tablishing the same; that the said ditch has been cut and constructed from three to ten feet wider at the top, through the whole course thereof, than said plans and specifications, order and judgment of the court, provide for; that the banks thereof are cut perpendicularly to a depth of from three to seven feet, without giving or providing for any slope thereto whatever, and the residue of said banks, to the full depth of said ditch, has been scooped, and is being scooped, by the use of said macine, so as that the same, to wit, said banks, are concave and irregular, and the bottom of said ditch, through the whole course thereof, has been constructed, and is being constructed, from two to ten feet wider than is provided for by said plans and specifications and order and judgment of the court establishing the same; that the whole of said ditch now constructed by said contractor, Paul, and the said commissioner, has been constructed by the use of said machine in manuer and form as above stated. The defendant avers that said ditch so constructed has been entirely obliterated and destroyed, the lines, courses, metes and bounds, plans and specifications, adopted by said court, and ordered and adjudged as the lines, courses, metes and bounds, plans and specifications, for the construction of said ditch, so that the same cannot now be, nor can it hereafter be, made to conform with the plans and specifications adopted for the construction of said ditch; that the said contractor and the said relator, commissioner, have in the construction of said work destroyed said ditch, and made it absolutely impossible ever to be constructed in manner and form as ordered and adjudged by the court; that on account of the great depth to which said ditch has been cut and constructed by the said contractor and the said relator, and the banks thereof having been cut perpendicularly and in a concave manner, and the water having been retained therein for the floating of said machine, the said banks have broken, caved, and crumbled so that in many places the said ditch is now 40 to 50 feet in width, where the same should have been, by the plans and specifications therefor, 12 to 15 feet in width; that said ditch, instead of being an improvement and benefit to the land through which it passes, has been made so that the same is an irreparable damage thereto; that the said relator, commissioner, and the said contractor are proceeding to the completion of said work by the use of said machine in manner and form as above stated; that by the use of said machine it is physically impossible to cut or construct said ditch, in whole or in part, in conformity with the said plans and specifications, order and judgment of said court, for the same; that the sides are perpendicular and concave, and the bottom is concave and irregular, and in every particular said ditch at the top and bottom and sides is from three to ten feet wider than provided for by said plans and specifications, by reason whereof the same can never be made to conform to said plans and specifications; that said work under

and by virtue of said contract is not to be paid for until the same has been completed according to the plans and specifications as aforesaid, and in conformity with the order and judgment of the court establishing said ditch. The defendant further avers that by the acts and doings of said relator in the construction of said ditch, the said plans and specifications, lines and courses, metes and bounds, of said ditch have been destroyed, and the completion of said work made impossible; that the collection of said assessments is not necessary now or at any time; that it is not necessary that the said relator, commissioner, should collect said assessments, or any of them, now or at any time, as the same will not be needed under and by virtue of said contract in the construction of said ditch, because the said ditch has been destroyed, and the acceptance of said work and ditch by the court made impossible; that, in any event, the said assessments, and the money arising therefrom, will not be needed until said ditch has been completed according to the plans and specifications aforesaid; and the defendant avers that said ditch will not be completed according to said plans and specifications, and will not be acceptable to said court, within the next three years, and will not be so completed and accepted at any time."

It is very difficult to determine upon what definite theory the answer proceeds, or to give it a construction that will make its allegations harmonious and consistent. It will conduce to clearness to state at the outset some general rules by which we must be governed, and, after this is done, consider the allegations of the answer somewhat in detail, and apply to them the general principles which rule the case. The second paragraph of the answer must be regarded as in confession and avoidance. If it be regarded as in denial, then, as the general denial was pleaded in the first paragraph, we should be compelled to hold that there was no prejudicial error in sustaining the demurrer, even if the answer was good, inasmuch as it is well settled that there is no available error in sustaining a demurrer to a paragraph of an answer in a case where the same evidence is admissible under other paragraphs of the answer, which are allowed to stand. A single paragraph of an answer cannot perform a double office; that is, it cannot be good as a denial and also as a plea in confession and avoidance. Cronk v. Cole, 10 Ind. 485; Kimble v. Christie, 55 Ind. 140; Woollen v. Whitacre, 73 Ind. 198; Richardson v. Snider, 72 Ind. 425; State v. Foulkes, 94 Ind. 493, 498; Petty v. Trustees, 95 Ind. 278; Nysewander v. Lowman, 124 Ind. 584-590, 24 N. E. Rep. 355.

