Dissenting Opinion
Faulconer, J.Plaintiff filed a petition in the Superior Court of Marion County, Room No. 3, to mandate defendants to comply with House Enrolled Act No. 1818, passed by the General Assembly during its 1967 Session. Specifically the petition prayed that,
“[A]n order issue against Defendants, mandating them to administer and enforce the inheritance. tax laws of Indiana as they now exist including Acts of the General Assembly of Indiana, 1931, Chapter 75, Section 36, as amended by the 1967 General Assembly.
“Plaintiff further prays that an order issue against Defendants, enjoining them from continuing to apply the taxes levied and collected under the inheritancé tax law of Indiana according to the Acts of the General Assembly of Indiana, 1931, Chapter 75, Section 36, as it existed prior to its amendment by the 1967 Indiana General Assembly.”
The trial judge granted a temporary restraining order, without notice, hearing or bond. The Attorney General of Indiana on behalf of the defendants, prior to the hearing date set by the Superior Court of Marion County, filed a petition to transfer the cause to this court pursuant to ch. 7 of Acts 1965 (2nd Spec. Sess.). After hearing on the petition to transfer by this court, In Banc, we transferred the cause to this court and dissolved the restraining order.
The Attorney General, on behalf of the defendants, filed a demurrer to the complaint on the ground that it fails to state a cause of action. Subsequently we overruled the demurrer. Thereafter both parties filed separate motions for judgment on the pleadings.
The only question before us in this cause is whether House Enrolled Act No. 1818 became a law.
*75House Enrolled Act No. 1818, amended Acts 1931, ch. 75, § 36, p. 192, § 7-2436, Burns’ 1953 Replacement, and provided that inheritance tax funds should be distributed, 10% to the State and 90% to the Mass Transportation Authority of Marion County, plaintiff herein.
If the bill became law the relief prayed for in the petition should be granted. If it did not become law, judgment should be entered for the defendants.
The facts in this cause are undisputed and without conflict. The bill in question was duly passed in both Houses of the 95th General Assembly; duly signed by the respective officials of both the Senate and the House and taken to the Governor’s office on the last day of the 95th Session of the General Assembly with other bills, which office gave an unsigned receipt therefor. The Governor did not approve the bill by signing it and sending it to the office of the Secretary of State, nor did he send it to the office of the Secretary of State unsigned, nor did he return it with his objections thereto, as provided in Art. 5, § 14, of the Constitution of Indiana.
This bill was neither published nor distributed by the Secretary of State to the clerks of the Circuit Courts of the several counties of the State with other bills.
It is agreed by all concerned that the bill is still physically in the Governor’s office. Plaintiff contends that this bill became law after five days, pursuant to Art. 5, § 14, of the Constitution of Indiana, and defendants contend that it did not, citing the last sentence of Art. 5, § 14, supra, which reads as follows:
“But no bill shall be presented to the Governor, within two days next previous to the final adjournment of the General Assembly.”
This case is governed by State, ex rel. v. Fortieth Judicial Circuit (1931), 202 Ind. 354, 174 N. E. 423. The facts are *76strikingly similar and are set out at page 356 of 202 Ind., as follows:
“Senate bill No. 165 was passed by both houses and was properly signed by the presiding officer of each. On March 11, 1929, at 4:40 p.m., upon request of the Governor, the secretary of the senate delivered said bill to the office of the Attorney-General for his opinion touching the legality thereof. That thereafter, between 5 p.m. and 7 p.m., said senate bill No. 165 was, at the request of the Governor, delivered to the office of the Governor, and the Governor talked with various persons who were interested in said bill concerning the same.
“The final adjournment of the 76th session of the General Assembly occurred at 12 p.m. midnight March 11,1929.
“Said bill did not contain any emergency clause, neither was it published nor distributed to the clerks of the circuit courts of the several counties of the state, or declared by the Governor to be in effect as required by § 28, Art. 4, State Constitution, § 131 Burns’ 1926, and § 246 Burns’ 1926.
“Said Senate bill No. 165 was never approved by the Governor, neither was it returned with his objections. The bill was retained by the Governor and is still in his office.”
