Imágenes de páginas
PDF
EPUB

Robinson v. Rippey et al.

the fault is that of the law-makers, and the remedy is in their hands.

We are not unmindful of the general rule that where an act covers the whole subject-matter of the older law and contains provisions that can not be reconciled with it, a repeal will be implied; but, while keeping in mind the rule, we must also keep in mind the principle on which it rests, which is, that the enactment of the new statute covering the whole subject is an expression of an intention to repeal the old law. It is obvious that this reason fails where, as hei-e, there is a positive and unequivocal assertion that there is no intention to repeal the older statute, and where the reason of the rule fails the rule fails. In the face of the express and unequivocal assertion that it is not the intention to repeal any former law, no intention can be implied from the fact that the new statute covers the whole subject. It is difficult to conceive any logical ground upon which an implied intention can be made to rule and override an expressed one, and, certainly, that result can not be permitted where it can, without violating any legal principle or introducing any novel doctrine, be adjudged that the purpose of the new statute was to create a new system. In this case we can not declare that the act of 1885 repeals the former law without utterly disregarding the positive words of the statute and ignoring the familiar rule that repeals by implication are not favored, and that where both statutes may stand neither shall fall.

We can not concur in the view of appellant's counsel, that the act of 1885 is not complete. It is probably true that, detached from all other laws, written and unwritten, it is incomplete in the sense that it can not be practically administered, but it is not to be so detached; on the contrary, it is to be taken as part of one great and uniform system of law, and not as an isolated act, independent of all others. Humphries v. Davis, 100 Ind. 274 (284) (50 Am. R. 788); State v. Boswell, 104 Ind. 541 (545); Robertson v. State, ex Robinson v. Rippey el aL

rei, 109 Ind. 79 (87); Lutz v. City of Orawfordsville, 109 Ind. 466 (468).

No statute stands entirely alone, for, in interpreting and enforcing it, aid is obtained from the rules of the common law as well as from other statutes.

Mr. Bishop says: "Every statute, as just said, combines and operates with the entire law whereof it becomes a part." Bishop Written Laws, section 7.

It is universally true that every statute in some degree interfuses with the great body of the law of which it forms a part, for, if this were not so, the law would be not merely a mass "of codeless precedents," but a mass of disjointed fragments. Elaborate as our code of civil procedure is, and careful as were the efforts to make it cover the whole field of pleading and practice, resort, nevertheless, is often made to the common law in order to give it just effect. It is upon the great principle we have stated that it has been frequently held that in what are termed special proceedings aid is to be secured from the civil code. Evans v. Eoans, 105 Ind. 204; Bass v. Elliott, 105 Ind. 517; Burkett v. Holman, 104 Ind. «; Burkett v. Bowen, 104 Ind. 184; Powell v. Powell, 104 Ind. 18; Robertson v. State, ex rel., supra.

It is hardly too much to say, that no statute which applies to a general subject, and is to be enforced by judicial proceedings, is to be considered apart from all other laws, for, surely, no one statute of the character indicated can be reasonably deemed the sole repository of the law upon a general subject, governing all its phases and incidents. It would be unreasonable to presume that the Legislature meant to embody the law on such a subject in a single statute. It is, therefore, not a sufficient objection to the act of 1885 that it is not in itself complete and perfect in every part. An examination of the act will, however, disclose that it is far more full in detail and much more specific in its provisions than most statutes.

A repeal of the act of 1877 would lead to very disastrous Robinson v. Bippey et al.

consequences, for it would sweep away assessments made under it,-and leave many counties with heavy burdens, and suffer those who have reaped special benefits to escape payment of the tax imposed upon them in consideration of those benefits. This would result because of the settled rule that the repeal of a statute authorizing the levying of taxes or assessments destroys the lien of such taxes and assessments, unless there is a saving clause in the repealing statute; and in the statute now under immediate discussion there is no saving clause. Marion, etc., G. R. Co. v. Sleeth, 53 Ind. 35; Webb v. Brandywine, etc., T. P. Co., 55 Ind. 441; Gorley v. Sewell, supra. We do not believe the Legislature intended to sweep away all former uncollected assessments, and, for that reason, among others, declared that the former law was not repealed.

We have not examined the question presented by the appellee's contention that the act of 1885 is unconstitutional, for the case may be disposed of without deciding that question. We do not, therefore, decide anything upon that question, but concede, without deciding, that the act of 1885 is constitutional and valid.

