R. J. Stephens, of Murphysboro, for ap- the railroad to be $1,000 and to the public pellant. Martin & Glenn, of Murphysboro, roads $500; but, instead of classifying all (Harold F. Lindley, of Murphysboro, of counsel), for appellees. CARTWRIGHT, J. The commissioners of Boone's Pond Mutual drainage district levied an assessment of $15,389.50 on the lands within the district and on a railroad and the public roads therein, for the purpose of cleaning out the old ditch and making other improvements. A full explanation of the facts was made in Boone's Pond Mutual Drainage District v. St. Louis, Iron Mountain & Southern Ry. Co., 268 Ill. 264, 109 N. E. 21. The assessment was known as as sessment No. 2, and was apportioned among the land within the district according to an original classification, and was charged upon the railroad and public roads according to fractional figures upon a reclassification which included only the railroad and public roads. On the appeal of the railway company the assessment was declared void as against its property. Upon the application of the county collector for judgment against the lands of the appellees, Ronald O'Daniel and George O'Daniel, the county court of Jackson county sustained objections and refused judgment. The material question now is whether the assessment could be sustained so far as it was levied upon the lands within the district although void as to that part levied upon the railroad and public roads. [1, 2] In the original classification the lands of the appellees were classified at 100, and when a valid classification is once made it remains the basis of future assessments until changed. People v. Hulin, 237 Ill. 122, 86 N. E. 666; People v. Chicago & Interurban Traction Co., 267 Ill. 510, 108 N. E. 687. It is provided, however, by section 21 of the Farm Drainage Act, as amended in 1891 (Laws of 1891, p. 102), that, if it is found from experience and results that the original classification is not fairly adjusted according to benefits, it shall be disregarded and the commissioners shall make a new classification in accordance with justice and right. After the original classification was made in this district and the system of drainage had been completed, a railroad was constructed across lands within the district, and the commissioners determined that the original classification was not fairly adjusted according to benefits and found the benefits to the lands of the district so that an assessment might be fairly adjusted according to benefits, they fixed the benefits to the railroad property and public roads alone. That proceeding was not authorized by statute, which requires a reclassification of all property within the district, and every landowner had a right to notice and a hearing, not only concerning the proportion which his lands should bear of any assessment to be levied thereafter, but also as to the proportion which every other piece of property should bear. The landowners had no notice and no opportunity to be heard, either as to the fair proportion to be charged to their lands or the amount of benefits to the railroad or pub-. lic roads. A certain sum of money was to be raised by an assessment, and every landowner had a right to have it fairly adjusted according to benefits and to that end to have an opportunity to be heard. The assessment was apportioned partly according to the original classification of the lands of the district after taking out that portion of the lands occupied by the railway company, and partly on the attempted reclassification. The assessment therefore was not based upon the original classification, and the rights of landowners are not to be determined by the question whether an illegal attempt at a reclassification affects an original one. [3] If a property owner has notice of a proceeding to make a classification or reclassification, with an opportunity to be heard, it is too late to make objection to the classification or reclassification on the application for judgment. People v. Whitesell, 262 111. 387, 104 N. E. 688; People v. Le Tempt, 272 Ill. 586, 112 N. E. 335. In this case, however, the landowners had no notice of any proceeding to reclassify the lands and no opportunity to be heard, either as to the fair proportion to be charged to their lands or the benefits to the railroad or public roads. The court did not err in sustaining the objections. Various questions touching procedure are argued by counsel, but a consideration of them would not be profitable in view of our conclusions as to the validity of the assessment. The judgment is affirmed. (186 Ind. 29) SCHOWE v. BOWERS et al. (No. 23060.) (Supreme Court of Indiana. Jan. 9, 1917.) APPEAL AND ERROR 766-BRIEFS-SUFFI CIENCY. An appellant's brief containing a narrative of proceedings before highway commissioners and a circuit court with a discussion of certain rulings, but containing no statement of errors or abstract of record, or points or