The answer before us, if good at all, must be good as a plea in confession and avoidance, and this it cannot be unless it overcomes by affirmative allegations the prima facie case which it confesses and seeks to avoid. The affirmative allegations are the controlling ones, and those which are equivalent to the denials embraced in the answer of general denial are without influence. A pleading is to be

judged from its general scope and tenor, and not from fragmentary statements or general conclusions cast into it. Neidefer v. Chastain, 71 Ind. 363; Lawrence v. Beecher, 116 Ind. 312, 19 N. E. Rep. 143. The specific allegations are the influential ones to which general statements yield. Reynolds v. Copeland, 71 Ind. 422; Keepfer v. Force, 86 Ind. 81; Spencer v. McGonagle, 107 Ind. 410, 8 N. E. Rep. 266; McPheeters v. Wright, 110 Ind. 519, 10 N. E. Rep. 634; City of Logansport v. McConnell, 121 Ind. 416, 417, 23 N. E. Rep. 264.

This established and salutary rule of pleading requires us to regard as of no effect some of the general statements of the auswer, for the reason that they are in conflict with the specific averments. The general statement as to the possibilities of the future yield to the specific statements, and these show that it is possible to compel the contractor to construct the ditch as the contract requires. A verments contradicting matters of which judicial knowledge is taken are generally unavailing. Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. Rep. 80; Jamieson v. Oil Co., 128 Ind. 555-574, 28 N. E. Rep. 76.

As to the extent of this rule, or the limitations upon it, we need not inquire, since it is enough for our present purpose to give it a very restricted application. This is so because it is sufficient to employ it for the purpose of denying influence to the conclusion of the pleader that, because stakes and lines are obliterated, the ditch cannot be completed according to the contract, for it is matter of common knowledge that lines once established and once designated by marks can be re-established. The general conclusion is really no more than the unsupported opinion or belief of the pleader, for the specific facts pleaded do not give it support, and it is evident that it cannot be supported. It is well settled that a pleading must proceed upon some definite theory. It is clear that an intelligent issue could never be formed if there were no such rule, and hence the courts have adhered to the rule with strictness. Mescall v. Tully, 91 Ind. 96, and cases cited; Toledo, etc., R. Co. v. Levy, 127 Ind. 168, 171, 26 N. E. Rep. 773, and cases cited. We must therefore ascertain, if we can, upon what theory this answer proceeds, and determine whether it is good upon the theory on which it professes to proceed. It is exceedingly difficult to determine upon what theory the answer proceeds. Some of the allegations seem to indicate that it proceeds upon the theory that there is no authority to collect the assessment. Among the allegations, we find this: "That said commissioner now has in hands a large sum of money, to wit, more than one hundred dollars, after paying and adjusting all costs and expenses incident to the establishment of said ditch, which amount of money is more than will be needed by said commis. sioner, or necessary in the further prosecution of said work, until the cost of construction, as provided for in said contract with the said Henry C. Paul, shall become due and payable." This allegation, and those connected with it, seem to indicate that the theory is that there is no author

