Dissenting Opinion.
Jordan, J.I can not concur in the result reached in the opinion of the majority of this court, and adjudge that the statute in controversy is invalid. The law is assailed upon the alleged grounds that the legislative body neglected to duly observe the forms required by the constitution of this State, which are necessary to give validity to amendatory acts.
Section 19 of article 4 of the constitution provides: “Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.”
Section 21 of same article provides:
“No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth and published at full length. ”
It is evident that in the passage of the statute involved in the case at bar, the latter section of the constitution above cited was not violated, as no attempt was made to revise an act or amend a section by mere reference to its title. The section amended was set forth and published at length.
*655But it is contended by the learned counsel for appellee that the statute in question was an attempt upon the part of the Legislature to amend the original section 33 of the act of March 6, 1865, and that consequently the act resulted in amending this section, which had been amended by an act approved March 8, 1873, and was, therefore, not in existence. In my judgment this contention can not be sustained. Of course it is conceded as a settled principle of law that where a section of a statute has been amended it no longer exists in its original form, but is superseded by the section as amended.
The title of the act of 1895 reads 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 supplementary sections thereto, approved March 8, 1873, being section 4424 of the Revised Statutes of 1881, and declaring an emergency. ”
If it was not intended to amend section 33, as it existed by virtue of the amendment of 1873, and as it had been incorporated into section 4424, R. S. 1881, why did not the draughtsman of the bill of 1895 end its title after reciting that of the act of 1865? Why continue with the words, “and added supplementary sections thereto. Approved March 8, 1873, being section 4424 of the Revised Statutes of 1881?”
These words are in the title, and are there to serve a purpose, namely: to advertise that it was the intention to amend section 33 as amended by the act of March 8, 1873, and as it had been set forth and published in sec*656tion 4424 of the revision of 1881. Force and effect must be given to these words by courts. They can not be waved aside or discarded.
In Cooley Constitutional Limitations, pages 57 and 58, it is said:
"It is not to be supposed that any words have been employed without occasion or without intent, that they should have effect as part of the law. The rule applicable here is that effect is to be given if possible to the whole instrument, and to every section and clause.”
By giving the proper force and effect to these words, and to those employed in the enacting part of the act, to wit:
\"That section 38 of the above entitled act, being section 4424 of the Revised Statutes of 1881, be and the same is amended to read as follows, etc.”
It is apparent, I think, that the Legislature intended to, and did, amend section 33, as amended by the amendatory act of March 8, 1873, and that there was no intention or attempt to amend the original section 33 of the act of 1865; and that this legislative purpose was sufficiently advertised in the title of the act in question.
In the case of Bell v. Maish, 137 Ind. 226, on page 229 of the opinion, the court said:
"We think that a title stating that an act is an act to amend a given section of another act sufficiently advertises the purposes of the amendatory act, which is the chief object of the constitutional provision.”
If the object of the title is to advertise the purpose of the bill, it must be evident that every member of the last General Assembly of ordinary understanding was, by the title to the act in question, notified that its purpose was to amend section 33, as amended, and not the section as it originally existed. If any doubts had arisen in the minds of the assemblymen they would *657have been removed by the words, being section 4424 of the Revised Statutes of 1881, as used in the title, and also in the enacting clause of the statute. For, upon an examination, it would have been found that section 4424, R. S. 1881, was section 33 of the act of 1865, as amended. Much stress is placed by counsel for appellee upon the decision of Feibleman v. State, ex rel., 98 Ind. 516.
But that case is easily distinguished from the one now before the court. In the title of the act considered in the Feibleman case, it was declared to be an “act to amend section 1, etc., of an act approved June 9, 1852, being section 1418 of the revised statutes.” There was in no manner any reference to the amendatory act of 1867, and the enacting clause read:
“Be it enacted, etc., that section 1 of the above entitled act be amended to read as follows,” etc. Section 1418 of the revision being entirely omitted.
Hammond, J., in the opinion, on page 519, said:
“Our conclusion after careful consideration, is that the object of the act of 1883 was to amend the first section of the act of 1852. The reasons for this are apparent both in the title and body of the act of 1883. The title of the act of 1883 sets out verbatim the title of the act of 1852, giving the date of its approval, specifies that it is an act to amend the first section of said act of 1852, and makes no reference by quotation, date, or otherwise, to the amendatory act of 1867. And then, after the enacting clause, the first section of the act of 1883 provides, ‘that section 1 of the above entitled act’ (the act of 1852) ‘be amended to read as follows, etc.’ ”
The reasons for the conclusion reached in the above case, that the object of the act of 1883 was to amend the first section of the act of 1852, are stated by the court to be based upon the fact that the former act set out ver*658batim the title of the latter, and made “no reference by-quotation, date or otherwise, to the amendatory act of 1867.” But this objection can not be successfully urged against the title of the statute now in question for the reason that it does refer to the amendatory act of 1873, by the words “and added supplementary sections thereto, approved March 8, 1873, being section 4424, etc.” It is seen that the title of the act, after quoting a part of the amendatory act of 1873, which it proposed to amend, also referred to and gave the date of its approval, and then in order that all members of the Legislature and others concerned might be fully apprised of the purpose or object of the bill, the section of the revised statutes was given. This undoubtedly made the title certain to a common intent. It is-well settled that in the construction of statutes, as well as of contracts, “that which can be made certain, is certain.”
