of about 11⁄2 miles to the shore of Lake | or highways lying within the boundaries of Michigan, and it has ever since been used by their corporations, and, as it appears that the public. About 15 years ago it was grad- the town was only attempting to vacate such ed and paved with macadam. In 1904 ap- portion of the Clark road as lies within the pellee purchased a two-acre tract of land, boundaries of Gary, the decision of the mubounded on the north by Lake Michigan and nicipality is not subject to judicial review. on the east by the Clark road. The tract The precise question presented has never has a frontage on the lake of about 473 feet been considered in this jurisdiction, nor, so and on the road of about 463 feet, the cen- far as we are advised, in any other. There ter of the road being his east line. It is is no suggestion that the action of the town alleged that the land is of great value. Ap- board was concurrent with similar action pellee resides on this tract, and operates a by the board of county commissioners. Aphotel there. He has three children who at- pellant relies wholly on its right to vacate tend school at Clark. Appellee's post office any highway or portion thereof within its and voting place are at the same place. The boundaries on the exclusive authority grantonly means of egress and ingress from and ed it by statute. Both the laws relating to to his home is over the Clark road, and, if cities and towns and those relating to highthis is closed, it is alleged that the land will ways outside thereof were revised in 1905. be rendered valueless. After the town of There were some amendments adopted in Gary was incorporated, it annexed the ter- 1907, but they have no application here. ritory lying between the town of Clark and It cannot be questioned that the exclusive the lake, excepting appellant's two-acre tract, jurisdiction to vacate highways lying wholly the annexed tract including the territory outside incorporated cities and towns is vestwest, south, and east of appellee's land, and ed in the board of county commissioners. including all the territory through which the Burns' Stat. 1908, § 7650. Neither can it be Clark road ran from the village to the lake, doubted that when this action was comexcepting the west half of the highway ad- menced, except in certain instances not necjoining appellee's land on the east side there- essary to consider here, the exclusive power of. In 1908, after the above annexation, the to vacate existing highways, located wholly town of Gary, by its board of trustees, adopt- within a town or city, was vested in such ed a declaratory resolution vacating all corporation, Burns' Stat. 1908, §§ 8696, 8697, that portion of the Clark road from the 8700, 8960, 8961, 9005; Gascho v. Sohl, 155 lake to Clark, except the west half thereof Ind. 417. But, where the center of an exadjoining appellee's tract on the east side isting highway is the boundary line of a thereof. Appellee filed his complaint against town, may it, pursuant to the authority vestthe town of Gary, alleging the above recited ed in it by statute, vacate the portion of the facts, and other matters, and in which he highway lying within the city? The case prayed for a decree enjoining the vacation of Chicago, etc., R. Co. v. Sutton, 130 Ind. of the road. It was also alleged that, unless 405, 30 N. E. 291, was decided in 1892. At enjoined, the town would vacate the road that time there was no specific statute repursuant to the terms of the resolution garding the location of a new highway on adopted; that the sole purpose of the pro- the boundary line of a city or town. In the posed vacation was to devote the vacated course of the opinion it was said: "We can, road to the sole and private use of certain however, see no good reason why a board of named corporations; that the town has no county commissioners may not act, in conright or authority to vacate the highway, junction with the city authorities, in estaband has no right to vacate it for the private lishing a highway along the line of such use of the corporations named. While the municipal corporation." In 1895 (Acts 1895, action was pending, the town of Gary be- p. 14) the board of commissioners was given came a city, and the city was substituted as jurisdiction to locate highways on the boundparty defendant. A demurrer to the com- ary lines of towns or cities if such boundary plaint for insufficient facts was overruled. | lines were section lines. By the amendment This action is here assigned as error. There of 1899 (Acts 1899, p. 116) the board was auwas a trial, finding and judgment for appellee. Appellant filed its motion for a new trial on the ground that the decision was contrary to law, and not supported by sufficient evidence. The overruling of this motion is also assigned as error. Inasmuch as the material allegations of the complaint are supported by some evidence, the errors assigned on the action of the court in relation to the demurrer and motion for a new trial will be considered together.

[1] It is contended by counsel for appellant that municipal corporations have exclusive jurisdiction in the vacation of streets

thorized to locate highways on boundary lines of cities or towns, regardless of section lines. Gascho v. Sohl, 155 Ind. 419, 58 N. E. 547. In section 2 of the highway act of 1905 (Acts 1905, p. 521, Burns' Stat. 1908, § 7650) the duties of the viewers with reference to highways proposed to be located, changed, or vacated are set out at length. In this section is found the following proviso: "That, whenever the location of a highway is petitioned for upon and along any line which forms also the boundary of any city or town, the board of commissioners shall for the purpose of locating such high

way have jurisdiction over the lands and lots | ment is, in part, erroneous, the remedy is by lying within such corporate limits, and im- motion to so modify it as to eliminate the mediately affected by such proceedings and error. Migatz v. Stieglitz, 166 Ind. 361, 77 location; and the owners of such lands and N. E. 400, and cases cited. lots so affected shall have the same rights and remedies in the matter of the location, vacation, or change of such highway as the owners of the lands lying on the opposite side thereof, and outside of such city or town." (Italics ours.)

