For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER mandatory and exclusive unless the contrary | 87 (Ohio) Use of private property may be clearly appears.-Id. reasonably regulated for public health, safety, and welfare.-Jaeger v. Topper, 82. II. CONSTRUCTION, OPERATION, AND EN-87 (Ohio) Public Utilities Act requiring FORCEMENT OF CONSTITU- telephone company to secure certificate of convenience before exercising license or franchise in a city in which other company operates held not denial of property rights.-Celina & Mercer County Telephone Co. v. Union-Center Mut. Telephone Ass'n, 540. 33 (Ohio) Provision relating to public utilties of municipality held self executing.-Local Telephone Co. v. Cranberry Mut. Telephone Co., 527. 33 (Ohio) Constitutional provisions em-90 (N.Y.) Ordinance regulating holding of powering cities to contract with public utilities meetings on city streets not unconstitutional self-executing.-City of Columbus v. Public as denying freedom of speech.-People ex rel. Utilities Commission, 800. Doyle v. Atwell, 364. 43 (1) (11.) Rights waived by taking part 91 (N.Y.) Ordinance regulating holding of in judicial proceedings without objection.-meetings on city streets not unconstitutional Shoal Creek Coal Co. v. Industrial Commis- as denying right of assemblage.-People ex rel. sion, 218. Doyle v. Atwell, 364. Employer, participating in compensation proceedings, held to have waived right to attack act, because limiting review to questions of law. Id. 46(1) (Ind.) Constitutionality not decided unless necessary.-Fidelity Phenix Fire Ins. Co. of New York v. Purlee, 734. 48 (III.) Burden on one attacking statute to show classification arbitrary.-Stewart v. Brady, 310. 48 (Ind.) Construction supporting statute will be adopted rather than one destroying it. -Eble v. State, 748. VI. VESTED RIGHTS. 92 (III.) Statute permitting attack on confirmed assessments held not invalid as affecting vested rights.-Wessler v. Mud Creek Drainage Dist. of Cass and Morgan Counties, 331. VII. OBLIGATION OF CONTRACTS. (A) Powers of States in General. 117 (Ind.App.) Exercise of police power not impairment of contract.-Union Traction Co. of Indiana v. City of Muncie, 160. Statute will not be held unconstitutional un-117 (Ohio) Provision of United States less clearly prohibited by Constitution.-Id. III. DISTRIBUTION OF GOVERNMENTAL (A) Legislative Powers and Delegation 50 (III.) General Assembly exercises only legislative function.-People v. Clark, 247. 53 (11) Not within power of General Assembly to change judgments based on judicial construction of statute.-People v. Clark, 247. 57 (III.) Judgment of Supreme Court final as against validating act of Legislature.-People v. Clark, 247. 57 (11.) Legislature cannot direct abatement of pending suit.-People v. Henry, 636. 60 (11.) When act invalid as delegating legislative power.-Milstead v. Boone, 679. be 60 (Mass.) State law incorporating act of Congress and regulations thereunder to made in the future would be invalid as delegating power to Congress.-In re Opinion of the Justices, 453. Constitution prohibiting state from passing law impairing contract obligations is a limitation upon police power of state.-City of Columbus v. Public Utilities Commission, 800. (B) Contracts of States and Municipal ities. 120 (Ohio) People bound by constitutional limitation as to contracts to same extent as individuals.-City of Columbus v. Public Utilities Commission. 800. 128 (Ohio) Legislature cannot directly nor through agency nullify franchise ordinance contracts.-City of Columbus v. Public Utilities Commission. 800. 134 (Ind.App.) Ordinance regulating movement of street cars held not to impair obligation of contract.-Union Traction Co. of Indiana v. City of Muncie, 160. 135 (N.Y.) Public Service Commissions Law. providing for increase of rates, applicable, though rates were fixed by franchises made before law took effect.