State ex rel. Pennsylvania Railroad v. Iroquois Conservancy District Court

Concurring Opinion

Emmert, J.

(Concurring Opinion)

The title of the act under attack is “AN ACT to prevent floods, to protect cities, towns, farms and highways from inundation, to conserve water for beneficial uses, and to authorize the organization of drainage and conservancy districts, and declaring an emergency.” Chapter 239, Acts 1947. It is not contended that the title contains two subjects, but only that the Conservancy District Court is without the title.

“Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” Section 19 of Article 4, Constitution of Indiana. Thus, the major premise for solving the constitutional problem here presented becomes, the title must state but one subject, but the body of the act may contain any matter properly connected with the subject.

The cases do not hold that a short general title offends §19 of Article 4 of the Constitution. “Titles expressed in general language not only give more adequate warning concerning subject matter, but likewise reflect more satisfactorily the policy involved in the statute.” 2 Sutherland, Statutory Construction (Horack’s 3rd Ed.) §4803, p. 345. If we are to hold the general title of the Conservancy Act of Indiana invalid, by implication we overrule a number of well decided cases holding other *370general titles constitutional, and cast a cloud of constitutional doubts over many acts with general titles whose constitutionality has always been assumed since the early cases of this court.

It is well settled that whenever the constitutionality of the title of an act is put in issue, this court will adopt a very liberal construction in order to hold the title constitutional. Ennis v. State Highway Comm. of Indiana (1952), 231 Ind. 311, 317, 108 N. E. 2d 687; State ex rel. Taylor v. Greene Circuit Court (1945), 223 Ind. 562, 567, 568, 63 N. E. 2d 287; State ex rel. Devening v. Bartholomew (1911), 176 Ind. 182, 188, 95 N. E. 417; Ule v. State (1935), 208 Ind. 255, 194 N. E. 140, 101 A. L. R. 903.

The Constitution never intended the title should be an index or an abstract of the act. State v. Coleman (1949), 227 Ind. 161, 84 N. E. 2d 709. As is well stated by this court in the leading case of Albert v. Milk Control Board of Indiana (1936), 210 Ind. 283, 288, 200 N. E. 688, “the purpose of the section is to prevent surprise or fraud in the legislature by means of a provision or provisions in a bill of which the title gave no information and to- apprise the people of the subject of legislation under consideration. Crabbs v. State (1923), 193 Ind. 248, 139 N. E. 180.....It has also been held by this court that where the title relates to a subject which is broad enough to make it possible to comprehend different matters, which might or might not be included in the subject as means to a given end, courts will solve doubtful questions as to the relation of a particular matter to the subject in favor of the legislation. State ex rel. v. Board (1906), 166 Ind. 162, 76 N. E. 986.”

Nor can any valid constitutional objection- be raised because the title does not index the means or instrumentalities or machinery by which the general objects *371and purposes already expressed are to- be accomplished. “The means or instrumentalities through which the object of a statute is to be effected are necessary incidents, and need' not be specifically set out in the title. It is difficult to see how anything could be more germane to a legislative purpose than the methods adopted to carry out the purpose. Certainly it could not be required that every means appropriate to the accomplishment of the object of one statute should be made the separate subject of another act.” 1 Sutherland, Statutory Construction (Horack’s 3rd Ed.) §1718, pp. 310, 311. (Italics added.) This rule was also noted in Albert v. Milk Control Board of Indiana (1936), 210 Ind. 283, 289, 200 N. E. 688, supra, by the following reasoning: “It has been said- that .the word ‘subject’ in said section indicates the thing about which the legislation is had, and the word ‘matters’ the incident or secondary things necessary to provide for its complete enforcement. Board v. Scanlan (1912), 178 Ind. 142, 98 N. E. 801. The legislature of 1911 passed an act entitled, ‘An act concerning intoxicating liquors.’ It was held in the foregoing case that this title was sufficient to embrace all other matters for the’ enforcement of the act. Other illustrations are: ‘An act concerning highways,’ Smith v. Board (1910), 173 Ind. 364, 90 N. E. 881; ‘An act concerning drainage,’ Thorn v. Silver (1910), 174 Ind. 504, 89 N. E. 943, 92 N. E. 161, 94 N. E. 753; ‘An act regulating,descents and the apportionment of estates,’ Stiers v. Mundy (1910), 174 Ind. 651, 92 N. E. 374.”