Considering the fact that there is a difference in procedure and remedies between proceedings before boards of commissioners for vacating highways, and proceedings before town and city authorities, for the same purpose, and considering the other provisions of the highway act, there is not wanting reason for the assertion that section 7650, supra, by implication, confers on the county board jurisdiction to order the vacation as well as the location of roads on city boundary lines, but in view of the conclusion we have reached it is unnecessary to determine this question.

[4] Appellant claims that, because appellee's property is without the city limits, he is a stranger to the municipality, and cannot be heard to complain, and to support the claim cites the case of House v. City of Greensburg, 93 Ind. 533. In the above case House owned land outside the city which abutted on the terminus of a street which was vacated. It was held that, under a statute authorizing "any property owner immediately upon the line" of a street proposed to be vacated might object thereto, House was a stranger to the municipality, and had no interest in the street within the meaning of the city charter. We do not consider the decision in the House Case applicable here. Appellee in his complaint shows a special interest in the Clark road as an appurtenance to his property. The closing of the road would deprive him entirely of access to his [2] The Legislature has power to vacate a home except over the waters of Lake Michihighway and such power may be delegated gan. The complaint avers a special and to municipal authorities, but it must be con- peculiar damage not sustained by the genferred in express terms. Elliott, Roads & eral public and such as to entitle him to inStreets, § 1177. The statutes in question do junctive relief. Strunk v. Pritchett, 27 Ind. not in express terms confer on cities or App. 582, 61 N. E. 973; Pittsburgh, etc., R. towns the right to vacate half of a highway Co. v. Noftsger, 148 Ind. 101, 47 N. E. 332, whose center forms the boundary line. It is and cases cited. Appellee contends that it scarcely conceivable that any legislative body was shown by the evidence that the proposed should entertain the intention of conferring vacation was for the purpose of permitting on a town the right to destroy one side of an a private use of the highway, when vacated. established and paved highway, and require On the other hand, appellant claims that the county authorities to maintain the use- the purpose of the board of trustees in orless remainder. A highway must of neces- dering the vacation is not a proper subject sity as to its breadth be considered as a of judicial inquiry. A great many authorwhole. The conflict of jurisdiction contem-ities are cited by counsel in support of their Because the judgplated by appellant's theory would be intol- respective contentions. erable. The town of Gary was without ju- ment of the trial court must be affirmed for risdiction to order the vacation of the half reasons heretofore stated, it is not necessary of the highway opposite appellee's land. to determine this question, and therefore it Whether it might, with the concurrence of is not considered here. the board of commissioners, vacate the highway, in its entire breadth, at such location, is a question not necessary to decide, because such a situation is not presented. King v. Milverton, 5 Ad. & El. 840; Douglas County v. Taylor, 50 Neb. 535, 70 N. W. 27; Rothwell v. California Borough, 21 Pa. Super. Ct. 234; State v. Oxford, 65 Me. 210; Bigelow v. Brooks, 119 Mich. 208, 77 N. W. 810; 37 Cyc. 176. Appellant by the terms of the decree was enjoined from vacating the road or any part thereof between Clark and the lake.

There is no reversible error in the record. Judgment affirmed.

(179 Ind. 300)

MORGAN v. STATE. (No. 22,278.) (Supreme Court of Indiana. March 4, 1913.) 1. CONSTITUTIONAL LAW (§ 48*)-CONSTRUC TION-VALIDITY OF STATUTE.

Legislature, wherever possible, without doing The courts should uphold the acts of the violence to the Constitution, and every reasonable presumption is in favor of the validity of the act.

[Ed. Note.-For other cases, see Constitu

[3] It is contended that, inasmuch as all tional Law, Cent. Dig. § 46; Dec. Dig. § 48.*]

the road south of appellee's land was within the boundaries of the town, the latter's jurisdiction over such part was exclusive and the relief granted by the decree of the trial court was to that extent excessive and unwarranted. There was no motion in the lower court to modify the judgment. If a judg

2. STATUTES (§ 118*)-SUBJECT AND TITLE OF ACT-CONSTITUTIONAL PROVISIONS.

Laws 1909, c. 87, entitled "An act authorizing and providing for the establishment of a hospital for insane criminals as a part of the Indiana state prison, * * * defining the manner of holding insanity inquests in cases of convicts alleged to be insane, and for their