It is contended by appellant's counsel that the board of commissioners had no jurisdiction of the subject-matter, for the reason that the petition was not signed by the requisite number of freeholders. But we think that there was such a petition as invoked the jurisdiction of the board, and that, although it may have been defective, still the proceedings are not void. The petition on its face does not reveal the absence of jurisdictional facts, and no objection was made to it before the board, so that we think the point now made is not maintainable. Stoddard v. Johnson, 75 Ind. 20; Coolman v. Fleming, 82 Ind. 117; Rutherford v. Davis, 95 Ind. 245; Forsythe v. Kreuter, 100 Ind. 27; Pickering v. State, etc., 106 Ind. 228, and cases cited p. 231; Lowe v. Ryan, 94 Ind. 450; Bradley v. City of Frankfort, 99 Ind. 421.

It is claimed that the proceedings are invalid because no Robinson v. Rippey et al.

bond was filed with the board as required by the act of 1877; but we find a bond in the transcript sent up from the commissioners' court, and, as that court assumed jurisdiction, the fair presumption is that the bond was properly filed. If, however, we were wrong in this, still the appellant is in no situation to here urge the point, for he made no objection before the commissioners, although he was in court. It is held in some of the cases referred to, and in many others, that a party must make objections in the commissioners' court in order to avail himself of them on appeal. Green v. Elliott, 86 Ind. 53; McKee v. Gould, 108 Ind. 107; Osborn v. Sutton, 108 Ind. 443, and cases cited.

The delay of the commissioners in taking action in the case did not oust their jurisdiction. As jurisdiction was once acquired, it remained until the final disposition of the case, although there may have been intervening errors or irregularities. Black v. Thomson, 107 Ind. 162; McMullen v. State, ex rel., 105 Ind. 334; Hobbs v. Board, etc., 103 Ind. 575.

The notice of the meeting of viewers was such as gave the appellant opportunity to be heard, and he, therefore, had his day in court; but if it were true that the notice was not sufficient, still, as he appeared, and, although other objections were urged, made no such objection as that here insisted on, he can not successfully make it now. JJpdegraff v. Palmer, 107 Ind. 181, and cases cited.

Judgment affirmed.

Filed May 23, 1887.

Holland, Guardian, v. Taylor et aL
No. 12,829.

Holland, Guardian, V. Taylor Et Al.

Lire Insurance.Mutual Benefit Associations.Members Take Notice of ByLaws.Certificate.Contract.— Mutual benefit associations are in the nature of mutual insurance companies, and persons who become members thereof are bound to take notice of the by-laws, the latter becoming a part of the contract the same as if written in the certificate.

Same.Change of Beneficiary.Provision of By-Laws.—The beneficiary in a certificate issued by a mutual benefit association, providing for a change of beneficiary, does not, during the life of the assured, have an indefeasible right in the contract or fund to be paid thereunder; but such beneficiary has an interest which can only be defeated by a change effected in the manner provided by the by-laws.

Same.Attempted Change of Beneficiary by Will.Guardian.Executors.Control of Fund.—Where the by-laws of a mutual benefit association, not a domestic corporation, provide for the payment of a sum of money to the dependents of a member, and fix definitely the manner of changing the beneficiary, upon the death of the assured, without making a change in the manner specified, the beneficiary named in the certificate becomes the absolute owner of the fund, unaffected by a will attempting to make a different disposition thereof, and, if the beneficiary is a minor under guardianship, the guardian is entitled to the possession and control of the money as against the assured's executors.

From the Marion Circuit Court.

C. Byfield and L. Howland, for appellant.
V. Carter, for appellees.

Zollars, C. J.—On the 25th day of -August, 1884, the Royal Arcanum, whose principal office and Supreme Council are in Boston, issued to Charles D. Taylor, of Indianapolis, a certificate in these words:

"Royal Arcanum Benefit Certificate. "This certificate is issued to Charles D. Taylor, a member of Hoosier Council No. 394, Royal Arcanum, located at Indianapolis, Ind., upon evidence received from said council that he is a contributor to the widows and orphans' benefit fund of this order, and upon condition that the statements made by him in his application for membership in said council, and the statements certified by him to the medical examiner,

« AnteriorContinuar »