By an act of the General Assembly approved April 18, 1881 (Acts of 1881, page 605), provisions for the revision and publication of the statutes of this State were made. Section 3 of this act provided that the commissioners should annotate the contents of the volumes so as to show by proper reference the acts or sections, the time when they went into force, etc.
Section 4 provided that the volume should be known as “The Revised Statutes of 1881.” It therefore appears that both the title and the enacting clause of the act in controversy employed the legally authorized name by referring to the “Revised Statutes of 1881.” By an examination of section 4424, R. S. 1881, the authorized annotation will be found. At the head of this section are the words (“1875, page 75. In force March 8, 1873”). Following the number of the revised sectionare the words “county superintendent,” and the numerals “33.” By these annotations it clearly appears thatthis *659section, 4424, will be found on page 75 of the Acts of 1875, and that it went into force March 8, 1873, and that it is numbered section 33 in the statute with which it is connected. By turning to the acts of 1875, page 75, we find that section 33, of the act of 1865, was amended by section 2 of an act approved March 8, 1873, and that this section as amended by section 2 of this amendatory act is section 4424 of R. S. 1881. Here we find a fair illustration of the maxim above mentioned, “that which can be made certain, is certain.”
The conclusion, to my mind, is irresistible, that by considering the words used in the title in question, to wit: “Added supplementary sections thereto, approved March 8, 1873, being section 4424 of the Revised Statutes of 1881,” together with the body of the act, that the purpose of the act, namely, to amend section 33 as amended by the act of 1873, is apparent, and that this object was sufficiently advertised and made evident within the aim and spirit of the constitutional provision. The title and body of the act supplied the means, and all that was necessary was to make an examination in order to render the purpose of the act certain.
In the case of Shoemaker, Aud., v. Smith, 37 Ind. 122, (131), the court says: “There was no need of stating the date of the approval of the amended law. This is usually but not necessarily done, and the omission can be of no consequence if the law intended to be amended is pointed out with such reasonable certainty as to identify it.”
In the case of Clare v. State, 68 Ind. 17, the amendatory statute considered by this court recited, or declared, in its title, and also in its enacting clause, that it was intended to amend section 74, while in fact it was intended to and did amend section 36. This act was upheld.
*660Howk, C. J., speaking for the court, on page 25 of the opinion, said: “But we do not understand that this court is bound, in the interpretation and construction of a statute, to take the words used therein in their plain, exact and literal sense. On the contrary, the true rule is, and always has been, as recognized in many decisions of this court, to make the legislative intention in the enactment of the particular statute, the chief guide of the court in its interpretation and construction. If the object, purpose and intention of the Legislature, in the enactment of the particular statute, can be fairly ascertained and arrived at, then it is the duty of the court to overlook and disregard all apparent inaccuracies and mistakes in the mere verbiage or phraseology of the statute, and, if possible, to give force and effect to the evident reason, spirit and intention of the law. This, we think, is the true and only safe rule for the guidance of the courts in all statutory exposition and construction,, and, as such, it has been recognized and acted upon by this court, in a large number of its reported decisions.”
As said in Bush v. City of Indianapolis, 120 Ind. 476 (which decision supports our views): ‘ ‘The power of the courts to declare a statute unconstitutional is a high one, and is never exercised in doubtful cases. To doubt is to resolve in favor of the constitutionality of the law.”
An act of the Legislature is not to be declared unconstitutional unless it is clearly, palpably and plainly in conflict with the constitution. Henderson, Aud., v. State, ex rel., 137 Ind. 552.
It must be presumed that the General Assembly of 1895 constructively knew that section 33, as it originally stood, had been amended, and thereby had been superseded by section 33 as amended. By the means of the descriptive words employed in the title and act itself, actual knowledge was brought to that body of that fact. *661It can- not be presumed that the Legislature intended to enact an invalid statute.
Filed Aug. 30, 1895.It is well settled that a section of a law amended is incorporated into, and becomes a part of, the original act, and stands as and for the original section on and after the date of the taking effect of the amendatory law. The section, as amended, does not appear in section 4424, R. S. 1881, as section 2 of the amendatory act, but as section 33 of the act as amended.
While it may be admitted that the title of the act is not skillfully drafted, nevertheless this will not authorize a court to strike down a statute. If it did, many acts of the law-making power would meet with judicial condemnation.
With all due deference to the judgment of my associates, I am of the opinion that the validity of the statute ought to be sustained and the judgment below reversed.