Imágenes de páginas
PDF
EPUB

Robinson r. Rippey et al.

of the court at special term, and the judgment rendered
thereon.

The judgment is affirmed, with costs.
Filed May 23, 1887.

111 112 111 308 111 411 11297 112 212 112 365 113 15 114 90 114 248 114 270 114 368 -116 381

No. 13,196.

ROBINSON v. RIPPEY ET AL.

[merged small][ocr errors][ocr errors]

STATUTE.— Repeal by Implication.Gravel Road Acts. - Separate Systems of

Procedure. -The gravel road law of March 3, 1877, was not repealed by the act of April 8, 1885, on the same subject; but an intention being manifested to not repeal the former act, two systems for the construction of gravel roads and the making and collection of assessments are

created. Deisner v. Simpson, 72 Ind. 435, distinguished. SAME.—Similarity of Provisions of Two Statutes.- Inconvenience.--If an inten

tion to construct two systems for the government of the same subject is manifested, the similarity in the provisions oi the two statutes, and the inconvenience worked thereby, are not suficient to constitute a

repeal of the earlier one by implication. SAME. --Later Act Covering Sume Subject- Matter.- When Former Act not

Repealed. The rule that where a later act covers the whole subjectmatter of a former one, and contains irreconcilable provisions, a repeal will be implied, fails where an intention not to repeal is manifested

and where both acts may stand. SAME.-Incompleteness of Act.- Construction. It is not a sufficient objection

to an act that it is not in itself complete in every part, for in interpreting and enforcing a statute it is not to be considered alone, but as part

of a system of law. Gravel ROAD.Petition.Signers to.Jurisdiction.Practice.- Where the

petition for the construction of a gravel road on its face does not disclose the absence of jurisdictional facts, and no objection is made to it before the board of commissioners, an objection that it is not signed by

the requisite number of freeholders is not maintainable on appeal. SAME.-Jurisdiction not Ousted by Deloy.- After jurisdiction has been once

acquired by the county commissioners, it is not ousted by mere delay

in taking action in the case. SAME.- Notice. - Appearance.—Where a party appears without making an

Robinson v. Rippey el al.

objection to the sufficiency of the notice, he can not make such objection on appeal.

From the Clinton Circuit Court.

T. F. Davidson, F. M. Dice and J. N. Sims, for appellant. S. 0. Bayless, W. H. Russell, J. V. Kent and J. W. Merritt, for appellees.

Elliott, J.—The controlling question in this case is whether the gravel road law of March 3d, 1877, was repealed by the act of April 8th, 1885. The latter act does not contain any repealing clause, but on the contrary, expressly asserts an intention not to repeal any former law, for in section 20 it is written: "This act is not intended to repeal any law now in force for the construction of gravel or macadamized roads." Acts of 1885, 162.

There are very material differences in the provisions of the two acts; in many respects they are inconsistent, while in others they are substantially the same. Each act taken in itself constitutes a complete scheme or system for the construction of gravel roads, and for the method of procedure in making and collecting assessments.

The question presented is a very perplexing one, but, after the most careful study we have been able to give it, we have reached the conclusion that it was the intention of the Legislature to create two systems, and not to repeal the former law.

The fact that both of the statutes are directed to the attainment of the same end does not warrant the conclusion that the later repeals the former. Statutes constructing two systems for the government of the same subject may both stand. Beats v. Hale, 4 How. 37; Wood v. United States, 16 Pet. 342, 363; Daviess v. Fairbairn, 3 How. 636; Raudebaugh v. Shelley, 6 O. S. 307.

Mr. Bishop thus states the rule: "Two or more separate laws may establish the same right, or provide redress for the Vol. 111.—8

Robinson v. Rippey cl al.

same wrong. And the person seeking to enforce the right or avenge the wrong may proceed on the law he chooses."' Bishop Written Laws, section 163c/.

In the legislation upon the subject of drainage we have an example of the creation of two distinct schemes for thc^ attainment of the same end, and these statutes have been sustained and enforced. Lipes v. Hand, 104 Ind. 503; Shan? v. State, etc., 97 Ind. 23; Buchanan v. Rader, 97 Ind. 605; Crist v. Slate, ex rel., 97 Ind. 389; Meranda v. Spurlin, 100 Ind. 380. There is, therefore, no intrinsic difficulty in maintaining the theory that two systems were created by the Legislature, and the fact that the statutes relate to the same subject, and seek the same end, does not necessarily require it to be held that the later supersedes the earlier.