-Public Service Commission, Second Dist., v. Pavilion Natural Gas Co., Legislative power vested in general court, and cannot be surrendered or delegated.-Id. 427. 60 (Ohio) Legislature may not do indirect-135 (Ohio) Public Utilities Act. in so far ly through agents what it cannot do directly as as it empowers Public Utilities Commission to principal. City of Columbus v. Public Utilities nullify city's contract fixing rates, is void.Commission, 800. City of Columbus v. Public Utilities Commission. 800. 63 (2) (N.Y.) Legislature may authorize city ordinance regulating assembling of persons on streets. People ex rel. Doyle v. Atwell, 364. (B) Judicial Powers and Functions. 67 (III.) Courts construe and apply the law. People v. Clark, 247. of 70(3) (III.) Legislative determination existence of evil and means of preventing it not interfered with.-Stewart v. Brady, 310. 70(3) (Ind.) Policy of school legislation exclusively for General Assembly.-Ehle State. 748. V. 70(3) (Ohio) Cannot review legislative discretion.-State v. Smith, 457, 480. IV. POLICE POWER IN GENERAL. 81 (II.) Privilege of engaging in lawful business subject to police power.-Stewart v. Brady, 310. V. PERSONAL CIVIL AND POLITICAL 87 (Ohio) Statute regulating hotel keeping held not unconstitutional as interfering with use of private property.-State v. Norval Hotel Co., 75. 143 (III.) Legislature cannot reduce tax rate to pay bonds where contract obligation will be impaired.-People v. Chicago & E. I. R. Co., 212. secure 206 (7) (Ohio) Provision of Public Utilities Act requiring telephone company to certificate of public convenience held not abridgment of privileges and immunities.-Celina & Mercer County Telephone Co. v. Union-Center Mut. Telephone Ass'n, 540. X. EQUAL PROTECTION OF LAWS. 240 (1) (Ohio) Provision of Public Utilities Act requiring telephone company to secure certificate of public convenience held not denial of equal protection of laws.-Celina & Mercer County Telephone Co. v. Union Center Mut. Telephone Ass'n, 540. 249 (III.) Act of June 17, 1893, providing for arrest in civil actions invalid as denying equal protection of laws.-Sturges & Burn Mfg. Co. v. l'astel, 762. XI. DUE PROCESS OF LAW. 270 (III.) Indeterminate sentence denial of due process of law.-People v. Krell, 251. not a 134 (Ind.App.) Contract against public policy cannot be ratified.-Jessup v. Hinchman, 853. II. CONSTRUCTION AND OPERATION. (A) General Rules of Construction. 284 (1) (N.Y.) Under due process provisions inheritance tax of other state could not be collected extraterritorially by suit against bene-143 (III.) Construed as a whole.-Chicago ficiaries in New York.-State of Colorado v. Home for Girls v. Carr, 344. Harbeck, 357. 284 (2) (III.) Statute as to increase of assessment by equalizing board on notice to 50 taxpayers does not deny due process of law. -People v. Orvis, 787. 296(1) (III.) Securities Law not unconstitutional as violating due process clause because exempting securities dealt in on stock exchanges.-Stewart v. Brady, 310. 301 (III.) Compensation Act provision for subrogation constitutional.-City of Taylorville v. Central Illinois Public Service Co., 720. 315 (11.) Act of June 17, 1893, providing for arrest in civil actions invalid as denying due process of law.-Sturges & Burn Mfg. Co. v. Pastel, 762. See Bills and Notes: Covenants; Exchange of Purchaser. I. REQUISITES AND VALIDITY, (A) Nature and Essentials in General. (Ohio) Requisites stated.-Local Telephone Co. v. Cranberry Mut. Telephone Co., 527. 143 (Ohio) Courts do not relieve parties from losses of improvident contract fairly negotiated.-City of Columbus v. Public Utilities Commission, 800. Not modified by courts to meet changed conditions.-Id. Party cannot obtain relief from some conditions of contract and claim benefits of other conditions.-Id. 152 (Ill.) Words used in one sense in one part of a contract are deemed to have been used in the same sense in another part of the contract.