Boring v. State ex rel. Jackson

41 N.E. 270, 141 Ind. 640, 1895 Ind. LEXIS 326

• Court: Indiana Supreme Court
• Decided: August 30, 1895
• Docket: No. 17,661
• Status: Published

Opinions

Howard, C. J.

On the 3d day of June, 1895, the township trustees of Hancock county, under provisions of section 2 of an act entitled “An act to amend an act entitled ‘An act to provide for a general system of common schools, etc./ approved March 6, 1865, and adding supplemental sections thereto/’ approved March 8, 1873 (Acts 1873, p. 75; section 4424, R. S. 1881; section 5900, R. S.1894), met at the office of the county auditor and elected the relator superintendent of schools for the ensuing term of two years.

The auditor refusing to make a record of such election, or to accept and approve the oath of office and bond tendered by the relator, and to report his name and address to the superintendent of public instruction, as required by said section of the statute, this suit was brought for mandate to compel the performance of such duties.

On the issue of the alternative writ the auditor made return thereto, admitting the truth of the matters therein charged, but said, by way of avoidance, that the said section of the statute of March 8, 1873, under which the relator claimed his election, had been repealed by an act of the General Assembly, in force March 9, 1895 (Acts 1895, p. 208); and that according to the provisions of said last mentioned act, the election of a county superintendent was postponed until the first Monday of September, 1895.’

To this return a demurrer was sustained, after which judgment was rendered against appellant, and a peremptory writ issued.

The question to be decided is whether the act of March 9, 1895, is a valid law.

It is admitted by both parties to this appeal that the title and the enacting clause of the statute in question are defective. The appellee insists that these defects, under repeated decisions of this court, are fatal to the validity of the law; while counsel for appellant argue that, notwithstanding the defects complained of, the intent of the Legislature in the enactment of the statute is manifest, and that this intent has been expressed in substantial compliance with the requirements of the constitution.

The title, together with the enacting clause of the act of March 9, 1895, reads as follows:

“An act to amend section 33 of an act entitled an act to provide for a general system of common schools, the officers thereof, and their respective powers and duties, and matters properly connected therewith, and prescribing the fees for certain officers therein named, and for the establishment and regulation of township libraries, and to repeal all laws inconsistent therewith, providing penalties therein prescribed, approved March 6, 1865, and added supplemental sections thereto, approved march 8, 1873, being section 4424 of the revised statutes of 1881, and declaring an emergency.

“Section 1. Be it enacted by the General Assembly of the State of Indiana, That section 33 of the above entitled act, being section 4424 of the Revised Statutes of 1881, he and the same is amended to read as follows:

‘ ‘Section 33. The township trustees of the several townships of each county shall meet at the office of the county auditor of such county on the first Monday of September, eighteen hundred and ninety-five, and biennially thereafter, and appoint a county superintendent, who shall be a citizen,” etc.

Both in the title and in the body of the act it would thus appear that the Legislature expressed its intention to amend section 33 of the act of March 6, 1865. But it is agreed that said section 33 of the act of 1865 was amended by the act of March, 8,1873, and has therefore not been in existence since the latter date.

“We think the question well settled by the decisions of this court, ’ ’ say counsel for appellant, ‘ ‘that a section of an act or statute as amended supersedes and takes the place of the section or statute amended; and the section, as it stood before such amendment, ceases to exist, ?and is effectually repealed and obliterated from the statute, and therefore not- subject to an amendment.” Citing Longlois v. Longlois, 48 Ind. 60; Blokemore v. Dolan, 50 Ind. 194; Feibleman v. State, ex rel., 98 Ind. 516.

Counsel, therefore, admit that so far as the act in question professes to be an amendment of the act of 1865 it is invalid, as being intended as an amendment of section 2 of the act of 1873, by which latter act the act of 1865 had been amended and superseded.

“But,” say counsel, “both the title and body of the act of 1895 contain the descriptive phrase, ‘being section 4424 of the revised statutes of 1881.’ ” And it is, hence, argued that this reference to section 4424 of the revised statutes is sufficient to identify and make definitely known the section intended to be amended.

In other words, while it is admitted that the act of 1895 does not refer to the title of the act to be amended, as required by article 4, section 21, of the constitution, yet it is contended that a reference to the corresponding section of the revised statutes will supply the deficiency. Counsel have not satisfied us by argument or citation of authority that the position thus taken is tenable.