authorities, waives all questions suggested and necessitates a dismissal of the appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3101, 3126; Dec. Dig. 766.] Appeal from Circuit Court, Clark County; James W. Fortune, Judge. Action by Henry F. Schowe against John M. Bowers and others. From action of the clerk of the circuit court dismissing his appeal from a judgment entered by the board of highway commissioners of Clark county, plaintiff appeals. Appeal dismissed. H. A. Burtt and J. E. Taggart, both of Jeffersonville, for appellant. James Calvin McKillip, of Charlestown, for appellees. SPENCER, J. This is a highway proceeding in which appellant seeks to question the action of the Clark circuit court in dismissing his appeal from a judgment entered in such proceeding by the board of commissioners of Clark county. What purports to be "appellant's brief" contains only a short narrative statement of the various steps taken before the board of commissioners and the circuit court, and an argument in which counsel discuss some of the rulings to which obJection is urged. The errors relied on for reversal are not set out in any form, there is no attempt made to state the record or its substance, and no points and authorities are submitted in support of appellant's contention. This failure to comply with the rules governing the preparation of briefs in this court operates as a waiver of all questions suggested and necessitates a dismissal of the appeal. City of Huntington v. Cline, 181 Ind. 7, 103 N. E. 795; Anderson v. State, 179 Ind. 590, 101 N. E. 84; Pry v. Ramage, 176 Ind. 446, 96 N. E. 385; Doehring v. Hollenbeck, 58 Ind. App. 80, 104 N. E. 770. Appeal dismissed. Where an assignment is unsupported in appellants' brief by either authorities or argument, its consideration is waived. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3011-3013; Dec. Dig. 1178.] 2. CRIMINAL LAW 1130(3) — APPEAL-REVIEW-INSTRUCTION-BRIEFS. Where the evidence has been brought into the record, but no attempt has been made to state it in appellants' brief, the Supreme Court must consider instructions complained of in the light of any evidence admissible under the issues, since it will not look to the record to reverse the judgment. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3205; Dec. Dig. 1130(3).] 3. CRIMINAL LAW1130(3)-APPEAL-QUESTIONS PRESENTED-BRIEFS-SUFFICIENCY OF INSTRUCTIONS. tions given at the state's request and to the re Where the objections urged against instruc based wholly on their relation to the evidence, fusal of instructions tendered by appellants are their sufficiency may not be determined in the absence of proper statement of the evidence in appellants' brief. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2967, 2969; Dec. Dig. 1130(3).] 4. CRIMINAL LAW 810 PUNISHMENT. INSTRUCTIONS In a prosecution for keeping a place where intoxicating liquors were sold in violation of Burns' Ann. St. 1914, § 8351, instruction 1A set out the part of the section on which the prosecution was based, in which it is provided that, on conviction, defendant shall be fined in any sum not less than $50, and not more than $500, to which the court or jury shall add imprisonment in the county jail of not less than 30 days nor more than 6 months. Instruction 34 related to the form of the verdict and authorized the jury, in case they should find defendant guilty and should deem a fine and imprisonment in the Indiana State Farm to be the proper penalty, to fix in their verdict the amount of such fine and the length of such imprisonment. Instruction 32 set out the provisions of Burns' Ann. St. 1914, § 9926h, which authorizes the commitment to the Indiana State Farm of persons convicted of the violation of criminal laws for which the punishment should include imprisonment in the county jail for more than 60 days, and instruction 34 merely indicated a form of verdict which should inform of verdict for use in case imprisonment clude that penalty. Instruction 33 provided a in the county jail for 60 days or less was determined to be the proper punishment, and other and for varying degrees of guilt. Held, that instructions provided for verdicts of acquittal there was no error in any of the instructions, and that instruction 1A and 34 were not inconsistent and contradictory. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1968; Dec. Dig. 810.] 5. CRIMINAL LAW 884-VERDICT-PUNISH MENT. In a prosecution of four defendants for keeping a place where intoxicants were sold in violation of Burns' Ann. St. 1914, § 8351, verdict that the jury found defendants each guilty as charged, and fixed the punishment of each at a fine of $400 and imprisonment in the Indiana State Farm for 150 days, was not contrary to law because fixing a fine of $1,600 and imprisonment for 600 days as punishment for violation of a statute providing a lesser punishment as the maximum penalty. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec. Dig. 884.] 