Lindsay v. Lindsay

On Petition for a Rehearing.

Osborn, J.

We are requested to grant a rehearing in this case, that the cases of Leard v. Leard, 30 Ind. 171, Nebeker v. Rhoads, 30 Ind. 330, and DeMoss v. Newton, 31 Ind. 219, may be reconsidered and overruled.

Langdon v. Applegate, 5 Ind. 327, was decided at the November term, 1854. It was followed and adhered to by many decisions, and, without legislation, rights of property would have been disturbed by overruling it. The rule established by those cases was regarded as fixed and settled, and so continued until the decision in the case of The Greencastle, etc., Turnpike Co. v. The State, ex rel. Malot, 28 Ind. 382, at the November term, 1867, when the rule was changed. *287and Langdon v. Applegate, and all the cases following it, were overruled. It is quite likely that the legislature had knowledge before that opinion was delivered, that Lang-don v. Applegate would be overruled, and for the purpose of averting the consequences, which would otherwise result from such a ruling, passed the act of March 9th, 1867. The object of the legislature clearly appears on the face of the act. The constitutionality of that act was deliberately sustained in Leard v. Leard, 30 Ind. 171, which was .followed by Nebeker v. Rhoads, 30 Ind. 330, and DeMoss v. Newton, 31 Ind. 219. It was cited and recognized as authority in Pierce v. Pierce, 46 Ind. 86.

If we doubted the correctness of the decisions cited, we .should be unwilling to overrule them. They have become a rule of property in this State, and to overrule them would -disturb titles to real estate, acquired by purchase on the faith of, and in reliance upon, the rule thus established. We should be unwilling to make a decision involving such con.sequences, except for very convincing reasons. Blackstone lays it down as an established rule, to abide by former precedents, when the same point comes again into controversy, unless flatly absurd. 1 Bl. Com. 70, 71.

Public confidence in the decisions of1 courts rests in a great measure in their adherence to decided cases. Chancellor Kent, in his commentaries, 1 Kent 476, says:

“The community have a right to regard it” (a decision of the court) “as a just declaration or exposition of the law, and to regulate their actions and contracts by it. * * *

■ “ If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a' court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law.”

To the same effect are Bellows v. Parsons, 13 N. H. 256; *288Taylor v. French, 19 Vt. 49; Boon v. Bowers, 30 Miss. 246; Emerson v. Atwater, 7 Mich. 12; Goodell v. Jackson, 20 Johns. 693, 722; Day v. Munson, 14 Ohio St. 488; Loeb v. Mathis, 37 Ind. 306, 312; Harrow v. Myers, 29 Ind. 469; Carver v. Louthain, 38 Ind. 530, 538; Tinder v. The Duck Pond Ditching Association, 38 Ind. 555; Stanford v. Stanford, 42 Ind. 485, 489; Grubbs v. The State, 24 Ind. 295, and numerous other cases.

In the case last cited, it is said on page 296: “This principle has so often received the sanction of appellate courts, that it has become a maxim for their guidance, and it is especially important that it should not be forgotten here, where the judges hold for short terms, and where, unfortunately, the entire court may be changed at once.”

/ We might not be willing to go to the extent of some of the-authorities cited. We do mean to hold, however, that when a court of appeals of the last resort has, by its decisions, established a rule of property under which rights have been acquired as in this case, an adherence to such decisons by the same court becomes a duty, except for the most convincing and overwhelming reasons.

It is contended that the common law rule, that the repeal of a repealing act revives the act repealed, is no longer in force in this State, because the constitution has abrogated it.

We think the counsel are mistaken. The old act did not come into force again by re-enactment. It was simply revived. It was repealed or annulled during the pleasure of the law-making power.

Whilst the repealing act remained in force, the original statute had no more force than if it had never existed. It was annulled; but when the repealing act was repealed, the act repealed was left in force again. The rule is very ancient and uniform. 1 Bl. Com. 90; 1 Kent Com. 465; Brinkley v. Swicegood, 65 N. C. 626; Wheeler v. Roberts, 7 Cow. 536; Smith Com. on Const. 909; Dwar. Stat. 676; Sedgw. Stat. Law, 137; The Bishops' Case, 12 Co. Rep. 7; Commonwealth *289v. Mott, 21 Pick. 492, 502; Commonwealth v. Churchill, 2 Met. 118; Hastings v. Aiken, 1 Gray, 163; Doe v. Naylor, 2 Blackf. 32.

The Bishops' Case, supra, lays down the rule thus :

“Yet true it is, that when an act of repeal is repealed, the first act, as hath been said, stands in force, and is implicite revived.”

In Hastings v. Aiken, supra, it was held that the repeal of a repealing statute revived the original act, even when the original statute was repealed by implication only. It was said that there was no “ sufficient reason for taking a distinct tion between the cases of a repeal of a later statute directly repealing a former one, and that of a repeal of a later statute repealing the former by implication. In both cases, the repealing stathte being repealed, the former statute remains.” A repeal by implication is in obedience to the legislative will as manifested by the act. It must appear to have been the intention of the legislature that the former act, or some part of it, should have been repealed; and that intention must appear in the later act.

When such intention is thus manifested, it is equally effectual as a repealing act as if done directly, Tyson v. Postlethwaite, 13 Ill. 727; The Water Works Co. v. Burkhart, 41 Ind. 364, 381.

The petition for a rehearing is overruled.