In Feibleman v. State, ex rel., supra, where a like reference to a section of the revised statutes was relied upon to supply the place of a reference to the section of the statute to be amended, the direct contrary was held.

In that case, Hammond, J., speaking for the court, said: “But if it should be conceded that it was intended by the act of 1883, in its reference to section 1418 of the revised statutes, to amend the first section of the act of 1867, it is proper to inquire whether such mode of statutory amendment has the sanction of the constitution. If the intention of the act of 1883 was not the amendment of the-first section of the act of 1852, but the amendment of the first section of the act of 1867 [by which the act of 1852 had been amended], then all references in the title of said act of 1883 to said act of 1852 should be regarded as surplusage, and, when eliminated, the title of said act of 1883 would read: 'An act to amend section 1418 of the revised statutes, and declaring an emergency. ’ Would this be sufficient? In other words, may a section of the revised statutes of 1881, or a section of any other statute, be amended by merely naming the section sought to be amended without referring to the title of the act of which it forms a part?”

After an examination of the force and application of the constitutional provision in question (article 4, section 21), to show that in all cases it is necessary to refer to the title of the act to be amended, as well as to set out the act as revised or the section as amended, the learned judge continues:

"This construction gives meaning and force to each clause of section 21, supra, of the constitution, and its observance enables the Legislature to act understanding^ in the amendment of statutes. If a section in the revision of 1881 may be amended by simply referring to it by number, so may a law of any session of the Legislature be amended in the same way by a title like this: 'An act to amend section 3, on page 46, of the acts of 1883.’ This would lead tó looseness and uncertainty in statutory amendments, which it was the main object of the constitutional provision under consideration to prevent. Section 19, of article 4, of the constitution provides that ‘every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title.’ And this ‘title,’ we think, under section 21, supra, must be referred to when any subsequent amendment of the act is made.”

Counsel criticise the Peibleman case as having “put rather a strained construction on the constitutional provision above set out” (article 4, section 21); but we are impressed with the soundness of the reasoning of the court, and see no sufficient cause to reject its authority.

Indeed, the attorney-general, who has filed a very candid brief in support of the act under consideration, admits that it is insufficient as an amendment of the act of 1873, in so far as it merely refers to the act of 1865 or to section 4424 of the Revised Statutes of 1881.

“It must, therefore, be taken as settled,” says he, “that so far as the act of 1895 attempts to amend the act of March 6, 1865, or section 4424 of the revision of 1881, it is inoperative and void as attempting to amend (a) something that was not in existence; (b) to amend a section without naming any title of the section sought to be amended.”

The attorney-general himself, however, advances a theory, based upon the words, “and added supplemental sections thereto, approved March 8, 1873,” in the title of the act of 1895, from which he argues the validity of the act.

We confess that we have found it difficult to follow the reasoning of the able representative of the State in this subtle argument. After expressly excluding, as we have seen, the reference to the act of 1865 and to section 4424 of the Revised Statutes of 1881, as insufficient to validate the act of 1895, he nevertheless says:

“The act of 1895 refers to section 33 of the act of March 6, 1865, with supplementary sections added, approved March. 8, 1873, being section 4424 oí the Revised Statutes of 1881. A comparison of section 4424 with section 2 of the amendatory act of March 8, 1873, will disclose that they are one and the same thing, to wit: section 33 of the act of March 6, 1865; not, it is true, as originally enacted, but as amended March 8, 1873, and that the title is as entirely within the reason of the constitutional rule as was the title in the Bush case.” (Bush v. City of Indianapolis, 120 Ind. 476.)

This seems to us, we say it in all candor, a violent and farfetched effort to attain what, we think, was intended by the constitution to be a plain and evident identification of a statute to be amended. We have not found, on examination, that any of our decisions go so far as counsel would thus have us go in upholding so strained a construction of a plain constitutional provision.

In the case of Bush v. City, supra, upon which counsel rely, the title of the amending statute (Acts 1889, p. 395) was absolutely correct, according to the severest rules of construction. “It will be observed,” said the court in that case, “that the title to the act sets out at full length the title of the act sought to be amended, recites that it is the intention to amend section 6 of said act, and that section 6 of said act is section 5317 of the Revised Statutes of 1881.”