6. CRIMINAL LAW 1129(3)—APPEAL-PRESENTATION OF GROUNDS OF REVIEW - INSTRUCTIONS. The bare assertion against instructions that they contain error presents no question for review. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2957, 2959; Dec. Dig. 1129 (3).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-44 [4] The objection urged against instruction 1A, given at the request of the state, and instruction 34, given by the court on its own motion, is that they are inconsistent and contradictory. Instruction 1A sets out that part of section 8351, Burns 1914, on which the prosecution is based, and in which it is provided that on conviction the defendant "shall be fined in any sum not less than fifty ($50.00) dollars and not more than five hundred ($500.00) dollars, to which the court or jury trying the case shall add imprisonment in the county jail of not less than thirty days nor more than six months." Instruction 34 relates to the form of the ver Appeal from Circuit Court, Lawrence dict and authorized the jury, in case they County; Oren O. Swails, Judge. John Meno and others were convicted of keeping a place where intoxicating liquors were sold in violation of Burns' Ann. St. 1914, § 8351, and they appeal. Judgment affirmed. Boruff & Boruff and John H. Underwood, all of Bedford, for appellants. Evan B. Stotsenburg, Atty. Gen., and Thomas H. Branaman, of Brownstown, for the State. SPENCER, J. Appellants have been tried and found guilty of keeping a place where intoxicating liquors were sold in violation of section 8351, Burns 1914, and have appealed from the judgment of conviction. [1] The first assignment of error questions the action of the trial court in over ruling appellants' motion to quash the indictment, but, as this assignment is unsupported in appellants' brief by either authorities or argument, its consideration is waived. Campbell v. State, 179 Ind. 240, 100 N. E. 755. [2, 3] The remaining assignments seek to present alleged error of the circuit court in overruling appellants' separate and several motion for a new trial. Contention is first made that certain of the instructions given contain incorrect statements of law, and that others, tendered by appellants, were improperly refused. Although the evidence has been brought into the record, no attempt to state the same in appellants' brief has been made, and, as this court will not look to the record to reverse the judgment, we must consider the instructions in the light of any evidence which was admissible under the issues. Since the objections urged against instructions 10 and 18, given at the request of the state, and to the refusal of instructions 26 and 28, tendered by appellants, are based wholly on their relation to the evidence given at the trial, their sufficiency may not be determined in the absence of a proper statement of that evidence in appellants' brief. For the same reason, all questions as to the admissibility of evidence and as to the sufficiency of the evidence to sustain the verdict are waived. In should find the defendant guilty and should deem a fine and imprisonment in the Indiana State Farm to be the proper penalty, to fix in their verdict the amount of such fine' and the length of such imprisonment. struction 34, however, is singled out from several instructions which relate to the form of verdict, and when the charge is considered as a whole the objection urged must be recognized as trivial. Instruction 32 sets out in substance the provisions of section 9926h, Burns 1914, which authorizes the commitment to the Indiana State Farm of persons convicted of the violation of criminal laws for which the punishment should include imprisonment in the county jail for more than 60 days, and instruction 34 does no more than to indicate a form of verdict which should include that penalty. Instruction 33 provides a similar form for use in case imprisonment in the county jail for 60 days or less was determined to be the proper punishment, and other instructions provided for verdicts of acquittal and for varying degrees of guilt. There was no error in any of these instructions. [5] Nor is there any merit in appellants' contention that the verdict is "contrary to law because it fixes a fine of $1,600 and imprisonment for six hundred days" as punishment for the violation of a statute which provides a lesser punishment as the maximum penalty. The verdict was: guilty as charged in the indictment, and fix the "We, the jury, find the defendants each punishment of each at a fine of $400 and imprisonment in the Indiana State Farm for 150 days." Each of the four defendants was found guilty and sentenced to pay a fine of $400 and to serve 150 days at the penal farm. The number of defendants is of no importance, however, for every person convicted of a violation of law may receive the maximum penalty if his triers so decree. [6] As against other instructions given by the court the bare assertion is made that they