Draper v. Zebec , 219 Ind. 362 ( 1941 )

ON PETITION FOR REHEARING. The appellee Katherine Zebec has filed a petition for rehearing in which it is asserted that: "The decision contravenes two earlier Supreme Court decisions regarding title of statutes," and it is suggested that, if the opinion is to stand, Lewis v.State (1897), 148 Ind. 346, 47 N.E. 675, and Stiers et al. v.Mundy et al. (1910), 174 Ind. 651, 92 N.E. 374, should be overruled. These cases were first called to the court's attention in the brief on petition for rehearing. It is conceded that the opinion is sustained by the weight of authority, but it is contended that a contrary rule is established by the decisions of this court.

It is clear that the subject-matter of an amending act may be as broad as the title of the act which is amended unless 20. the title of the amending act restricts the subject-matter to a narrower field.

In the Lewis case the court considered an act entitled, "``An act to amend section 209 of an act entitled, "An act concerning public offenses and their punishment," . . .'" (Page 348 of 148 Ind., page 676 of 47 N.E.) The amending act contained two sections. The court held that the subject-matter of both sections of the amending act was within the purview of the subject of section 209, which was amended, and that the act would not be stricken down because the amending act was in two sections. The appellee is in error in assuming that the original opinion holds the act to be unconstitutional because of the division into additional sections.

The result reached in the Stiers case rests upon the conclusion that (page 654 of 174 Ind., page 376 of 92 N.E.): "Under the decisions of this court the mere fact that the proviso of the amendatory act of 1901, supra, refers to matters not germane to the subject-matter of the particular section it purports to amend does not render it unconstitutional and void, if the subject-matter incorporated in the amendment is within the purview and is germane to the title of the act amended. Lewis v. State (1897), 148 Ind. 346, and cases cited; Rose v. State (1909), 171 Ind. 662, and cases cited; Cain v. Allen (1907), 168 Ind. 8, 24." The court seems to have assumed that the rule announced was established and settled by the cases cited, since there is no analysis or discussion of the principles involved.

In Cain v. Allen et al. (168 Ind. 8, 79 N.E. 201, 896) the court held that an amended section 9 was within the title of the original act. From the statements in the opinion and the authorities cited, it seems clear that no question was raised upon the sufficiency of the title of the amending act.

In Rose et al. v. State (page 665 of 171 Ind., page 104 of 87 N.E.), it is said: "The subject of the act of 1907, supra, is that of the act of 1875 (Acts 1875 [s.s.], p. 55), of which it is an amendment. . . ." An examination of the briefs in the case discloses that no question was made concerning the title of the amending act. The only contention was that the act dealt with two non-related subjects.

As we have already pointed out, the sufficiency of the title of the amending act was not involved in Lewis v. State. It is clear therefore that the statement quoted from the Stiers case is not supported by the authorities cited. We have investigated the cases to discover whether it finds support elsewhere in the decisions of this court.

Reed v. State (1859), 12 Ind. 641, 642, involved an act entitled, "``An act to amend section eleven of an act entitled "An act to establish Courts of Common Pleas, and defining the jurisdiction and duties of, and providing compensation for the judges thereof," approved May 14, 1852 — so as to extend the jurisdiction of said Court in certain cases.'" Section 11 of the original act defined the jurisdiction of the court in civil cases. The first section of the amendatory act relates to jurisdiction in civil cases, and the second section of the amendatory act relates to jurisdiction in criminal cases. It is clear beyond controversy that both civil and criminal jurisdiction were within the title of the original act, and within the last part of the title of the amendatory act "so as to extend the jurisdiction of said Court in certain cases." In the discussion the court concerned itself only with the question of whether or not criminal jurisdiction came within the purview of section 11 of the original act. There would have been no concern with this question unless the amending act, having provided that its purpose was to amend section 11 only, must be limited in its operation to the purview of section 11. The court said (page 647 of 12 Ind.): "We think, therefore, that, as before stated, the subject of the eleventh section of the old statute was in relation to the jurisdiction of the Court; and as the subject of the statute under consideration was an increase of the jurisdiction of that Court, the whole of said act upon that subject was properly included under the title set forth; and that the whole of the enactment, in that respect, is an amendment of that section, expressed, it is true, in a very inartificial, bungling, and awkward form, but conforming substantially to the constitutional requirement." The last clause of the quotation refers to the amending statute containing two sections, whereas it purported to amend but one section of the original law. The court concluded that this was of no consequence so long as the subject-matter of both sections of the amending statute was within the purview of the section indicated for amendment in the title.