-Chicago Home for Girls v. Carr, 344. 154 (N.Y.) Arbitrarily placing one party at mercy of other construed reasonably and justly. -People ex rel. Wells & Newton Co. of New York v. Craig, 419. 155 (N.Y.) Construed against the party drawing it.-Strauss v. Ernstein. 440. 169 (111.) Written contract not to be varied by parol contract construed in light of surrounding circumstances.-Armstrong Paint & Varnish Works v. Continental Can Co., 711. 170(1) (II.) Practical construction of ambiguous contract given weight.-Armstrong Paint & Varnish Works v. Continental Can 0., 711. (D) Place and Time. 211 (Ind.App.) Time not of essence in equity unless made so by parties.-Burnett Coal Mining Co. v. Schrepferman, 34. III. MODIFICATION AND MERGER. 238 (2) (Ind.App.) Written contract which might have been made by parol may be mod 9(1) (N.Y.) Not to be ignored as meaning-ified by parol.-Anderson v. Miller, 29. less unless so indefinite that construction becomes futile.-Heyman Cohen & Sons v. M. Lurie Woolen Co., 370. 10(1) (III.) Mutuality of obligation unnecessary where there is other consideration.Armstrong Paint & Varnish Works v. Continental Can Co.. 711. VI. ACTIONS FOR BREACH. 346(10) (Mass.) Material variance between allegation of conditional promise to pay from money due third person and proof of absolute promise.-Pope & Cottle Co. v. Wheelwright, 106. CONVERSION. 10(4) (N.Y.) Buyer's option to purchase more than amount covered by sales contract held based on a consideration.-Heyman Cohen See Trover and Conversion. & Sons v. M. Lurie Woolen Co., 370. vendor 10(5) (Ind.App.) Agreement by that third persons might take over contract if vendee defaulted not enforceable for want of mutuality.-Hilker v. Curdes. 851. 10(6) (N.Y.) Under building loan agreement, construction company held to impliedly agree to acquire title and to borrow the money. -P. T. McDermott, Inc., v. Lawyers' Mortgage Co., 909. CORPORATIONS. See Banks and Banking; Carriers; Electric- 121(5) (N.Y.) Finding that agreement to deliver stock purchased was fulfilled warrantsub-ed.-Gilbert v. Rosen, 896. (B) Parties, Proposals, and Acceptance. 24 (III.) Acceptance of offer must be stantially as made.-Quinn v. Daly, 200. (D) Consideration. 65(3) (Mass.) Release of third party sufficient consideration for defendants' promise to pay third party's debt.-Pope & Cottle Co. v. Wheelwright, 106. (E) Validity of Assent. 95(3) (1.) To constitute duress, sufficient that exercise of free will prevented.-Doose v. Doose, 49. (F) Legality of Object and of Consideration. 108(1) (N.Y.) Public policy is what Legislature says it shall be.-Messersmith v. American Fidelity Co., 432. 121(6) (N.Y.) In suit for failure to deliver stock purchased, charge for defendant, predicated on plaintiff's knowledge that stock purchased by him from third person was stock defendant agreed to sell held, not error.-Gilbert v. Rosen, 896. V. MEMBERS AND STOCKHOLDERS. (A) Rights and Liabilities as to Corporation. 182 (N.Y.) Appraisers must take evidence to determine value of stock of dissenting minority stockholder on sale of corporate property. In re Bickerton, 41. Court retains jurisdiction to direct payment after appointment of appraisers of stock of one dissenting from sale of property.-Id. Appointment of appraisers of stock of one For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER dissenting from sale of property held not final, so that court may review their proceedings and confirm or reject their report. Id. 187 (II.) Agreement between controlling stockholders as to stock issued for advances, held enforceable in equity as between themselves. Smurr v. Kamen, 715. Part owner of corporate business held not to have surrendered right to enforce contract with his co-owner, but entitled to dividends on stock to which it related.—Id. (C) Suing or Defending on Behalf of Corporation. 