In Ross v. Davis (1884), 97 Ind. 79, 85, this court held the drainage act entitled “An act concerning drainage,” was broad enough to embrace provisions for the appointment of a board of drainage commissioners.

In State v. Gerhardt (1896), 145 Ind. 439, 459, 44 N. E. 469, 33 L. R. A. 313, this court held the act en*372titled “The better regulation and restriction of the sale of intoxicating liquors,” properly embraced (1) penalties for its violation, (2) provisions for its enforcement, (3) provision for remonstrances against licenses, and (4) conferred jurisdiction upon certain courts for the violation of this and other acts upon the subject of selling intoxicating liquors. See also Hingle v. State (1865), 24 Ind. 28.

More recently in Carey v. State ex rel. Dept. of Fin. Inst. (1938), 213 Ind. 181, 185, 12 N. E. 2d 131, it was objected that the title to our Financial Institutions Act, to-wit: “An Act concerning financial institutions,” was too limited to embrace the creation of the Department of Financial Institutions. The court there said, “There is no merit in this contention. The title is broad enough to cover all matters connected with financial institutions and their regulation and control. Board of Com’rs, etc. v. Scanlan (1912), 178 Ind. 142, 98 N. E. 801; State ex rel. Test v. Steinwedel et al. (1932), 203 Ind. 457, 180 N. E. 865.” There is no logical difference as far as titles are concerned between the creation of a new commission and a new court of limited jurisdiction to enforce an act. Both are instrumentalities for the accomplishment of the general subject of the act.1

*373A decision most persuasive on the issue presented in this original action is Brandon v. State (1861), 16 Ind. 197, where the title of Chapter 22 of the 1859 Acts (page 60) was “AN ACT to amend the first section of An Act entitled ‘An Act to' authorize the formation of new counties, and to change county boundaries/ approved March 7, 1857, so as to allow new counties to be formed out of territories of less than four hundred square miles, and prescribing how the number of qualified voters shall be ascertained.” This court said “that a provision for the organization and sitting of Courts in new counties, is properly and intimately connected with the subject of the formation of such counties.” (Page 198.) Section 10 of the act could change the area of the judicial circuit, and we take judicial notice of the fact that judicial circuits often embraced several counties. Under the act the area of a judicial circuit could be either diminished or increased. The title of the act said nothing about courts or judicial circuits, yet it was properly held these were matters properly connected with the subject of the act.

Admittedly, there are many statements in the various cases of this court which are broad enough to require every title to contain an abstract of everything in the body of the act, as well as dicta in certain cases which contradict the reasoning and result of the particular decision under consideration, but the decisions themselves, with rare exceptions, whether they say so or not, apply the test of germaneness to the subject of the title.

“It has been repeatedly held by this court that this section aims only at titles narrower than the enactment. The unnecessary breadth of the title ordinarily is no *374objection to it. ‘The generality of a title is no objection to it so long at it is not made to cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.’ If the title covers a general subject it need not go further and mention all matters that are germane to the subject nor mention details. Crabbs v. State (1923), 193 Ind. 248, 254, 255, 139 N. E. 180.” State v. Griffin (1948), 226 Ind. 279, 284, 285, 79 N. E. 2d 537.

This court has no business in attempting to read the minds of the legislators or the public, and for us to say what they would reasonably expect to find in an act would require the title to be an index. A general subject matter in a title puts the legislators and public on notice that details germane to that subject matter may be in the body of the act, although not expressed in the title, and this is all the notice the Constitution requires. Section 19 of Article 4 only requires the subject to be expressed in the title, and “matters properly connected therewith” only limit what may be in the body of the act. The cases are too numerous to cite on this proposition, but they are to be found in the Indiana digests.