contain error, but no question is thus presented for review. Bonnel v. Shirley, 131 Ind. 362, 31 N. E. 64. [7, 8] Finally, it is claimed that a new trial should have been granted on account of alleged misconduct on the part of counsel for the state and on the part of one of the jurors who tried the case, but appellants' statement of the record contains no reference to either of these matters, except as they are mentioned in the motion for a new trial. Furthermore, it appears from the record itself that the charge made against the juror in question was met by a counter affidavit which raised an issue of fact on which the decision of the trial court is final (Thain v. State, 182 Ind. 345, 349, 106 N. E. 690), and that the statement of counsel to which objection is urged may be found only in the general bill of exceptions containing the evidence. McPherson v. State, 178 Ind. 583, 586, 99 N. E. 984; Heath v. State, 173 Ind. 296, 300, 90 N. E. 310, 21 Ann. Cas. 1056. No error appearing, the judgment of the trial court is affirmed. (186 Ind. 21) PREBSTER et al. v. HENDERSON et al. (No. 22784.) (Supreme Court of Indiana. Jan. 5, 1917.) NAMES 16(2)-IDEM SONANS. A published notice of appeal to one "Trout" instead of "Tout" is sufficient, since the names are idem sonans. [Ed. Note.-For other cases, see Names, Cent. Dig. 13; Dec. Dig. 16(2).] Appeal from Circuit Court, Boone County; Meade Vestal, Special Judge. On rehearing. Original decision adhered to. For former opinion, see 113 N. E. 241. Bachelder & Bachelder, of Indianapolis, William J. Wood, of Lebanon, and Thad S. Adams, of Danville, for appellants. Harvey & Harvey, of Indianapolis, A. J. Shelby, of Lebanon, and Samuel Ashby, of Indianapolis, for appellees. of the letter "r" was disregarded, it being (186 Ind. 1) CITY OF RUSHVILLE v. HEYNEMAN. (No. 23000.) (Supreme Court of Indiana. Jan. 2, 1917.) COMMERCE 40(2)-INTERSTATE COMMERCESOLICITING ORDERS FOR FUTURE DELIVERY. Where defendant, a resident of Ohio, took Indiana for men's clothing by sample for future orders within the corporate limits of a city in delivery by his employer, an Ohio corporation, the transaction was one governed by the interstate commerce laws of the federal government, since the merchandise at the time of sale had not come into Indiana; so that defendant was not liable to penalty for violation of the peddler's ordinance of the city. [Ed. Note.-For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. 40(2).] Appeal from Circuit Court, Rush County; Will M. Sparks, Judge. Action by the City of Rushville against Louis Heyneman. From a judgment for defendant, plaintiff appeals. Judgment affirmed. Kiplinger & Smith, of Rushville, for appellant. George W. Young and James V. Young, both of Rushville, for appellee. LAIRY, C. J. On petition for rehearing appellees assert that this court erred in its original opinion in holding that names "Trout" as appearing in the notice of appeal given by publication is idem sonans with the name "Tout," which was the real name of three of the appellees. It is claimed that the mistake in the spelling of the names of the appellees is of such a nature as to render the notice by publication of no effect, and that, as no notice of the appeal was given as to the appellees whose names were thus misspelled, this court has no jurisdiction of the appeal, and that the appeal should have been dis-or exhibits for sale any goods, books, pictures, missed for that reason. The court was not without authority for holding that the names "Trout" and "Tout" are idem sonans. In Stewart v. State, 4 Blackf. 171, the names "Beckwith" and "Beckworth" were held to be idem sonans, and a like holding was made as to the names "Conn" and "Corn." Moore v. Anderson, 8 Ind. 18. In both of the cases cited the sound ERWIN, J. This was an action by appellant against appellee to recover a penalty on a charge of violating the peddlers' ordinance of appellant city. The ordinance provides: "That every person who peddles, hawks, sells wares or merchandise of any kind, or who shall so list or take orders for any such goods, books, pictures, wares or merchandise of any kind, for immediate or future delivery about the streets, alleys, hotels, business houses, private dwellings or any public or private places in said city without first having paid the marshal of said city two ($2.00) to six ($6.00) dollars for each day, receiving a permit therefor from the mayor of at the discretion of said marshal, and said city, shall upon conviction thereof, forfeit and pay to said city any sum not exceeding * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ten ($10.00) dollars for each day such person shall continue such business without a permit as herein provided." Appellee answered appellant's complaint in three paragraphs. Trial upon the issues was had by the court without the intervention of a jury resulting in a judgment for appellee. Appellant filed its motion for a new trial, assigning as causes therefor that the decision of the court (1) is not sustained by sufficient evidence, (2) is contrary to law, and (3) is contrary to the law and to the evidence. duty to rebuild rested upon such adjoining own- 15-AGREEMENTS OF LANDOWN ERS. Burns' Ann. St. 1914, § 7379, requiring township trustee to rebuild line fence upon refusal of landowner to do so, does not make istence of a contract between adjoining landthe trustee a tribunal to determine the exowners regarding the maintenance of such fence, and the landowner is entitled to have the adjudication of a court of competent jurisdiction as to the existence of such contract before being required to rebuild his portion of fence. 