206 (1) (1.) Stockholders entitled to defend action if directors willfully or fraudulently neglect duty.-Congregation Dorshe Tov Anshe Poland v. Congregation Bnai David Ohave Zedek, 48. (D) Liability for Corporate Debts and Acts. 249(1) (Mass.) In proceeding to collect unpaid subscriptions for benefit of creditors, stockholder cannot set off or recoup indebtedness.-Butterworth v. Smith, 100. VII. CORPORATE POWERS AND LIABILITIES. (A) Extent and Exercise of Powers in General. 3822 [New, Vol. 16 Key-No. Series] (Ohio) Duties of public utility corporation stated.-Celina & Mercer County Telephone Co. v. Union-Center Mut. Telephone Ass'n, 540. 3822 [New, vol. 16 Key-No. Series] (Ohio) Duties of public utilities stated. -City of Columbus v. Public Utilities Commission, 800. 3822 [New, vol. 16 Rey-No. Series] (Ohio) Public utility under ordinance fixing minimum charge cannot make additional readiness to serve charge.-Ashtabula Gas Co. v. Public Utilities Commission, 915. 391 (Ohio) The power to regulate public service company's rates is the exercise of police power. City of Columbus v. Public Utilities Commission, 800. Regulation of public service company's rates must be reasonable.-Id. (F) Civil Actions. III. PROPERTY, CONTRACTS, AND LIA BILITIES. (B) Contracts. 113(2) (Ind.App.) Contract beyond term of office of commissioners valid if in good faith.-Jessup v. Hinchman, 853. 113(5) (Ind.App.) Contract by commissioners for services of attorney beyond time void.-Jessup v. Hinchman, 853. when a change of membership will occur held IV. FISCAL MANAGEMENT, PUBlic debt, SECURITIES, AND TAXATION. ≈190(1) (III.) Power to levy tax strictly construed, and must be exercised within terms of statute.-People v. St. Louis, A. & T. H. R. Co.. 217. ~190(1) (III.) Can levy tax to maintain established sanitarium without vote.-People v. Illinois Cent. R. Co., 779. 190(2) (.) Tax for payment of road bonds cannot be extended in addition to statu tory limit.-People v. Ross, 17. Levy of tax additional to limit to pay bonds not authorized by curative act.-Id. 190(2) (III.) County boards limited to 50 cents levy on $100 valuation unless people authorize additional.-People v. Chicago & E. I. R. Co.. 284. 190 (2) (III.) County rate, including sanitarium tax, cannot exceed 50 cents without election.-People v. Illinois Cent. R. Co., 779. Levy for sanitarium exceeding statutory limit held void.-Id. Vote on erroneous submission held not to authorize levy exceeding 50 cents.-Id. 191 (111.) Levy for miscellaneous purposes must be inconsiderable.-People v. Louisville & N. R. Co., 340. Miscellaneous levy, one-fourth of total is illegal.-Id. 192 (III.) Tax for detention home authorized in year in which county adopts_act; "thereafter."-People v. St. Louis, A. & T. H. R. Co., 217. 192 (III.) Tax levy must state separately amount for roads and amount for bridges though included in system of state aid roads.People v. Chicago, B. & Q. R. Co., 764. In levying additional tax authorized by vote, purpose must be stated separately.-Id. COURTS. 519(3) (Ind.App.) Evidence held to show I. NATURE, EXTENT, AND EXERCISE of corporation principal and directors sureties.Bailey v. Pocket Oil & Gas Co., 505. XI. DISSOLUTION AND FORFEITURE OF FRANCHISE. JURISDICTION IN GENERAL. 23 (N.Y.) Jurisdiction not possessed by a court cannot be conferred on it by agreement. -Newham v. Chile Exploration Co., 120. 24 (III.) Jurisdiction of subject-matter not conferred by consent.-Town of Kingston v. Anderson, 347. 617(2) (Ind.) One succeeding to corporation's rights on dissolution may sue on its right of action on contract.-City of La Porte v. Ahl-37(1) (III.) Lack of jurisdiction of subborn, $74. COSTS. I. NATURE, GROUNDS, AND EXTENT OF RIGHT IN GENERAL. 25 (Ind.App.) In actions not arising out of contract, where recovery is less than $5, no more costs than damages recovered.-Snyder v. Stanley, 512. COUNTERCLAIM. See Set-Off and Counterclaim. COUNTIES. II. GOVERNMENT AND OFFICERS. (C) County Board. ject-matter is available as objection at any time. Town of Kingston v. Anderson, 347. 