The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-09-18
THE RECORD OF. THE COURTS.
United States District Court.
hon. w. A. Woods, Judge.
To-day no special calls.
Supreme Court.


Supreme Court.
Yesterday the following decisions were rem
dered:
No I0949 State ex rel John s. Scobey vs..
John NJ. Stevens ct al Decatur c. c. Reversed.
Mitchell, O. 1.-The relatOr brought this suit on
the official bond of Stevens. who county clerk,
under Sec. 603l, r s., 1881, which provides that
ANY officer who shall charge, demand or take
any fee for any official act done or performed
under the provisions of this act other than as
herein allowed and provided for shall be deemed
guilty OF misdemeanor, and conviction
thereof shall be fined in any sum not exceeding
$ioo, and shall be liable, on his official bond, to
the party injured for five times the
illegal fees charged, demanded or taken.
and the same may be recovered
with costs in the Circuit Court" 1t is claimed
that the statute is unconstitutional since the
bill of rights provides that mo person shall be
put IN jeopardy twice for the same offense." 1t
is settled in this State that in all that class of
torts for which ir addition to the civil remedy
allowed to the injured party the wrong-doer was
amenable to a criminal punishment, exemplary
or punitive damages could not be recovered.
Exemplary CT punitive damages are allowed as
punishment or by way of example to deter others
from like ofenses. Compensatory damages in
clude not only such pecuniary loss or injury In
given case as is capable of approximately accur-
rate calculation, but in addition thereto such a
sum as may be supposed adequate to
compensate for injury to business, reputation,
etc. In Sc Ind. 284. it was distinctly ruled
that the Legislature was prohibited by
the Constitution from authorizing the infliction
OF exemplary damages for a wrong which was
also punishable a crime. The act here in
question is not obnoxious to the objection
claimed. The distinction between Fifteenth In
diana. 284, and this case is that in the first the
Legislature after afixing to the offense pre-
scrloed punishment undertook to authorize the
recovery OF exemplary damages which implies
nothing less than a second punishment by the
way ut unrestricted damages for the sake of
public example. In the present statute the Leg
islature has done nothing more than to fix bya
definite sum the amount which the injured party
shall be entitled TO recover on the official bond Of
the public officer. While the act of taking the
unlawful charges is made misdimeanor, pun
lshablo by fine, the Legislature, not by way of
additional punishment. but for the purpose of
defining the liability of the officer to the injured
party, has provided that he shall ue liable his
official bond in five times the amount of the fees
illegally charged. 1t such a case it can be truly
said that the punishment by criminal prosecu
ton is to redress public grievance. while the
civil remedy is for private redress There is
no element OF exemplary or punitive damages
In this act; the damages provided are compensa-
tory. and the section is not within the constitu-
tional inhibition. q
No. 1881. The Washington Ice Company ct
al. vs. Christian Low ct al. La Porte G. c.
Affirmed. collars, J.-Proceeding to have an
alleged highway ascertaned. described and
entered of record. Q) The appellants having
appeared before the board Of commissioners
without making objections there as to notice
they must be deemed to have waived them. e.
Objections to the qualifications of petitioners
should be made at the first opportunity before
the board, or they will be deemed waived. e.
A petition in such case should be signed by free
face of it. ~ While the names of
persons whose land the highway
passes must be given yet as the appellants made
voluntary appearance and We're the landowners,
no benefit could result by reversing the judg-
ment for the alleged defect. 90 The petition is
the complaint and need not be introduced IN
evidence. (6) The fact that the petitioners had
previously asked for the opening of highway
on the line of the one here sought to be entered
OF record, and the board adjudged that it would
not be of public utility, does not constitute bar
to the present proceeding. (7) There is no ques-
tion of public utility in such case this
No. 1883 Theophilus Carrico ct al. Adam
Tarwater. Sullivan C.. G.. Affirmed. HOwk j.
In suit for partition the defendants introduced
record of a former suit between the same par
ties In the same matter tried sixteen years be-
fore the pending suit. Its competency was
objected to on the ground that in the former suit
the affidavit for publication against non-resi-
dent defendants was defective. and therefore the
court had had no jurisdiction. Conceding, with
out deciding, that the affidavit was defective the
remedy OF party to the judgment in such
former suit is a complaint for review or an ap-
peal to this court brought within the time and
in the manner prescribed by law. (97 Ind, 146.l
Such judgment has remained unattached and in
force for sixteen years, and under the circum-
stances constitutes complete bar to the pend
ing proceedings.
No. 12l48 John W. Duncan ct al VS.. Absa-
lom G. Wallace Dearborn G.. c.. Affirmed
Elliott. J.-Where a testator provided in his will
that his realty and personally should go to his
wife, and after her death the realty to go to
two sons, and further provided that certain
sum of money should be paid two years after
the death of the widow, to another child, there
being no personality except what the widow
would take under the statute, and there being
no provision or circumstance indicating that it
was not the intention of the testator to charge
the land with the amount of the legacy. the
land becomes chargeabe therefor; and the fact
that the testator named date for the payment
of the money Indicates his intention that it
should be secured
No. 1908 N. Y. C. & St L. Railway Com
pany vs. Perry A. Randall Allen S. C. Re-
hearing denied
No. ll777 Benz. F. Hodges VS.. Mary M
Bales. Morgan G. G. Reheariug denied
Nc i2l43 Jacob Brechbill vs. Sumner K
Randall ct al. Noble c. G. Rehearing denied
To-day-The judges sit in consultation.