The opinion
Opinion Concurring and Dissenting in Part.
Jordan, J.
I can not unconditionally vote to affirm the judgment in this case, and may state that it appears to me that the majority of the court has indulged in an unwarranted procedure in holding that the amount awarded to appellee by the judgment below should be affirmed, without regard to the federal taxes, which the trial court, as is disclosed by its ruling on the exceptions, included as a part of the amount of recovery. If the amount of the federal taxes in question be remitted, then the amount of recovery remaining, in my opinion, will represent the extreme limit to which the State was legitimately entitled. This court seems to have reached the conclusion on the question in respect to the amount to be recovered, not by confining itself to a review of the rulings of the trial court on the exceptions filed to the findings and conclusions of the master commissioner on the point relative to what items should be included in constituting or making up the amount^ of re *488 covery, but has wholly disregarded this question or issue as the same was presented and raised by the exceptions- filed .below, and dismisses the several exceptions, and the rulings thereon, as of no avail in presenting any question for review in this case. Especially is the point or proposition disregarded, and not reviewed, which was determined adversely to appellant below, on the exception to the finding and conclusion of the commissioner in regard to its being entitled to a credit for the amount of the taxes which it paid to the federal government. I concede the right of the trial court to have set aside or rejected, as a whole, the findings and conclusions of the master, and to make its own finding upon the evidence in respect to the amount that ought to be recovered in this action. But this right, however, the trial court did not exercise. It is not disclosed that the court, on the evidence reported by the master, made a general finding without regard to its ruling on the exceptions upon this point, but it is evident that it decided the particular question on the specific exception made to the report of the commissioner. Or in other words, the trial court when it sustained an exception to certain parts of the report of the the commissioner, thereby in effect substituted its conclusion in the place of that stated by the master; and when it denied an exception, by such ruling, it, in effect, asserted that it adhered to and approved the finding or conclusion of the master commissioner. The exceptions and rulings thereon in respect to the recovery, as presented, are to be treated as constituting a special finding and conclusions by the court, and the parties have so considered them by basing assignments of error thereon. McCutchen v. McCutchen, 141 Ind. 697 . Under the rules pertaining to chancery practice, the findings and conclusions of a master are considered as in the nature of a special finding, and the right of the parties to present questions for review by means of exceptions thereto is recognized. This practice can not be said to be abrogated by the provisions of the civil code *489 pertaining to special findings. In fact, it may be said that such practice is at least impliedly recognized by the provisions of the code under which circuit and superior courts are empowered to appoint a master commissioner to report the evidence, etc. The opinion of the majority shows that this court rejects the question in regard to the amount to be recovered, as presented and raised by these several* exceptions, and has virtually usurped the rights of the lower court, by making its own finding upon the evidence to sustain the amount of the judgment; thereby considering not only the items which the trial co\irt allowed, but also those which it rejected and refused to allow in favor of the State. In other words, the opinion affirms that it is wholly immaterial whether the lower court was right or wrong in declining to credit appellant with the federal taxes in question, for the reason that there are other items which the trial court, as disclosed by its rulings on the exceptions, refused to allow in favor of appellee in assessing the amount of recovery, which, when considered in this appeal, this court holds are more than sufficient to supply the deficiency which would'result if the amount paid out by appellant as an excise tax was allowed to its credit.
Thh conclusion apparently reached is that the action of the trial court in denying appellant the right to a credit for these taxes, even though erroneous, must be deemed and treated as harmless. When the procedure or action of the court in finding, by the method employed, that the amount of recovery should be sustained, is considered, it is evident, in my opinion, that such procedure, under the. circumstances, is wholly unwarranted by the rules of law governing the review of the question as herein involved and presented in relation to the proper amount of recovery. The exceptions and rulings thereon by the trial court certainly serve to expose or indicate in this appeal the views of the trial court in its application of the law in regard to what items ought to be, and what ought not to be, taken into *490 consideration in assessing the amount which appellee is entitled to recover.
I concur with the majority of the court in its ultimate conclusion so far as it affirms, appellee’s right to recover in this action, and would vote for an affirmance generally, on the condition that the State he required to remit the amount as measured by the federal taxes paid by appellant. That the latter is entitled to this credit I think is settled by the following decisions, of the United States Supreme Court: Railroad Co. v. Collector, 100 U. S. 595 , 25 L. Ed. 647 ; United States v. Erie R. Co., 106 U. S. 327 , 27 L. Ed. 151 ; Memphis, etc., R. Co. v. United States, 108 U. S. 228 , 2 Sup. Ct. 482, 27 L. Ed. 711 .
These decisions construe the act of congress under which the taxes were imposed, and by them, — the question arising on the construction of the federal act in controversy, — this court is hound, and it is not within its province to modify or overrule them. ,