ity to collect money to pay for the ditch until it is constructed. These allegations concede that money will be due at some time, and are inconsistent with the allegations which go upon the professed theory that the ditch can never be completed. They are also inconsistent with the aliegations indicating that the defense relied on is that the work has not been done according to contract, and will not be done as the contract provides. The principal allegations of the answer seem to require the conclusion that the theory of the pleading is that the work has not been done, and will not be done according to contract. But yielding the pleader the benefit of all doubt, and conceding, but by no means deciding, that it is proper to embody in a single paragraph of answer several distinct and inconsistent theories, we will examine and decide all the material questions that counsel have argued or presented. If the answer is to be considered as proceeding upon the theory that the cominissioner had no authority to enforce the assessment because the work was not completed, it is clearly bad. The discussion of this point necessarily covers a wide range, inasmuch as it leads us to examine generally the provisions of the statute, to consider the duties and authority of the drainage commissioner, and the rights and liabilities of the landowners. The statute invests the drainage commissioner with comprehensive powers. Elliott's Supp. § 1178. Among those principal powers is the power to levy and enforce assessments from time to time as the work progresses. Under the elementary rule that the grant of a principal power carries with it subsidiary powers, such subordinate incidental powers were acquired by the commissioner as were necessary to effectuate the principal power granted. There can therefore be no doubt that the commissioner has a reasonable and limited discretion as to when assessments shall be levied and enforced. public officer whose duty it is to conduct or supervise a public work is presumed to rightfully discharge his duty, and what he does within the scope of his authority is regarded as prima facie right and in accordance with the law. Linville v. State, 29 N. E. Rep. 1129, (this term;) McCoy v. Able, (Ind. Sup.) 30 N. E. Rep. 529. See, also, authorities cited in Elliott, Roads & S. pp. 430-438, notes.

Α

In the absence of a showing to the contrary, it must be presumed that the drainage commissioner did his duty in making the assessment he is here seeking to enforce; for the law, as we have seen, authorizes him to make assessments as the work progresses. It, indeed, goes further, for it provides that expenses of the court and the like may be included in the assessment; for this is the clear implication of the language employed by the framers of the statute, for it declares that the commissioner "shall pay costs not otherwise adjudged, and expenses incident to establishing the same, and incurred in the preparation of reports, and any expense which the petitioner may have incurred in the preparation or presentation of his petition, and such other expenses as the

court shall deem a proper charge upon the funds in the hands of the commissioners, and the damages assessed and the cost of construction. Elliott's Supp. § 1178. The express words of the statute make it quite clear that an assessment may be made out and enforced to pay other expenses than those directly incurred in constructing the ditch. As the commissioner can have no other funds except such as are derived from assessments, it must, of necessity, follow that, when it becomes necessary and proper under the law to secure funds, he may make an assessment. Where the contrary does not appear, the courts must assume that there was a valid reason and proper cause for making the assessment. It follows from what we have said that there was authority to levy the assessment, although the ditch was not fully constructed; and it follows, also, that the answer is bad unless it fully meets the complaint, and states facts that make it appear that the drainage commissioner either exceeded his authority or was guilty of a breach of duty. The statute does not so restrict the authority to levy assessments as to inhibit its exercise until the money is required to pay for work that has been done. We think that the statute, considered, as it must be, as an entirety, authorizes the commissioners to exercise a reasonable discretion in levying assessments to secure unadvanced money to pay for work in progress but not completed. Provision is made for the execution of a bond by the contractor, and various other provisions are found in the statute indicative of an intention to authorize the commissioners to secure money to pay for the work as it is done. The entire proceeding is, it is important to remember in this connection, as well as in another of which we shall presently speak, conducted under the control of a court of superior general jurisdiction, so that the landowners can at any time apply to the court to restrict or direct its agent. The contract does not preclude the commissioners from levying or collecting assessments. Counsel refer us to the provision of the contract which reads thus: "No part of said work shall be accepted from said Henry C Paul as completed until all of such ditch down stream therefrom shall have been completed ac cording to said specifications;" and, as we understand them, argue that this pre. cludes the levying of an assessment. We regard the position of counsel as plainly untenable. It may be true that the contractor cannot be paid until the work specified is completed as the contract requires, but, granting this to be true, it would by no means follow that the commissioner did not have authority to levy an assessment.

