Dissenting Opinion.
Morris, C. J.— I think the circuit court erred in sustaining the demurrer to appellant’s answer. The petition for the reimprovement was filed under §62 of the highway act of 1905, as amended by the act.of March 15, 1913. Acts 1913 p. 914, §7711a Burns 1914. Neither before nor after the amendment of 1913 did said §62 contain express mention of the subject of rebuilding, or of reimprovement. By. an act approved March 14, 1913, purporting to amend said §62 of the highway act of 1905 (Acts 1913 p. 690, §7711 Burns 1914), express provision
*609was made for rebuilding of improved highways, but this act was held invalid in Metsker v. Whitsell (1913), 181 Ind. 126, 103 N. E. 1078. However, legislative intent may be shown by an invalid enactment. Board v. State, ex rel. (1916), 184 Ind. 418, 111 N. E. 417. The purpose of judicial construction of statutes is to ascertain the legislative intent, and when determined such purpose must be given effect.
It .often happens that legislatures in amendatory or supplemental enactments- attempt to construe and declare the scope and meaning of previous enactments. Such construction as to past transactions is not binding on the courts, but as to •future ones may be controlling. Lewis’ Southerland, Stat. Const. (2d ed.) §358; Dequindre v. Williams (1869), 31 Ind. 444, 450; McCleary v. Babcock (1907), 169 Ind. 228, 238, 82 N. E. 453; State, ex rel. v. Harrison (1888), 116 Ind. 300, 19 N. E. 146; Sedgwick, Stat. and Const. Laws 252; Endlich, Int. Stat. §365.
Previous to 1913, §62 of the highway act of 1905 was probably of doubtful meaning in regard to the question of' rebuilding improved roads, but, in my opinion, when the legislature of 1913 by the attempt to amend the section by its (invalid) act approved March 14, 1913, supra, made express provision for rebuilding, it thereby construed the existing law as forbidding such work. The amendment approved on the following day (March 15, 1913) and under which this petition was filed,* omits, like the original §62 adopted in 1905 any mention of rebuilding or reimprovement. Consequently, we have here, not the mere interpretation of the words of the' act of March 15, 1913, supra, but the interpretation of the act in the light of the construction *610placed on the original section by the same general assembly. I think the legislature did in effect construe the law and that such construction should govern here.
On March 11, 1915, the legislature again amended said §62, by which reimprovement is authorized. Acts 1915 p. 680. When that amendment was made the action here was pending in the court below, and because of the last proviso in the act, it did not affect or apply to pending actions, and consequently this case must be considered as though the legislature of 1915 had not acted on the subject. For the reasons stated, I am constrained to dissent from the majority opinion.
Note. — Reported in 112 N. E. 771.