Newbauer v. State , 200 Ind. 118 ( 1928 )

DISSENTING OPINION. I cannot agree with the holding of the prevailing opinion that there is an "irreconcilable conflict" between Acts 1925, ch. 48, § 9 and Acts 1925, ch. 213, § 40, and that the latter, in so far as there is a conflict, repeals the former.

The courts, without exception, state the general rule to be that where two acts are passed at the same session of the legislature upon the same subject-matter, the presumption against an implied repeal is especially strong, and that such acts should, even though seemingly contradictory, be construed together as one act to give effect to the provisions of each if practicable and consistent with good reason, rather than to infer that one destroys or abrogates the other; and to make one provision repeal the other by implication there must be such inconsistency, contradiction, repugnancy or conflict between them that they cannot be reconciled and made to stand together.

Acts 1925, ch. 48, § 9, concerning intoxicating liquors makes unlawful the operating by any person while under the influenceof intoxicating liquors of a motor vehicle upon any PUBLIChighway, and provides for a fine to which SHALL be added imprisonment, etc.

Acts 1925, ch. 213, § 40, regulating automobiles makes unlawful the operating by any person while under the influence ofintoxicating liquor OR NARCOTIC DRUGS of a motor vehicle uponANY highway and provides for a fine to which MAY be added imprisonment, etc.

These acts are upon the same subject-matter and I believe they are capable of being harmonized, and can stand effectively together. Thus if allegation and proof is made, as was done in the case at bar, that a drunken driver operated an automobile on any public highway he may be convicted and shall thereupon be fined and imprisoned under § 9, ch. 48, Acts 1925; and if allegation and proof is made that a drunken driver or one who is under the influence of narcotic drugs operated an automobile onany highway he may be convicted and fined and may be imprisoned under § 40, ch. 213, Acts 1925.

If it be considered that there is no difference between "any public highway" and "any highway," then a reasonable reconciliation of the two statutes, allowing both to stand, would be to hold that any person found guilty of driving an automobile while under the influence of intoxicating liquor SHALL be imprisoned under § 9 ch. 48, and that any person found guilty of driving an automobile while under the influence of narcoticdrugs MAY be imprisoned under § 40, ch. 213.

But if the two sections of these acts are in "irreconcilable conflict," the rule laid down by this court in Holle v.Drudge (1920), 190 Ind. 520, 129 N.E. 229, which is binding on us until it is overruled, would seem to require that § 9, ch. 48, be held to repeal § 40, ch. 213, Acts 1925, so far as any conflict exists, rather than that § 40, ch. 213, be held to repeal § 9, ch. 48, which holding is predicated upon several foreign cases cited in the opinion. It is a well-known rule that legislative acts speak from the time they become effective. Section 9, ch. 48, became effective April 25, 1925, while § 40, ch. 213, which declared an emergency, became effective March 14, 1925. In Holle v. Drudge, supra, as here, two acts were enacted at the same session of the legislature and in that case they were approved the same day. Chapter 152 (acts 1905) went into effect at once by reason of an emergency clause, while ch. 157 declared no emergency. This court said: "The latter act (ch. 157) having taken effect fifty days later than the other (ch. 152) would be deemed the latest expression of the legislative will, in so far, if at all, as there was an irreconcilable conflict between the two."