TLE TOWN

SHIP, &c.

V.

BLACK.

Nov. Term, voting a tax, takes away from the inhabitants, not only the 1854. control of their township school fund, but appropriates the GREENCAS whole fund itself. The voting is treated as the theoretical idea, the diversion of the township fund the practical illustration of local popular rights. The fund wisely donated as a permanent basis for local popular action and control in each congressional township, is blotted out. To seal the matter, so that the "murder may not out," it is even attempted to take away the private corporate powers of the inhabitants. And the Courts are upbraided in high places, for upholding the constitution and the public faith against such pernicious policy.

The great difficulty seems to arise from the restrictions in the constitution. It is said, for example, that city and county taxes come under the same restriction as local taxes for common schools. We have already alluded incidentally to this objection, in answer to the argument of counsel. In addition, we may observe, that we do not readily see how any fair inquirer could arrive at that result. It is quite certain we have not intimated anything of the kind. The constitution recognizes, in various ways, counties, county boards, cities, and other municipal corporations, as then existing institutions. Of this class is article 6; so, also, more or less directly, sections 6 and 22, article 4; section 3, article 7; sections 4, 5, 6, article 8; section 3, article 9; section 6, article 10; sections 13, 14, article 11; section 7, article 15. The 3d and 4th clauses of the sched ule expressly continue municipal corporations, until modified or repealed by the general assembly. But nowhere is it enjoined or implied, that the state shall defray the expenses of these corporations. She is bound, as before observed, to institute a system of common schools wherein tuition shall be without charge.

Yet if the provisions of the constitution were imperative on the state in regard to the expenses of municipal corporations, what could be done? If it were expressly declared, or necessarily implied, that all taxes for county and city purposes should be assessed and collected as state tax, it is not easy to see how the constitution could be super

seded either by the legislature or the Courts, even with the aid of the executive. It would still be the duty of all to obey, and of the Courts to uphold and adhere to its plain meaning.

If the restrictions imposed be found impracticable, it belongs solely to the people to modify or change them. It is not meet that the Courts should effect a change by construction and evasion. But these restrictions, being new, do not yet work smoothly. Besides, the wild latitude of former legislation being kept in view, perhaps the parties restrained are a little restive. However that may be, these restrictions were imposed deliberately, and for a purpose. They are the barriers erected by the people against the encroachment of the power they have delegated. The people will therefore be slow to remove them-leaving it to time to vindicate the wisdom and profound policy of the checks thus imposed. For these reasons the petition for a rehearing must be overruled.

GOOKINS, J., was absent.

Per Curiam.-The Petition for a rehearing is overruled.

Nov. Term, 1854.

GREENCAS

TLE TOWN-
SHIP, &c.

V.

BLACK.

VOL. V.-37

AN INDEX

TO THE PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

Petition by a wife for a divorce, on account of
cruel treatment, &c. Decrce in her favor,
and for 1,180 dollars for alimony. It was
shown at the trial that the husband owned
real and personal estate of the value of be-
tween 4,000 and 5,000 dollars, and there was
testimony from which the Court might rea-
sonably have concluded that the husband had
been guilty of grossly improper conduct, and
habitual abuse and cruelty. Held, that the
alimony was not, under the circumstances,
excessive.-Rudman v. Rudman,

AMENDMENT.

See CONTINUANCE, 1, 2.

63

highway might be changed by such board, on
the petition of twelve freeholders of the town-
ship in which the part of the highway pro-
posed to be changed was situate. A petition
was filed, the language of which showed that
it was founded on the latter section, but it
was materially defective in being signed by
but one person. Objection having been made
to the petition, the petitioner applied for
leave so to amend the petition as to bring it
within the provisions of the former section.
The practice act of 1852 was not then in
force. Held, that the amendment was not
allowable.-Spencer v. Graham,

158

2. Trespass quare clausum fregit. The decla-
ration was filed in the name of the state for
the use of the inhabitants of congressional
township No. 21, &c., and contained two
counts, in which the defendants were charg-
ed with having broken and entered into a
school-house belonging to district No. 7 in
said township, &c. After a demurrer had
been sustained to one count, and issues of
fact had been formed upon the other, the
plaintiff moved for leave to amend the dec-
laration by striking out the words "for the
use of the inhabitants," and inserting in
their stead the words "for the use of school
district number seven." The Court having
allowed the amendment, the plaintiff after-
wards asked leave to amend the writ so as
to make it conform to the declaration, but
the Court overruled the motion, and the suit
was dismissed, on the motion of the adverse
party, for the variance.

Held, that the amendment of the decla-
ration was properly allowed.

Held, also, that leave to amend the writ
ought to have been granted.-The State v.
Bryant,

192

3. An amendment, changing the nature of an
action from one ex contractu to one ex delicto,
was not allowed by the R. S. 1843.-Falk-
ner et al. v. Iams,

1. A section of the act of 1852 concerning
highways, provided that any person wishing
to enclose land through which any state or
county highway ran, might petition the board
of commissioners to turn the highway upon
his own land, at his own expense. Another 4. An information for retailing spirituous liq-

section provided that any state or county

200

uor omitted to state a price for which the

liquor was sold. The Supreme Court di-
rected the Court of Common Pleas to permit
the district attorney to amend by inserting a
price.—Miles v. The State,

215

4. Proof that a person of the same name of the
defendant, was served with the subpœna, is
sufficient evidence, prima facie, of a service
on the defendant.-Ibid.

6.

An appeal, in this state, stands in the place
of a writ of error.-Montgomery v. Jones, 526
An appeal will not lie after a voluntary non-
suit.-Ibid.

5. An answer without oath contained a mate- 5.
rial admission against the defendant. After
depositions had been taken, the defendant,
who seemed not before to have known the
extent of his admission, filed his affidavit
and the affidavits of his solicitors, to the
effect that as the answer was not under oath, A cause was continued to the next regular
it had been loosely prepared, and signed by
the defendant without reading, and that the

admission was a mistake of his solicitors and
contrary to the fact; whereupon he asked
leave of the Court to amend his answer so
as to deny the thing so admitted, which the
Court granted. Held, that the leave to
amend was correctly given.-Taylor v. Dodd,
246

6. Suit by B. against the Wayne County Turn-
pike Company, for damages for an injury sus
tained by him by a fall through the sidewalk
of a bridge within the corporation of Cam-
bridge City, alleged to belong to said com-
pany, and which was out of repair. The
Court allowed the plaintiff to amend his
complaint on the trial, by inserting the aver-
ment that he was ignorant that the bridge
was out of repair. The record showed no
abuse of discretion by the Court; and no

motion for a continuance or for the taxation
of costs was made. Held, that there was no
error.-The Wayne County Turnpike Co. v.
Berry,

ANSWER.

286

APPEARANCE.

term of the Circuit Court. At an interven-
ing special term the cause was tried-the de-
fendant appearing at the trial. Held, that,
by his appearance, the irregularity was waiv
ed.-Murphy v. Barlow,

APPRAISEMENT LAWS.

230

An agreement executed in 1848, which consti-
tuted the basis of part of a decree, contained
no waiver of valuation or appraisement laws,
and it appeared by the record that part, at
least, of the basis of the decree was within
the operation of those laws. The decree
directed the sheriff to sell without relief from
such laws. Held, that it was erroneous.-
Morton v. White,

1.

2.

APPRENTICE.

338