37(1) (N.Y.) Jurisdiction not possessed by a court cannot be conferred on it by waiver of objection.-Newham v. Chile Exploration Co., 120. 39 (N.Y.) Whether plaintiff was a bona fide resident, question for jury.-Woicianowicz v. Philadelphia & Reading Coal & Iron Co., 579. II. ESTABLISHMENT, ORGANIZATION, AND PROCEDURE IN GENERAL. (D) Rules of Decision, Adjudications, Opinions, and Records. on 92 (Ind.App.) Expression of opinion matter not before the court may be disregarded as dictum.-Board of Com'rs of Boone County v. Adler, 602. commis-102(1) (Ohio) Mandamus will not lie to require submission of emergency act to referendum where two judges of Supreme Court hold act is not subject to the referendum.State v. Smith, 457, 480. 47 (Ohio) Joint board of county sioners has only such powers as are conferred by statute.-Elder v. Smith, 791. 59 (Ohio) County commissioners' liability for damages statutory.-Weiher v. Phillips, 67. V. COURTS OF PROBATE JURISDICTION. | 202(3) (Mass.) Probate court has same power as to framing issues as that previously vested in the Supreme Judicial Court.--Fuller v. Sylvia, 384. 366(4) (III.) Statement of deceased, "He shot me twice," held not res gesta.-People v. Willy, 859. (C) Other Offenses, and Character of Ac cused. Issues framed in probate court cases only 369 (1) (II.) Indirect showing of other in cases involving probate of wills.-Id. pending charges against defendant, by crossexamining his witness, incompetent.-People v. Bush. 201. 202(5) (Mass.) Administrator's accounting held a "proceeding" separate from administra tion proceeding within statute as to appeals; "any proceeding."-Gonzales v. Gonzales, 85369(1) (1.) Evidence of other offense not admissible.-People v. Lane, 267. VI. COURTS OF APPELLATE JURIS DICTION. 369 (3) (III.) Confessions as to other crimes held inadmissible.-People v. Lane, 267. 369(8) (III.) Proof of previous lewd acts held admissible.-People v. Mason, 767. Proof of subsequent lewd acts held admissible.-Id. (A) Grounds of Jurisdiction in General. 208 (Mass.) Advisory opinion should not be requested as to validity of long and complicated bill.-In re Opinion of the Justices, 453.369(15) (N.Y.) Evidence that defendant sent similar threatening letters to others held competent to show identity.-People v. Ryan, 572. (B) Courts of Particular States. 219(7) (III.) Controversy relating to taxes collected not revenue case.-Road Dist. No. 6370 (III.) Evidence of similar transactions v. Kimbro, 227. admissible to prove guilty knowledge.-People v. Shaw, 208. 219(9) (II.) Appeal from probate to Supreme Court lies to test validity of Governor's 370 (II.) Evidence of other offense not removal of public administrator.-Ramsay v. admissible except to prove guilty knowledge. Van Meter, 193. -People v. Lane, 267. 219(36) (II.) Supreme Court is without jurisdiction to construe will giving proceeds of sale of land.-Wolford v. Young, 207. COVENANTS. II. CONSTRUCTION AND OPERATION. (C) Covenants as to Use of Real Property. 51(2) (III.) "Greenhouse" held "outhouse" within condition of deed.-Hultin v. Klein, 660. CRIMINAL LAW. See Burglary; Embezzlement; False Pretenses; Grand Jury; Homicide; Indictment and Information; Larceny; Perjury; Rape, 42-54; Robbery. 1. NATURE AND ELEMENTS OF CRIME AND DEFENSES IN GENERAL. 371(1) (III.) Evidence of other offense not admissible except to prove intent.-People v. Lane, 267. 371 (1) (N.Y.) Evidence that defendant sent similar threatening letters to others held competent to show intent.-People v. Ryan, 572. 371(3) (II.) Evidence of similar transactions admissible to prove criminal intent.— People v. Shaw, 208. 371 (12) (III.) Evidence of other offense not admissible except to prove motive.-People v. Lane, 267. 376 (III.) Evidence of accused's bad character, based on happenings 10 years before, held inadmissible.