While in the enacting clause the usual and proper method would have been to enact, “that section 6 of the above entitled act be amended so as to read as follows:” yet as the title expressly stated that section 6 of said act was section 5317 of the revised statutes, the court, recognizing “that under our constitution it takes both the title and the body of an act to constitute a valid law,” and that both must therefore be construed together, rightly concluded that it was a substantial compliance with the constitution for the enacting clause to name “section 5317 of the Revised Statutes of 1881,” instead of its equivalent, “section 6 of the above entitled act.”

In the act of 1895, however, there is not, either in the title or in the body of the act, any such identification of section 2 of the act of 1873, the section to be amended, with section 4424 of the revised statutes, the said section 2 of the act of 1873 not being even mentioned in the act of 1895.

We may observe, in addition, that this court has already, in two decisions, refused to consider the clause here referred to by the attorney-general as sufficient to sustain a like defective title and enacting clause, in a former attempt to amend this same section 2 of the act of 1873. By the act of March 9, 1875 (Acts 1875, Reg. Sess., page 131), it was attempted to amend the very section 2 of the act of March 8, 1873, which the act before us, that of March 9, 1895, also attempted to amend.

The title and enacting clause of the act of 1875 read as follows:

“An act to amend section thirty-three, etc., of an act entitled An act to provide for a general system of common schools, etc., approved March 6, 1865,’ and adding supplemental sections thereto, approved March 8, 1873.

“Section 1. Be it enacted, etc., That section thirty-three of said act be, and the same is, hereby amended so as to read as follows.”

It will be seen that the title and enacting clause of the amendatory act of 1875 are substantially identical with those of the act of 1895. In both are found the clauses, “and adding [added] supplemental sections thereto, approved March 8, 1873,” to which the attorney-general alludes as sufficient to save the act of 1895.

But, in Board, etc., v. Smith, 52 Ind. 420, and again in State, ex rel., v. Harrison, 67 Ind. 71, this court expressly held the act of 1875 void, as an attempt to amend the act of 1873, for the reason that the act of 1865, and not that of 1873, was referred to in the title.

In a supplemental brief, additional counsel, appearing for the appellant, advance still another theory to the effect that, under the decisions of this court, it would have been sufficient if in the act before us the title had merely referred to section 33 of the act of 1865, omitting all reference to the amendatory act of 1873 or to section 4424 of the revised statutes of 1881.

In support of this contention Bell v. Maish, 137 Ind. 226, at page 229, is cited to show that ‘ ‘A title stating that an act is an act to amend a given section of another act sufficiently advertises the purposes of the amendatory act.” We are at a loss to understand how this can help the act of 1895, the title of which does not state that the act is an act to amend any section in force at the time of the proposed amendment, but a section long before repealed.

Equally inapplicable is the quotation from Fuller v. Cox, 135 Ind. 46, where the title was not that of amendatory but of a supplemental act, supplemental also “to all acts amendatory” of the original act. So, in Robinson v. City of Valparaiso, 136 Ind. 616, there was no question as to the correctness of an amendment, but only as to which of two laws governed in a given case; and it was held that as the amendments had become a part of the original act, the act as so amended was the law of the case.

Counsel go even further, and in opposition to the concession of the attorney-general, and also to what we think evidently to be the law, say that “if the title of the act in controversy had simply stated that it was an act to amend section 4424 of the Revised Statutes of 1881, the purpose of the act would have been sufficiently advertised in the title.”

Filed Aug. 30, 1895.

This would certainly be a very loose method of revising and amending statutes, as is clearly shown in the Feibleman case, supra. Nor do we think, as counsel claim, that such a method is sanctioned in the case of Bush v. City, supra. There, as we have already said, the reference to the title of the old act was complete in the title of the new act. In addition, the number of the corresponding section of the revised statutes was given. Afterwards, in the body of the amendatory statute, the section of the revised statutes, so identified in the title, was used instead of the section of the act to be amended. Construing the title and the body of the amendatory act together, it was held that the /section to be amended was thus identified substantially as required by the constitution.

Here it is not section 2, or any other section of the act of 1873, but section 33 of the act of 1865, a repealed section, that is identified with a section of the revised statutes.

Unless the current of our decisions as to the amendment of statutes is to be turned aside, and many well considered cases overruled, we must hold that an amendatory act, as that of March 9, 1895, which wholly fails to refer to the act to be revised or the section to be amended, is, under the constitution, void.

Nor is it enough that the statute to be amended be identified; it must be identified substantially in the manner provided for in the constitution, as the same has been interpreted by an unbroken line of the decisions of this court.

The judgment is affirmed.