It does not follow that because two statutes contain similar provisions the earlier is abrogated, for, if the intention to construct two systems is manifested, the similarity in the provisions of the two statutes will not supply a valid reason for declaring the earlier to be repealed by implication. The principle which controls this phase of the question was decided in Powers v. Shepard, 48 N. Y. 540, for, as the reporter's head-note states, it was there held that "The re-enactment of certain of the sections of one act, in a subsequent one providing for a different scheme, is not a repeal by implication of those sections in the first act." Our own cases give a substantial recognition to this doctrine. Cheezem v. State, 2 Ind. 149; Martindale v. Martindale, 10 Ind. 566; Cordell v. State, 22 Ind. 1; Gorley v. Sewell, 77 Ind. 316 (319).

It may, perhaps, be true that confusion will result from framing two systems for the government of one subject, and that it is an unwise exercise of power; but the wisdom or expediency of a statute is a question for the Legislature, and not for the court. Eastman v. State, 109 Ind. 278. The courts can do no more than determine the validity of the statute, and, having adjudged it valid, ascertain and enforce Robinson r. Rippey el aL

the legislative intention; they can not, as Judge Cooley says, run a race of expediency with the Legislature. Nor will mere inconvenience, worked by the similarity of two statutes, justify the courts in declaring that the earlier is impliedly repealed by the later. Waldo v. Bell, 13 La. Ann. 329; Milcliell v. Duncan, 7 Fla. 13; Raudebaugh v. Shelley, supra; State v. Berry, 12 Iowa, 58; Wilson v. Shorick, 21 Iowa, 332.

The addition to an existing system does not necessarily imply its abrogation. In discussing this subject the Supreme Court of the United States said: "It is true that exercise of appellate jurisdiction, under the act of 1789, was less convenient than under the act of 1867, but the provision of a new and more convenient mode of its exercise does not necessarily take away the old; and that this effect was not intended is indicated by the fact that the authority conferred by the new act is expressly declared to be 'in addition' to the authority conferred by the former acts. Addition is not substitution." Ex parte Yerger, 8 Wall. 85 (105).

lu the case before us, the Legislature declares that the former act is not repealed, and, in the face of that declaration, we can no more say, than could the court in the case from which we have quoted say of the statute then under discussion, that the later act is a substitute for the earlier.

Repeals by implication are not favored. On this subject the Supreme Court of the United States said: "They are seldom admitted except on the ground of repugnancy; and Dever, we think, when the former can stand together with the new act." Ex parte Yerger, supra.

If the act of 1885 was silent as to the legislative intent, there would even then be some doubt, under the familiar doctrine stated in the case referred to, whether it would not he the duty of the courts to adjudge that the former statute was not repealed; but, however this may be, in the statute before us there is a broad and express assertion that it was not the intention to repeal any former laws, and we can not regard that assertion as ineffective and meaningless. We Robinson v. Rippcy ct al.

must adjudge that two systems were created, and, as was done in the case cited, hold that the two statutes may stand together.

In Tyson v. Postlethwaile, 13 111. 727, it was held that a statute is not repealed by implication where the Legislature had no intention to repeal it, and this statement of the law was approved in Blain v. Bailey, 25 Ind. 165. In this instance the legislative declaration of intention is as strong and plain as words could make it, and the courts have no right to disregard the intention so plainly and strongly stated, but they must, if there is any way of doing so, give effect to that intention, and the way in which it can be done is to hold, as we do hold, that two systems were created by the two statutes. If the Legislature should, by plain and imperative words in a later act, repeal an earlier one, it may be that a declaration of an intention not to repeal would be fruitless in the event that there was no possible way of maintaining both of the statutes. Bishop Written Laws, section 41. But there is here a legal way—a way both possible and practicable, and neither unusual nor unreasonable—in which the two statutes may be upheld, and that is, by adjudging that two different systems were created. The case of Deisner v. Simpson, 72 Ind. 435, is to be discriminated from the present, for the reason that, in that case, there was no possible way in which to give effect to the formal declaration of intention; while here the way is open, because it can be adjudged, both on principle and authority, that the Legislature has power to create two systems, and that it has done so. In this case there are two distinct systems, each complete in all its parts and capable of practical enforcement; for the frame of the petition, the parties, and the character of the notice, will inform the court of the method of procedure adopted, and apprise it of the statute under which the petitioners have elected to proceed. Possibly, as we have already suggested, confusion and evil may result, although this is by no means a necessary consequence; but if. it were,

« AnteriorContinuar »