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ter 87 of the Acts of 1909, is unconstitutional and void, both under the Constitution of the 5. CRIMINAL LAW (§ 893*) — VERDICT - CONUnited States and this state. Third, that Under Burns' Ann. St. 1908, § 2071, pro-defendant cannot be held under section 2071, viding that, when a person is acquitted on the sole ground that he was insane, the facts shall be found by the jury, or by the court, a verdict finding defendant not guilty, that he did kill deceased at the time and place charged in the indictment, and that he was insane at the time is a finding that he was not guilty because he was insane, and for that reason only.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. time of the commitment of such act"-and 1023.*] on said finding entered judgment that de

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

fendant (appellant) be committed to and con- sanity is interposed whether upon a special fined in the Indiana Hospital for Insane plea or a general plea of not guilty, the court Criminals, so long as his insanity shall con- or jury trying said cause shall make a findtinue. To this judgment the appellant ex-ing both as to the sanity of said defendant cepted, and appeals to this court.

The assignment of errors presents the question whether, after the return of a verdict of not guilty, the court has any authority to summarily commit the defendant to the Indiana Hospital for Insane Criminals, as provided under section 161⁄2 of the act of the General Assembly, approved March 5, 1909, or whether defendant is entitled to his discharge, unless proceedings are had under section 2071, Burns 1908, in relation to persons acquitted of crime under a plea of insanity.

at the time so claimed and as to whether he committed the act as charged. And if it shall be found in favor of said defendant on such plea of insanity, but against him as to the commission of the act as charged, he shall, upon order of the court be committed to and confined in the Indiana colony for the insane criminals in like manner and on such conditions and for such terms as is now provided for by law for the confinement of insane criminals in a state hospital for the insane." It will be observed that the title of the act refers to "insane convicts," their care, In support of his contention, the appellant manner of holding inquests, in cases of coninsists that section 161⁄2 of the act of March victs alleged to be insane, for their transfer 5, 1909 (Acts 1909, p. 207), is unconstitutional and discharge, but nowhere refers to proceand void, being in contravention of section dure in criminal trials, or in what manner 19, art. 4, of the Constitution of the state of patients, other than convicts, may be admitIndiana, in that the subject-matter of section ted to such institutions. 161⁄2 is not within the title of the act; that said section 161⁄2 is void as being in conflict with the provision of the fourteenth amendment to the Constitution of the United States in that he is now confined without due process of law; that said section 16% is void for the reason that it is in further conflict with the fourteenth amendment to the Constitution of the United States in that it denies to this defendant the equal protection of the law, in that said section includes only male and does not include female defendants; and that a verdict of acquittal entitles the defendant to his discharge.

Section 19 of article 4 of the Constitution of Indiana reads as follows, being section 115, Burns 1908: "Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."

We are inclined to conclude that, as the subject of section 161⁄2 is not included in the title of the act, the same is in conflict with section 18, art. 4, of the Constitution, and [1] It is the duty of the courts to uphold is therefore void. State ex rel. v. Board, the acts of the Legislature, if it can possibly 166 Ind. 163-198, 76 N. E. 986; Henderson, be done, without doing violence to the Con- Auditor, v. London, etc., Co., 135 Ind. 23, stitution; and, in doing so, every reasonable | 34 N. E. 565, 20 L. R. A. 827, 41 Am. St. Rep. presumption must be indulged in favor of 410; Wabash Ry. Co. v. Young, 162 Ind. 102, the legality of the act. State v. Roby, 142 69 N. E. 1003, 4 L. R. A. (N. S.) 1091; Ex Ind. 168-184, 41 N. E. 145, 33 L. R. A. 213, parte Knight, 52 Fla. 144, 41 South. 786, 120 51 Am. St. Rep. 174, and cases cited; State Am. St. Rep. 191. v. L. & N. R. R. Co., 96 N. E. 340-342, and cases cited; State v. Barrett, 172 Ind. 169, 87 N. E. 7, and cases cited; Barrett v. State, 175 Ind. 112, 93 N. E. 543; Hirth-Krause Co. v. Cohen, 97 N. E. 1; Booth v. State (No. 22,224) 100 N. E. 563, decided at this term of court.

[3] We are of the opinion that the most serious objection to section 16% of the act in question is the one presented by appellant, that said section is in violation of the last clause of the fourteenth amendment to the Constitution of the United States, wherein it provides: "Nor shall any state deny to any person within its jurisdiction the equal protection of the law." Section 161⁄2 provides upon the trial of any male persons, etc., and does not include females.

[2] The title of the act in question being chapter 87, p. 207, of the Session Laws of 1909, reads as follows: "An act authorizing and providing for the establishment of a hospital for insane criminals as a part of the In the case of Duncan v. Missouri, 152 Indiana state prison, making appropriations U. S. 377, page 382, 14 Sup. Ct. 570, page therefor, providing for its government and maintenance, defining the manner of holding insanity inquests in cases of convicts alleged to be insane and for their transfer and discharge, repealing all laws in conflict and declaring an emergency." Section 16% of said acts reads as follows: "After the passage of this act, if upon the trial of any male person accused of a felony the offense of in

572 (38 L. Ed. 485), the court, speaking by Chief Justice Fuller, uses the following language: "Equal protection of the laws are secured if the laws operate on all alike and do not subject the individual to an arbitrary exercise of the powers of government."