The prevention of floods can be assisted or accomplished by the conservation of water for beneficial uses, and since the provisions of the act could not execute themselves, some authority must be constituted to execute the objects and provisions of the act. The establishment of a conservancy court for the district is a convenient method of accomplishing the general expressed subject of the act.2

*375The constitutional prohibition against two subjects in the title of an act was designed to prevent legislative logrolling. When two clauses of a title are under attack for containing more than one subject, this court in solving the problem determines whether they are germane to each other, and if they are not, then the act is unconstitutional. Jackson, Secy. v. State ex rel. South Bend Motor Bus Co. (1924), 194 Ind. 248, 254, 142 N. E. 423. But if there is- a general clause in the title which fully states a general subject, which is then followed by other clauses in the title reciting particulars or details within the general subject and germane to it, the latter may be disregarded as surplusage which could well have been omitted. Western Union Telegraph Co. v. Braxtan (1905), 165 Ind. 165, 168, 74 N. E. 985; Kelley v. Finney (1935), 207 Ind. 557, 581, 194 N. E. 157.3

The majority opinion holds that the establishment of a Conservancy District Court is not germane to the first clause of the title, being “An Act to prevent floods ...” Therefore, under this holding the title could not have contained a clause establishing the court, or even a commission with drainage powers analogous to a board of *376county commissioners, for then it would have contained two subjects. If the majority opinion is good law, then the means, instrumentality, or legal machinery established to effectuate the general subject of an act will have to be provided by a separate act. “The constitutional requirement is that the subject or object of an act be single, and that it be expressed in the title. It does not require that the various means adopted to facilitate the legislative intent be articulated in the caption, or that each means be made the subject of a separate act. Indeed, to require this, would make legislation impossible.” 1 Sutherland, Statutory Construction (Horack’s 3rd Ed.) §1712, p. 306. Moreover, if the rule decided by the majority opinion is to be the law on titles to acts, there are a great number of important laws on the books which are unconstitutional because the means, agency, methods, instrumentalities or machinery is not stated in the title, nor could they be under the holding that they would not be germane to the general subject of the title.

Chapter 253 of the 1955 Acts, §3-2201, Burns’ 1946 Replacement (Supp.), now authorizes this court to issue writs of mandate and prohibition to “Conservancy District Courts,” but our decision in State ex rel. N. Y. C. R. R. v. Starke Cir. Ct. et al. (1952), 231 Ind. 360, 108 N. E. 2d 708, holding that a new court was created, is still the law of this jurisdiction. Under the decisions above discussed the statutory provisions concerning this Conservancy District Court are germane to the subject expressed in the title, and therefore, the act is not unconstitutional for being in violation of §19 of Article 4 of the Constitution.

The relators further contend that the creation of the Conservancy District Court under §27-1206, Burns’ 1948 Replacement [Acts 1947, ch. 239, §6, p. 902] et seq., *377is unconstitutional in that it provides for judges of circuit courts at the same time being judges of another court. The applicable sections of Article 7 of the Constitution provide as follows:

“The Circuit Courts shall each consist of one judge, and shall have such civil and criminal jurisdiction as may be prescribed by law.” Section 8.
“The State shall, from time to time, be divided into judicial .Circuits; and a Judge for each Circuit shall be elected by the voters thereof. He shall reside within the circuit, and shall hold his office for the term of six years, if he so long behave well.” Section 9.
“The General Assembly may provide, by law,'that the Judge of one Circuit may hold the Courts of another Circuit, in cases of necessity or convenience; and in case of temporary inability of any Judge, from sickness or other cause, to hold the Courts in his Circuit, provision may be made, by law, for holding such courts.” Section 10.

It requires no more than a casual examination of these sections to determine that there shall be but one judge of a circuit court who shall be elected by the voters of the circuit. By law the General Assembly can provide that the judge of one circuit may hold the courts of another circuit in cases of necessity or convenience. No provision is made for the judge of a circuit court holding the court or courts of a statutory judicial district, or any other kind of a statutory court. Section 10 provides for a case where the judge of one circuit would exercise all the jurisdiction of the judge of another circuit, such as would be exercised by a judge pro tempore, and it clearly has no application where a judge of a circuit court might be appointed a special judge in a particular matter in a statutory court.