State v. Bowers (1860), 14 Ind. 195, involved an amendatory act, the title of which seems to have been broader than the title of the original act. It was said that the subject of the original act was licenses. It was held that a provision for licensing concerts was not within the title of the original act. The title of the amendatory act was broader, but it was said (page 198 of 14 Ind.): "For the purposes of this case, the amendatory act may be considered as entitled an act merely to amend the former act, without in any manner indicating the nature of the amendment." This is clearly true in any case where the title of the amending act is broader than the title of the original act. The case is far from a holding that a title of an amendatory act, indicating a restricted field inclosing less than the entire subject of the original act, will permit of an amendment outside the restricted field. It is said, concerning Reed v. State, that it (page 198 of 14 Ind.) "goes as far as any decided case in sustaining legislation."

In Brandon v. State (1861), 16 Ind. 197, it is said: "If the title of the original act is sufficient to embrace the provision in question, it is unnecessary to inquire whether the title of the amendatory act would, of itself, be sufficient."State v. Bowers is cited as authority. The statement was correct when applied to the facts in the Bowers case, where the title of the amendatory act was treated as broader than the title of the original act. In the Brandon case the only question considered was whether or not a provision for courts was within the scope of the title of the original act, which provided for the formation of new counties, and no question of the new matter being within the scope of section one of the original act was considered.

From the earliest times it has been uniformly held that an act of the Legislature which attempts to amend a section of a statute which has already been amended is unconstitutional and 21, 22. void, notwithstanding the title of the amendatory act sets out in full the title of the act sought to be amended. See Feibleman v. State ex rel. Brown, etc. (1884),98 Ind. 516, and cases cited, and Boring, Auditor, v. State exrel. Jackson (1895), 141 Ind. 640, 41 N.E. 270. This rule is entirely inconsistent with the contention that the amending act is valid if its subject-matter is within the title of the act sought to be amended, but it is consistent with the rule that the subject-matter of the amending act must be within the purview of the section which the title indicates as the part of the original act to be amended.

The case of Reed v. State is well considered and clearly indicates the conclusion of the court that the subject-matter of the amendatory act must come within the purview of the section of the original act indicated for amendment in the title of the amendatory act. Some of the language in State v. Bowers andBrandon v. State, standing alone, may seem to announce a rule inconsistent with Reed v. State, but, in so far as the language is inconsistent, it is obiter dictum. When the facts and questions presented are considered, the decisions in the latter two cases are not inconsistent with the earlier case. A careful examination of the Stiers case convinces that the court's attention was not called to Reed v. State. The rule announced is assumed to be established. Reed v. State is not overruled, nor is there any indication that the court was conscious of a conflict with this early case.

In Board of Com'rs of Allen County v. Trautman (1933),204 Ind. 362, 368, 184 N.E. 178, 181, this court considered an act entitled, "An Act to amend section 138" of an existing statute. The appellant contended that, although the title of the amendatory act expressed an intention to amend section 138 only, the act in fact amended both sections 136 and 138, and that it therefore contravened Section 21 of Article 4 of the Constitution. The court said: "If appellant's premises are correct, this case must necessarily be reversed." The court's conclusion could only have been arrived at upon the theory that an amendatory act, the title of which indicates a certain section of a law as the subject of amendment, must be limited in its operation to matters within the purview of that section.

It appears that the rule announced in Stiers et al. v. Mundyet al., supra, is inconsistent with and conflicts with the rule announced upon the same subject in the early Reed case and in the late Trautman case; that it is inconsistent with principles which have always and consistently controlled the decisions of this court in respect to legislative enactments, and that it is against the great weight of authority elsewhere. The statements in the other cases, which seem consistent with the rule laid down in the Stiers case, are too broad as general statements of the law, and should be treated as precedents only in cases where the factual situation is the same. Stiers et al. v. Mundy et al., in so far as it conflicts with the rule laid down in the principal opinion, is overruled.

Petition for rehearing denied.

NOTE. — Reported in 38 N.E.2d 995.