-People v. Willy, 859. 377 (III.) Rule as to character evidence stated.-People v. Willy, 859. 378 (1.) Character evidence introduced by 27 (III.) "Felony" defined.-People v. Con- accused subject to rebuttal by the prosecution. nors, 639. VII. FORMER JEOPARDY. 170 (Ind.) Conviction or acquittal of larceny no bar to subsequent prosecution for burglary not charged in indictment.-Cambron v. State, 498. 201 (Ind.) One may be prosecuted in state court after conviction in federal court.-Heier v. State, 200. -People v. Willy, 859. 379 (11.) Character evidence confined to general reputation at or prior to offense.People v. Willy, 859. Character provable only by evidence of general reputation.-Id. 390 (III.) Evidence why prosecution desirAccused not held for same offense for which ed presence of deceased's wife in courtroom inconvicted. Id. admissible.-People v. Willy, $59. VIII. PRELIMINARY COMPLAINT. AFFI- 395 (Ind.) Introduction in evidence of glasses, pitchers, and whisky seized without search warrant, but by permission of accused, held not erroneous.--Hess v. State, 880. say. 260(13) (Ind.) Reversible error for jury to (F) Admissions, Declarations, and Heartake affidavit to jury room.-Heier v. State, 200. X. EVIDENCE. (A) Judicial Notice, Presumptions, and Burden of Proof. 304 (1) (III.) Court cannot take judicial notice of character of individuals and their business.-People v. Davis, 320. 304 (20) (Ind.) Evidence liquor was white mule whisky is proof it was intoxicating.-Hogan v. State, 1. 317 (N.Y.) No adverse inferences from failure to call convicted accomplice.-People v. Slover, 633. (B) Facts in Issue and Relevant to sues, and Res Gestie. Is 338(1) (II.) Evidence of collateral facts not admissible.-People v. Lane, 267. 406 (4) (III.) Opening statements of counsel held binding as admissions.-People v. Hill Top Metals Mining Co.. 303. 419, 420 (I) (III.) Testimony objectionable as hearsay.-People v. Bush, 201. 419, 420 (1) (III.) Testimony of policeman that he called a hotel and had J. paged held incompetent as hearsay.-People v. Redola, 292. (I) Opinion Evidence. 453 (III.) Character provable only by evidence of general reputation and opinion evidence inadmissible.-People v. Willy, 859. 465 (III.) Opinion as to bad character held inadmissible.-People v. Willy, 859. (K) Confessions. 338 (6) (III.) Character evidence confined 516 (III.) "Confession" defined.-People v. to time not too remote.-People v. Willy, 859. Stapleton, 224. For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER (M) Weight and Sufficiency. 723 (3) (1) Argument that juries must 730(3) (Ind.) Error to refuse instruction 561 (2) (II.) Intent to convert fraudulent- 566 (III.) A jury is not compelled to be 571 (III.) Evidence crime was committed 572 (III.) A jury is not compelled to be (F) Province of Court and Jury in Gen- 768(1) (III.) Cautionary instruction held (G) Necessity, Requisites, and Sufficiency 775(4) (III.) No error in instructing as to 775 (6) (I.) Instruction on alibi held_not 778(8) (II.) Instruction on alibi held not 781 (2) (H.) Instruction characterizing 782(15) (Ill.) Instruction requiring con- 784 (1) (Ill.) Instruction on circumstantial on reasonable 789(4) (III.) Instruction 789(18) (I.) No error in refusing in- 805(1) (N.Y.) Court need not subdivide its 806(1) (III.) Repetition of instructions 806 (3) (III.) Giving of several instruc- 711 (III.) Restriction of argument for ac- 714 (Ind.) Improper for state's attorney 714 (N.Y.) Improper for district attorney 720 (2) (III.) Permitting counsel to read 810 (III.) Incorrect instructions with cor- 811(1) (III.) Cautionary instruction held 811(I) (Ind.) Instruction held not errone. 811(2) (III.) Instruction held erroneous 815(4) (N.Y.) Blackmail instruction held 721 (3) (III.) Request to cross-examine 815(9) (N.Y.) Instruction on reasonable 722(3) (1.) Remarks of prosecuting at 822(1) (III.) Enough that instructions as |