The general rule is that a public officer takes his office cum onere and subject to having additional rights, *378powers and duties cast upon the office. However, when the Constitution specifically prescribes the courts over which a judge of a circuit court may exercise the jurisdiction of another court, by implication it excludes the imposition of the entire jurisdicton of another court.

“In construing constitutional provisions, a rule of general acceptance is ‘that which is expressed makes that which is silent to cease’. Gougar v. Timberlake (1897), 148 Ind. 38, 48, 46 N. E. 339, 37 L. R. A. 644, 62 Am. St. 487. When the constitution declares how a right may be exercised, it impliedly prohibits its exercise in some other way. Morris v. Powell (1890), 125 Ind. 281, 25 N. E. 221, 9 L. R. A. 326; Denny v. State, ex rel., supra. The rule is expressed by Cooley as follows: ‘When the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.’ Cooley, Const. Lim. (7th ed.) 64.’’State v. Patterson (1914), 181 Ind. 660, 664, 665, 105 N. E. 228. This rule of construction was followed in Morris v. Powell (1890), 125 Ind. 281, 292, 25 N. E. 221; Denney, Clerk v. State ex rel. Basler (1896), 144 Ind. 503, 512, 42 N. E. 929; Gougar v. Timberlake (1897), 148 Ind. 38, 48, 46 N. E. 339, 37 L. R. A. 644; Ellingham v. Dye (1912), 178 Ind. 336, 374, 99 N. E. 1, 99 N. E. 29; Bd. of Election Commissioners v. Knight (1917), 187 Ind. 108, 114, 115, 117 N. E. 565, 567; Robinson v. Moser (1931), 203 Ind. 66, 179 N. E. 270; State v. Dearth (1929), 201 Ind. 1, 12, 164 N. E. 489.

If we are to hold the General Assembly could create a Conservancy District Court consisting of all the circuit court judges of the circuits of the conservancy district, it would logically follow that the General As*379sembly could create a highway district court, a sewage disposal district court, a hospital district court, a civil disaster district court, an oil and gas district court, a toll road district court, an aviation district court, a park district court, and just about any other kind of a district court for any exercise of the police power of the state, and make the judges of the circuit courts ex officio judges of such courts. This is not a case where there is a possibility of abuse of a constitutional power, but it is an example of a legislative attempt to create a court consisting of judges prohibited by the Constitution. It is not necessary to decide at this time whether such a statutory court could be created if the judges were appointed or selected in a different manner. Nor is it necessary to decide other contentions by the petitioners that the act is unconstitutional. Therefore, I concur in the result of the majority opinion.

Note. — Reported in 133 N. E. 2d 848.

In Marion, Bluffton and Eastern Traction Company v. Simmons (1913), 180 Ind. 289, 290, 291, the court held “An Act concerning municipal corporations” authorized as germane to the subject matter provisions to be made by the board of public works “for the construction or change of levees, watercourses, drains and sewers.”

“To say that a matter may not constitutionally find a place in an act, because it more logically belongs to a subject which is different from that which constitutes the principal burden of the act, or that it might itself properly constitute the subject of a separate act, is but to insist that but one subject, or matter, may be embodied in a single act. But the constitution does not so require. It authorizes one subject, and any number of matters, *373provided they have any natural or logical connection with each other in legislation.” Hingle v. State (1865), 24 Ind. 28, 31.

“The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act relating to that alone, would not only be unreasonable, but would actually render legislation im*375possible.” 1 Cooley, Constitutional Limitations (8th Ed.) pp. 296, 297.

“We realize that it is quite common with legislators in the framing of titles to bills, under promptings of extreme caution, to follow the general subject by a statement of particulars, or details — sometimes all, sometimes only in part. In such cases, if the subject is well stated, the specifications and details become surplusage, and of little consequences, for they neither invalidate the act, nor limit its application to any provision that is germane to the general subject expressed in the title, unless the language employed in the title clearly shows that it was the legislative intent to confine the act to the particulars specified. (Citing cases.)” Western Union Telegraph Co. v. Braxtan (1905), 165 Ind. 165, 168, 74 N. E. 985. Approved in Kelley v. Finney (1935), 207 Ind. 557, 581, 194 N. E. 157.