15.] [Ed. Note. For other cases, see Fences, Cent. Dig. §§ 29-35, 40-44; Dec. Dig. 3. COVENANTS 68-NOTICE. A parol contract between adjoining landtion fence, does not afford such actual or conowners, concerning the maintenance of a parti constitute a covenant running with the land, tee of one of the parties who purchased withand hence cannot be enforced against a granout notice. The error assigned here is the overruling of appellant's motion for a new trial. The sole question presented is: Is appellant's ordinance as applied to the facts in this case an interference with interstate commerce? The facts here are, in substance, that on February 23, 1915, appellee was a resident of Cincinnati, Ohio; he was taking orders with-structive notice to subsequent grantees as to in the corporate limits of the appellant city for men's clothing by sample for future delivery without having paid for the privilege or without having received a license as provided by the ordinance; that he was about the streets, alleys, hotels and business hous es and private dwellings of appellant city, and peddled and exhibited for sale by sample and sold to one Carl Foust certain merchandise for future delivery by appellee's employer, Richman Bros. Company, located at Cleveland, Ohio, by express, C. O. D., sub-owner had refused to rebuild. From a judgject to inspection. The merchandise here had not at the time of their sale come into this state, it had not been mingled with the mass of property within this state, and was not subject to inspection and delivery at the time of the sale, but was to be subsequently shipped and delivery made from another state. Therefore the transaction was one governed by the interstate commerce laws of the federal government, and was within the limits where the state and municipal authorities have no control. The court did not commit error in overruling appellant's motion for trial. City of Huntington v. Mahan, 142 Ind. 695, 42 N. E. 463, 51 Am. St. Rep. 200; City of Indianapolis v. Bieler, 138 Ind. 30, 36 N. E. 857; Martin v. Town of Rosedale, 130 Ind. 109, 29 N. E. 410; McLaughlin v. City of South Bend, 126 Ind. 471, 26 N. E. 185, 10 L. R. A. 357. a new There being no reversible error, judgment is affirmed. (186 Ind. 16) [Ed. Note.-For other cases, see Covenants, Cent. Dig. §§ 65, 66; Dec. Dig. 68.] Appeal from Circuit Court, Washington County; Win. H. Paynter, Judge. Petition for mandamus by the State, on the relation of Peter M. Hamilton, against Elza V. Bartlett, trustee, etc., to compel respondent to rebuild line fence which land ment granting the writ, and dismissing demurrer to plaintiff's petition, and denying motion for new trial, defendant appeals. Reversed, with instructions to sustain de murrer. Walter G. Mead, of Salem, for appellant. Elliott & Houston, of Salem, for appellee. SPENCER, J. It appears from appellee's complaint that on September 26, 1913, and continuously since that date, one George V. Ratts and the relator were and have been the owners of certain adjoining tracts of land situate in Washington county and separated by a partition fence running east and west; that prior to the purchase by Ratts of the land now owned by him the relator entered into an agreement with the then owner of such land, one Lyman E. Hamilton, whereby it was mutually understood and agreed that said Hamilton was to erect, maintain, and keep in repair the east half of the partition fence above referred to, and relator was to keep in repair the west half BARTLETT 7. STATE ex rel. HAMILTON. of the same; that on September 26, 1913, (No. 22774.) (Supreme Court of Indiana. Jan. 4, 1917.) 1. MANDAMUS 10 RIGHT IN DOUBT AGREEMENTS OF LANDOWNERS. said fence was in a bad state of repair, and was insufficient to serve as a partition fence between the lands in question; that on or about September 5, 1913, the relator caused A petition for mandamus, under Burns' Ann. to be repaired and rebuilt the west half of St. 1914. § 1225, to compel a township trustee such fence, and on September 26, 1913, he to rebuild one-half of a partition fence which relator's adjoining owner had refused to build, served notice on said Ratts to rebuild the will be dismissed upon demurrer, where no least half of the fence within 20 days, which |