected the report of the viewers and engineer, and added certain lands and lots benefited to the list of lands already contained in that report, making said report include, as the complaint shows, appellee's land. The averment that the report of the apportioning committee was never confirmed by the board is scarcely less a contradiction of what the complaint discloses that the commissioners record contains. The final order quoted into the complaint was that "said lands and lots are by the board added to the foregoing list, and, after correction, to stand assessed," etc. This pretty clearly implies that the amended report of the apportioning committee is confirmed, because such lands and lots could not stand assessed without a confirmation of the report of the apportioning committee. In Stoddard v. Johnson, 75 Ind., at page 31, it was said: "And it is not necessary that the record of the board shall show an express finding upon such facts. Such finding will be presumed in support of the proceedings, if the record shows an order granting the petition, or for the taking of the steps necessary to the accomplishment of the end designed. In this case the order for the appointment of the viewers and engineer, and fixing the time and place of their meeting, is equivalent to a find

ing of the facts necessary to have been found, and to an adjudication of the board that the petition itself is sufficient." And in Million v. Board of Com'rs, 89 Ind., at page 13, it was said: "Nor was it necessary, we think, that the finding of these jurisdictional facts by the county board should be shown by its record in express terms." Under these decisions, the complaint states enough of the commissioners' record to show, at least, an implied, if not an express, confirmation of the report. Section 5 of the act (Burns' Rev. St. 1894, § 6859; Rev. St. 1881, § 5095), after providing, upon the return of the report of viewers, for the entry of an order upon the record that the improvement be made upon the conditions therein specified, further provides that: "If, at any time after making such final order, the commissioners shall find that there has been an omission of lots or lands within the territory sought to be assessed, or that there has been manifest injustice in the apportionment of taxes, or that public necessity requires any alteration in the manner of the improvement as ordered they are authorized to make such addition and reapportionment as they may deem just and proper." The complaint before shows that the commissioners' record states that they did the very thing that the abovequoted provision authorized them to do, namely, to make such addition and reapportionment as they deemed just and proper of omitted lands or lots within the territory sought to be assessed. That territory comprised all lands and lots within two miles of the contemplated improvement, as provided in section 4 of the act. Burns' Rev. St. 1894, § 6858 (Rev. St. 1881, § 5094). In Million v. Board of Com'rs, supra, this court, quoting from Ricketts v. Spraker. 77 Ind. 371, in speaking of this provision of section 5, said: "The statute confers ample authority upon the commissioners to make all needed corrections, and to supply all omissions.

us

* The presumption is that they did their duty, and placed all the lands upon the list. It was, at least, incumbent upon the appellants to show, not only that the committee omitted lands, but that other public officers did not supply the omission." To the same effect is Gavin v. Board of Com'rs, 104 Ind. 201, 3 N. E. 846.

The averment that the commissioners did not correct the report of the viewers so as to show that appellee's lands were benefited, or that the apportionment report was not confirmed, as before observed is a contradiction of the commissioners' record. It is true that the commissioners' record, as stated in the complaint, is not as full and complete as might have been made; but there is enough stated to indicate that the board amended the report of the viewers and engineer so as to add the omitted lands, and show that they were benefited by the improvement, as they were authorized to do by section 5 of the act, and that the apportion

ment report, as corrected, was confirmed by the board. It was said in Million v. Board of Com'rs, supra, quoting from Bittinger v. Bell, 65 Ind. 445, that: "It is not to be expected that the orders of a board of commissioners will be drafted with that degree of legal accuracy and precision of statement usually found in orders, decrees, and judgments of the circuit court. There are no es tablished forms or precedents for the orders of a board of commissioners; and, if those orders are right in substance, their form will be of little consequence." If the board had Jurisdiction, the record of its proceedings and orders import absolute verity, and cannot be collaterally impeached or contradicted, as was attempted to be done by the complaint. Million v. Board of Com'rs, supra; Ricketts v. Spraker, supra; Stoddard v. Johnson, supra; Davidson v. Koehler, 76 Ind. 398; Sauer v. Twining, 81 Ind. 366. Besides, the twelfth section (Burns' Rev. St. 1894, § 6866; Rev. St. 1881, § 5102) provides that: "No person shall be permitted to take advantage of any error committed in any proceeding to lay out, construct, or improve any road under and by virtue of this act; nor of any error committed by the county commissioners or by the county auditor, or by the engineer or surveyor or other person or persons in the proceedings to lay out, construct or improve any such road; nor of any informality, error or defect appearing in the record of such proceeding, unless the party complaining is affected thereby." In Million v. Board of Com'rs, supra, in speaking of this provision, this court said: "Under this provision of the statute, it is not enough for the complaining party to show that he is affected by the proceeding to lay out, construct, or improve any road, but he must clearly show, we think, that he is injuriously affected, and in what respect, by the informality, error, or defect of which he complains, and that the same cannot be corrected by the county board, before he can be permitted to take advantage thereof by an action in the circuit court." To the same effect is Stoddard v. Johnson, supra. There is no such showing in the complaint. There is no statement, nor attempt to state, that appellee's land was not within two miles of the proposed improvement, or that it was not benefited every cent that was assessed against it by the improvement. But it is alleged in the complaint that the commissioners ordered the viewers and engineer not to report the appellee's land, along with about 4,000 acres of other lands lying within two miles of said improvement, and west of a certain described line, as benefited, and, in obedience to said order and direction, said viewers and engineer did not report any of said lands west of said line as benefited by said improvement, and the appellee's lands were among them. It is therefore urged that, as appellee's land was found not embraced in the report of said viewers as benefited, appellee had no occasion to take any