Connsel quote the part of the statute defining the power of the commissioner, which reads as follows: "He shall assess from time to time upon the lands benefited, ratably upon the amount of benefits as adjudged by the courts, such sums of money as may be necessary therefor, not exceeding the whole benefits so adjudged upon any one tract, and require the same to be paid in installments, not exceeding

twenty per cent. per month, at such time as be shall fix, after thirty days' notice thereof, to be given by personal notice to the owner of such land, or by one publication in a newspaper published in each of the counties in which the lands benefited are situated, stating when and where such payments shall be made." But we are unable to perceive that this provision restricts the authority of the commissioner as counsel contend. On the contrary, it seems clear to us that the provision quoted, even if it were segregated from all others, would authorize an assessment to be ratably collected, although the work had not been done which the commissioners proposed to use the money in paying. The law enters into the contract as a silent factor, and, if there were doubt upon the question, the effect of the law would remove it by making the contract refer only to payment to the contractor; but the words of the contract are too clear to admit of doubt or require construction. We cannot resist the impression that the learned counsel for the appellant have been led into error upon this point by confusing the authority to pay the contractor prior to the completion of the work, with the authority to collect an assessment so as to be prepared to pay the contractor when his right to payment accrues. We fully agree with appellant's counsel that the powers of the drainage commissioner are statutory. He has only such powers as are granted to him expressly, or by clear and necessary implication. Weaver v. Templin, 113 Ind. 302, 14 N. E. Rep. 600; Smith v. State, 117 Ind. 167, 19 N. E. Rep. 744; Railroad Co. v. State, 105 Ind. 37, 4 N. E. Rep. 316; Fries v. Brier, 111 Ind. 65, 11 N. E. Rep. 958. But, while his powers are strictly statutory, he has, nevertheless, a reasonable and limited discretion. In providing in advance the means of paying the contractor when his claim should mature, the commissioner was unquestionably acting within the scope of his authority, and did not abuse the discretion conferred upon him by the statute.

We regard the answer as bad, although it be construed as sufficiently showing that the work was not done or being done as the contract required. In affirming this we do not mean to adjudge that the commissioner has authority to permit a material or injurious departure from the contract. We affirm, on the contrary, that he has no such authority. He may, perhaps, in the exercise of a sound and reasonable discretion, permit departures of an immaterial nature, or which cannot result to the injury of the landowners assessed, but he cannot authorize a change in the mode of doing the work to the substantial injury of those upon whom the burden of paying for it is cast by law. But it by no means follows that, because the duty of the commissioner is to compel the performance of the work in substantial compliance with the contract, his failure to do so will constitute a defense to the suit to enforce an assessment. The landowner is not without remedy, but his remedy is not by way of defense to the assessment. His remedy is to make applica

tion to the court having control of the work, and whose agent the commissioner is, to compel a performance of duty by the contractor and the commissioner. This was expressly decided in the case of Railroad Co. v. State, 105 Ind. 37, 4 N. E. Rep. 316. In that case it was said: "The remedy is to apply to the court, and, through its order and intervention, secure the due execution of the work." The answer in the case from which we have quoted is very much stronger than the answer in the case before us, for in that case the answer averred that it was impossible to construct the proposed ditch, and stated facts tending to support that averment, and it also averred that the ditch had been abandoned. It is clear, therefore, that we must either directly overrule that case, or adjudge the answer before us to be insufficient. We are, indeed, not required to carry the rule as far as it was carried in that case; for the answer before us is very far from making as strong a defense as was made in the case to which we have referred. Counsel, in speaking of the doctrine of Railroad Co. v. State, supra, say: "This theory, we think, is clearly answered: (1) That, until the commissioner has done some wrong, he could not be called before the court in contempt of its orders; (2) when the wrong has been done, it would be too late." It is obvious that counsel have not succeeded in answering the reasoning of the court in the case referred to. This we say because an order could have been obtained without delay, and the court could have compelled obedience by summary modes. If the appellant had been diligent, no loss could have occurred to him or any other property owner by reason of a departure from the requirements of the contract. Our ultimate conclusion is that, whatever view may be taken of the answer, there was no error in holding it bad. Judgment affirmed.

