DISSENTING OPINION. The petitioner never acquired jurisdiction over the State of Indiana in the ditch proceedings. *Page 619 As far as the state was concerned, the entire proceedings ignored the plain provisions of § 24 of Article 4 of the Constitution of Indiana which provides: "Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed." See dissenting opinion in State v.Roberts et al., ante, p. 106, 78 N.E.2d 440.
"Drainage proceedings are wholly statutory, and questions as to the authority of the court in constructing a new drain, or changing, repairing, or extending a drain already established, must be solved by a reference to the statute." Kilty v.Michael (1921), 190 Ind. 374, 382, 130 N.E. 531, 534. See alsoTaylor v. Strayer (1906), 167 Ind. 23, 78 N.E. 236, 119 Am. St. Rep. 469; Kaufman v. Alexander (1909), 173 Ind. 136, 139, 88 N.E. 502, 504.
The statutory provisions as to what the petition for repair of an existing drain must contain are perfectly clear. Section 27-120, Burns' 1948 Replacement, (Acts 1933, ch. 264, § 20, p. 1168; 1937, ch. 162, § 2, p. 853; 1945, ch. 221, § 16, p. 1021), provides in part:
"(a) The owner or owners of five (5) per cent in acreage of the land affected by and assessed for the construction of any public drain under any law of this state shall have the right to file a petition and therein allege:
". . .
"(b) No petition filed in conformity with the provisions of paragraph (1) of subsection (a) of this section shall contemplate the increasing of the tile, the average deepening and widening or the extension more than ten (10) per cent of the original plans and specifications." (Italics supplied.) *Page 620
Without reference to the general principles of law concerning the pleading of any statutory causes of action, it is abundantly clear under the plain words of this statute that the burden is upon the petitioners to allege in their petition that the increasing or extension of the drain shall not be more than ten (10) per cent of the original plans and specifications. The Legislature did not intend by this language that the defendants should write the petition for the drain and show that the repair would not exceed the original plans and specifications by ten (10) per cent.
"When an action is based on a statute, the complaint must allege specifically and fully all the facts necessary to bring the case clearly within the provisions of the statute. . . .
". . . It was a rule of pleading at common law that if an exception in a statute appeared in the enacting clause, the declaration must show that the plaintiff, or the action brought, was not within the exception; but where the exception appeared in a subsequent clause or in a proviso, it was not necessary to notice it in the complaint. The rule is the same under the code as at common law. But if the exception is in a proviso or a subsequent clause, and the exception is necessary to constitute the cause of action, it must be set out. The test is, whether the exception is necessary to be alleged to constitute a cause of action. If so, it must be averred, no matter in what part of the statute it occurs." 1 Watson's Works, Practice and Forms, p. 294, 295, 296, § 414. See also Lowe's Revision of Works' Indiana Practice, § 13.13; II Gavit, Indiana Pleading and Practice, p. 1714, § 236; People v. Valparaiso (1912), 178 Ind. 673, 100 N.E. 70; Sherfey v. Brazil (1938), 213 Ind. 493,13 N.E.2d 568; Thornburg v. American *Page 621 Strawboard Co. (1895), 141 Ind. 443, 40 N.E. 1062, 50 Am. St. Rep. 334; Lese v. St. Joseph Valley Bank (1924),81 Ind. App. 517, 142 N.E. 733.
Clause (b) of § 27-120, Burns' 1948 Replacement, is not an exception, nor a proviso in any sense of the terms. It tells the petitioners what they must put in their petition to state a statutory cause of action, and it follows as a necessary result that the burden of proof is upon petitioners to prove these statutory requirements.
The principles involved in this appeal are analogous to those in the statutory cause of action for wrongful death, which did not exist in common law, but was enacted by statute in this state. Northern Indiana Power Co. v. West (1941),218 Ind. 321, 32 N.E.2d 713. In Hanna, Admr. v. JeffersonvilleRailroad Co. (1869), 32 Ind. 113, this court held that the burden was upon the plaintiff to allege that the wrongful death occurred within the two-year period fixed by the statute creating the right, and that, therefore, a complaint which did not allege death within the statutory period was subject to demurrer.
The fact that the sufficiency of the petition was not questioned in the trial court would not relieve the petitioners of the burden of proving their cause of action, which included every essential element thereof. A judicial inquiry in which a proponent neither has to allege nor prove a cause of action is a mere sham proceeding, which deprives the defendant of his property without due process of law. Although the sufficiency of the petition was not tested in the lower court, the failure to do so could not in any event relieve the petitioners of the burden of proof to establish a cause of action under the statute. Although the failure to demur to a complaint waives the sufficiency of the *Page 622 pleading to state a cause of action, this does not waive proof by the plaintiff to establish his cause of action. Prudential Ins.Co. v. Ritchey (1919), 188 Ind. 157, 119 N.E. 369, 484;Keltner v. Patton (1933), 204 Ind. 550, 185 N.E. 270;Thompson v. Divine (1920), 73 Ind. App. 113, 126 N.E. 683.
The record in this case does not show whether the proposed repair exceeded the original plans and specifications by ten (10) per cent in the size of the tile, or the depth, widening or extension of the drain. This constitutes a failure to prove an essential element of the cause of action, for which the judgment should be reversed.
Gilkison, J. concurring.
NOTE. — Dissenting Opinion reported in 82 N.E.2d 81.