The case of Gulf, Colorado & Santa Fé Ry. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, it being a case arising un

* * *

der a law of the state of Texas, wherein it [4, 5] It is contended further by appellant provided that any person having a claim that he was entitled to his discharge on acagainst any railway company shall be entitled count of the form of the verdict, and that to recover attorney's fees, etc. The courts, he could not be held under section 2071, speaking by Justice Brewer, used the fol- Burns 1908, or proceeded against or held lowing language: "But it is said that it is under this statute, for the reason that not within the scope of the fourteenth this section is also void as being in conamendment to withhold from states the pow-flict with the provisions of the fourteenth er of classification, and that, if the law deals amendment to the Constitution of the Unitalike with all of a certain class, it is not ed States in that it deprives the appelobnoxious to the charge of a denial of equal lant of his liberty without due process of protection. While, as a general proposition, law. We do not think this section is subthis is undeniably true, yet it is ject to the infirmities suggested by counsel, equally true that such classification cannot as it provides the procedure to be followed, be made arbitrarily. The state may not say and directs that: "The proceeding shall conthat all white men shall be subjected to the form to those prescribed for the admission of payment of attorney's fees of parties success- the insane; but no preliminary statement in fully suing them and all black men not. It writing shall be required." We think this may not say that all men beyond a certain section of the statute provides for due proage shall be alone subjected, or men possess-cess of law, as contemplated by the Constitued of a certain wealth. These are classifica- tion. tions which do not furnish any proper basis Section 2071, Burns 1908, reads as folfor the attempted classification. That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which classification is proposed, and can never be made arbitrarily and without any such basis."

lows: "When a person tried upon an indictment or affidavit for a public offense is acquitted on the sole ground that he was insane at the time of the commission of the offense, the fact shall be found by the jury in the verdict, or by the court, if tried by it, and the defendant shall not be discharged, but shall be forthwith proceeded against upon the charge of insanity; and the verdict of the jury or finding of the court shall be prima facie evidence of his insanity. The proceedings shall conform to those prescribed for the admission of the insane; but no preliminary statement in writing shall be required."

In the case of Atchison, Topeka, etc., R. R. Co. v. Matthews, 174 U. S. 96, on page 104, 19 Sup. Ct. 609, on page 612 (43 L. Ed. 909), the court, speaking by Justice Brewer, says: "It is also a maxim of constitutional law that a Legislature is presumed to have acted within constitutional limits, upon full knowledge of the facts, and with the purpose of promoting the interest of the people as a whole; and courts will not lightly hold that The verdict returned in this cause finds an act duly passed by the Legislature was the defendant not guilty, but does find that one in the enactment of which it has tran- he killed Bert Hardy at the time and place scended its power. On the other hand, it is charged in the indictment, and finds that the also true that the equal protection guaran- defendant was insane at the time he committeed by the Constitution forbids the Legislated the act. This is sufficient to warrant us ture to select a person, natural or artificial, in concluding that the jury found him not and impose upon him or it burdens and lia-guilty because he was insane, and for that bilities which are not cast upon others similarly situated."

In the case of Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, a case involving the legality of an ordinance of San Francisco, designed to prevent the Chinese from carrying on the laundry business, the court, in holding the ordinance obnoxious to the provisions of the fourteenth amendment, uses this language: "This court looked beyond the mere letter of the ordinance to the condition of things as they existed in San Francisco, and saw that under the guise of regulation an arbitrary classification was intended and accomplished."

reason only. We are of the opinion that section 2071 is constitutional and not obnoxious to the fourteenth amendment to the Constitution of the United States.

It is to be understood by this opinion, and we do hold, that in a proper case a defendant acquitted of a criminal charge, on the ground of insanity, may be detained temporarily until proceedings may be instituted under section 2071 authorizing an investigation into the insanity of the defendant, and that a defendant having been acquitted of a criminal charge might be, by proper and lawful proceedings, confined in an insane hospital for treatment, or confined under the statutes We are constrained to hold that, under the providing for the detention of insane persons authorities above cited, section 161⁄2 of chap-dangerous to run at large. ter 87 of the General Assembly, approved March 5, 1909, is void as denying to the appellants the equal protection of the law and obnoxious to the fourteenth amendment to the Constitution of the United States.

[6] It is contended by counsel for appellee that the order of the court, committing the appellant to the Indiana Hospital for Insane Criminals, is not a final judgment from which an appeal will lie. In this we think him in