Boring v. State ex rel. Jackson

Concurring Opinion.

Hackney, J.

The question presented by the record is as to the constitutional validity of the act of the General *650Assembly, passed March 9, 1895 (Acts 1895, p. 208). The general school law of March 6, 1865, in section 33 thereof, provided for the selection of a school examiner (Acts 1865, p. 13). In 1873 that section of the act of 1865 was amended and supplemental sections were added to said act (Acts 1873, p. 75, section 2). By that amendment the office of county superintendent was substituted for that of school examiner, and appointments to that office were provided for. By the act of 1895 it was attempted to change the time for the appointment to said office, and the act was entitled as follows: “An act to amend section 33 of an act entitled ‘An act to provide for a general system of common schools, the officers thereof, and their respective powers and duties, and matters properly connected therewith, and prescribing the fees for certain officers therein named, and for the establishment and regulation of township libraries, and to repeal all laws inconsistent therewith, providing penalties therein prescribed.’ Approved March 6,1865, and added supplemental sections thereto, approved March 8, 1873, being section 4424 of the Revised Statutes of 1881, and declaring an emergency.”

The words italicized constitute the title to the act of 1865. If we consider, in connection with the preceding language of the title, the words “and added supplemental sections thereto, approved March 8, 1873,” as a part of the title to the act which it was intended to amend, we are met with the fact that no act of 1873 bears a title in the words so connected. There are two acts of March 8, 1873, which amend the act of 1865, and add supplemental sections thereto. (See Acts 1873, p. 68; Acts 1873, p. 75.) The titles of the two acts of 1873 are' identical, and aside from the references to section 33,. and to R. S. 1881, section 4424, the title of the act of 1895 would refer with like certainty to either. But *651besides the uncertainty arising from the likeness of the titles of the two acts of 1873, the title of the act of 1895 becomes more ambiguous when we recall the fact that its language omits from that of the title of either of the acts of 1873 the words: “An act to amend an act entitled,” and it substitutes the word “added” for the word “adding” as employed in each of the titles of 1873. As applied to either of the acts of 1873, the title of that of 1895, purporting to amend section 33, and the enacting clause, directing the amendment to “section 33 of the above entitled act,” we are confronted with an impassable barrier in the fact that the first of the acts of 1873 contains but fifteen sections, while the second contains but eleven.

If we accept the language of the title and that of the enacting clause as expressing an intention to amend section 33 of an act, the title of which is given, there is no escape from the conclusion that such act is that of 1865 since the title to no other act is given and since it is found that no other act to which reference could have been possible contained a “section 33.” But, as if to add confusion to the already existing ambiguities, the title includes the additional words, “being section 4424 of the Revised Statutes of 1881.” Can these words be employed to give direction to the act which it was desired to amend and by them to determine that an intention which we do find expressed in the title and in the enacting clause shall not prevail? This question has been answered in the negative by the case of Feibleman v. State, ex rel., 98 Ind. 516, where the amendatory act was, by its title, directed to a section of an act which had been previously amended, but it contained a further direction, to wit, “being section 1418, of the Revised Statutes,” which section of the statutes was from the act so previously amending the original act. It was held *652that the constitutional method of designating the act to be amended was by reference to its title and not by reference to a section of the revised statutes, that sections 19 and 21, article 4, of the constitution (R. S. 1894, sections 115, 117), require amendatory acts, like original acts, to express their subject in a title by uniform method and with freedom from looseness and uncertainty, and that this is accomplished by reference to the title of the act to be amended and never by reference to a section in the revised statutes. Besides the departure from the constitutional method of amending, it is a well known fact that revisions of the statute laws are not always by legislative authority or recognition, and many times laws are incorrectly copied into the revised editions. In this instance it will be seen that there are no less than four changes in the phraseology in the act of March 8, 1873, by the revisors, in carrying section 2 into the R. S. 1881, section 4424.

Returning, therefore, to the other portions of the act we find authority for the construction that the amendment was legally directed to section 33 of the act of 1865. Blakemore v. Dolan, 50 Ind. 194; Board, etc., v. Smith, 52 Ind. 420; State, ex rel., v. Harrison, 67 Ind. 71.

In Board, etc., v. Smith, supra, and in State, ex rel., v. Harrison, supra, construction was given to an act of March 9, 1875 (Acts 1875, p. 131), the title of which was as follows: “An act to amend sections thirty-three, thirty-seven and forty-three, and supplemental section six, of an act entitled ‘An act to provide,’” etc., continuing with the title of the act of March 6, 1865, to which we have referred, and concluding with the words “and adding supplemental sections thereto, approved March 8, 1873.”

It was expressly held that the amendment was directed to the act of 1865, and not to the amendatory act of 1873. *653When the act then in question is compared with that now in question it will be seen that, aside from the ambiguities of the act of 1895, to which we have referred, the questions presented in those cases and in this are identical.

In Blakemore v. Dolan, the decision involved attempted amendments to this act of 1865, and in one view of the present case is decisive of the question. There the fifth section of the act of 1865 had been amended in 1873 (Acts 1873, p. 68), and in 1875 (Acts Reg. Sess., 1875, p. 135) an act was passed, the title of which designated for amendment section 1 of said act of 1873, which had so amended section 5 of the original act, but it was enacted “that section 5 of the above recited act be amended,” etc.

In section 1 of the act of 1873 the amended section stood by the original section, number 5, as in the present case the amendatory section 2 attempts to amend the original section to stand as section 33. In that ease the second amendatory act was held to apply to the first act and not to the act of 1873. So we must hold in this case. The amendment having been directed to a law which had been superseded by an amendment, was void, the first amendment having taken the place of the original law. Hall v. Craig, 125 Ind. 523; Feibleman v. State, ex rel., 98 Ind. 516; McIntyre v. Marine, 93 Ind. 193; Brocaw v. Board, etc., 73 Ind. 543; State, ex rel., v. Harrison, supra; Ford v. Booker, 53 Ind. 395; Board, etc., v. Smith, supra; Blakemore v. Dolan, supra; Longlois v. Longlois, 48 Ind. 60; Board, etc., v. Markle, 46 Ind. 96; Draper v. Failey, 33 Ind. 465.

If we should deny the correctness of the construction made in State, ex rel., v. Harrison and Board, etc., v. Smith, thereby overruling those cases, and should accept the contention that the amendment was directed to the *654first amending act and not to the original act, we would but the more certainly condemn the act of 1895 by holding the act of 1873 to have been superseded by that of 1875, which attempted to amend said section 33 of the act of 1865.

Filed Aug. 30, 1895.

Whether treated as an attempted amendment of the act of 1865 or by the constitutional rule for the amendment of laws, as clearly pointed out in Feibleman v. State, ex rel., supra, or from a duty to identify with reasonable certainty the act to be amended, the act of 1895, in my opinion, is invalid.