BUCKLES et al. v. STATE, to Use of RHINE, Commissioner of Drainage. CRUMLEY V. SAME. CONSTANT V. SAME. FULKERSON V. SAME. JOHNSON V. SAME. BROWN V. SAME. KITZMILLER V. SAME. LOCK V. SAME. MCKAY V. SAME. INMAN et al. v. SAME, (three cases.) EDWARDS V. SAME. BARNES V. SAME. MARTIN V. SAME. WAYMAN V. SAME. THORNBURGH V. SAME. FISHBACK et al. v. SAME. WILSON et al. v. SAME, CALDWELL V. SAME. STAFFORD et al. v. SAME. HOLCRAFT et al. v. SAME. STEWART et al. v. SAME.

(Supreme Court of Indiana. April 30, 1892.)

Appeals from circuit court, Blackford county; J. S. CUSTER, Special Judge.

Actions by the state against the several defendants to recover on drainage certificates for the use of the commissioner. Judgment for plaintiff. Defendants appeal. Affirmed.

Gregory & Silverburg and Jus. N. Templer, for appellants. Carroll & Dean and Shinn & Pierce, for appellee.

PER CURIAM. The judgment in each of the above-entitled cases is affirmed upon the authority of Racer v. State, 31 N. E. Rep. 81.

CURRY V. STATE, to Use of RHINE, Drainage Commissioner.

(Supreme Court of Indiana. April 30, 1892.) PUBLICATION OF NOTICE-AFFIDAVIT.

An affidavit of publication stated that "the notice was duly published * * * for three weeks consecutively, the first of which publications was on the 11th day of September, 1890, and the last on the 25th day of September, 1890." Held, that the affidavit showed three publications, the first and third publications being on the dates named, respectively, and the second on an intervening date.

Appeal from circuit court, Blackford county; J. S. CUSTER, Special Judge.

Action by the state, etc., against Aaron S. Curry. Judgment for plaintiff. Defendant appeals. Affirmed.

Gregory & Silverburg and Jas. N. Templer, for appellant. Carroll & Dean and Shinn & Pierce, for appellee.

ELLIOTT, C. J. The appellant entered a special appearance, and moved to quash "the proof of publication." Assuming that the motion properly presents the proposition argued by counsel, which is that the notice was not published the requisite length of time, we shall consider and decide the question argued; but in doing this we do not mean to be understood as deciding that it is well presented. The affidavit of the publisher of the newspaper in which the notice was published states that "the notice was duly published in said paper for three weeks consecutively, the first of which publications was on the 11th day of September, 1890, and the last on the 25th day of September, 1890." The statement of the publisher that the notice was published three weeks consecutively repels the assumption that there were but two insertions of the notice in the newspaper. The reasonable and fair construction of the affidavit is that the first publication was on the day first named, the third publication on the day last named, and the second on a day intervening between the first and last dates named in the affidavit. The decisions require this construction, and sustain the sufficiency of the notice. Security Co. v. Arbuckle, 123 Ind. 518, 24 N. E. Rep. 329; Horn v. Bank, 125 Ind. 381, 25 N. É. Rep. 558. The other questions in the case are fully disposed of by the decision in the case of Racer v. State, 31 N. E. Rep. 81. Judgment affirmed.

GILCHRIST V. STATE, to Use of RHINE, Drainage Commissioner.

(Supreme Court of Indiana. April 30, 1892.) Appeal from circuit court, Blackford county; J. S. CUSTER, Special Judge.

Action by the state, etc., against Samuel W. Gilchrist. Judgment for plaintiff. Defendant appeals. Affirmed.

Gregory & Silverburg and Jas. N. Templer, for appellant. Carroll & Dean and Shinn & Pierce, for appellee.

PER CURIAM. The questions in this case are the same as those decided in the case of Racer v. State, 31 N. E. Rep. 81, and Curry v. State, supra, and upon the authority of those cases the judgment is affirmed.