Further, the court, in holding that the bill did not become law stated at page 358 of 202 Ind. as follows:
“The bill here in question was presented, or attempted to be presented, to the Governor between 5 and 7 o’clock p.m. on the last day of the session. No official action was taken by him, neither was there any obligation imposed upon him to act, as the bill was not presented to him more than two days next previous to the final adjournment of the General Assembly. We, therefore, conclude that relatrix’ petition for an alternative writ of mandate is insufficient and respondants’ demurrer thereto should be sustained.”
Plaintiff points out that House Enrolled Act No. 1818 contained an emergency clause and, therefore, beeame law at the expiration of five days, and cites State ex rel. v. Grant Superior Court (1930), 202 Ind. 197, 211, 172 N. E. 897, wherein the court stated that Art. 4, § 28 of the Constitution *77of Indiana provides that “where an emergency shall be declared in the preamble or in the body of the law, it is unnecessary for it to become a law that it be published and circulated in the several counties of the State by authority”, and that “[tjhis section has been plainly interpreted and the bill will become a law at the expiration of the time given to the Governor by the Constitution to file the bill with the Secretary of State, together with his (the Governor’s) objections thereon, where the bill provides that an emergency exists for it to become effective upon its passage.” However, in State ex rel. v. Grant Superior Court, supra, the court determined that the bill was presented to the Governor on Saturday preceding the Monday the Legislature adjourned, and the court held that Sunday was not excluded in determining the days. Therefore, the Grant case is not authority for the proposition of plaintiff that the emergency clause made the law effective after the expiration of five days.
The emergency clause would not have made House Enrolled Act No. 1818, presented to the Governor during either of the last two days of the session and retained by him without any further action on his part, a law by mere lapse of time. Such a clause serves merely to make law, properly presented under Art. 5, § 14 of the Constitution of Indiana, effective without publication.
“The last sentence of the same section, the one under consideration, applies only to the General Assembly, and is in no way an inhibition to the Governor to receive a bill if sought to be presented to him by the General Assembly, but has to do only as an inhibition and a restraint of power upon the General Assembly.” State ex rel. v. Grant Superior Court, supra. (1930), 202 Ind. 197, 210, 172 N. E. 897.
To ignore the clear and plain language of the last sentence of Art. 5, § 14, supra, would be contrary to the well established fundamental rules of constitutional construction that no word or words shall be assumed to be mere surplusage.
*78I cannot agree that the decision of our Supreme Court in Hendricks, Secy., etc. v. State N. W. Crime Comm. (1964), 245 Ind. 43, 196 N. E. 2d 66, 2 Ind. Dec. 722, is authority for plaintiff’s position. A reading of the two majority and one dissenting opinions discloses that said case involved only an interpretation of that part of Art. 5, § 14 of the Indiana Constitution reading “unless the general adjournment shall prevent its return;” and the issue of presentation of a bill “within two days next previous to the final adjournment” was neither raised, briefed, argued or considered by the court. However said decision does indirectly support my position in the present case. In Judge Achor’s concurring opinion, at pages 54, 55 of 245 Ind. is the following language, “However, the Indiana constitution contains express and explicit provision that (except as to bills sent to the Governor during the last two days of the session) all bills passed by the Legislature and presented to the Governor but not signed by him must be returned to the Legislature for reconsideration.”
Again, at page 60 of 245 Ind. Judge Achor states, “furthermore, any bill which is presented to the Governor (except within the last two days of the session) must be returned to the next session of the Legislature for its action, notwithstanding the general adjournment thereof.”
For the reasons above set forth, it is my opinion that House Enrolled Act No. 1818 did not become law without the signature of the Governor because it was presented; or attempted to be presented, to the Governor within the two-day limitation as set forth in the last sentence of Art. 5, § 14 of the Constitution of Indiana.
Plaintiff’s motion for judgment therefore should be denied and defendants’ motion for judgment sustained.
Therefore, in my opinion, judgment should be entered for the defendants, with costs against the plaintiff.
*79Bierly and Prime, JJ., concur.
JOSEPH D. GEESLIN JR., CARLETON L. PHILLIPPI and DURWOOD STRANG, as members of State Board of Tax Commissioners of Indiana, RICHARD D. GREEN, as Inheritance Tax Administration Defendants.1
. On December 31, 1968, the date of the judgment in this case, the named defendants were the then incumbent officeholders and were named in their capacities as such officeholders, viz: Roger D. Branigin, as a Member of the Indiana Revenue Board; John P. Gallagher, Auditor of the State of Indiana, and as a Member of the Indiana Revenue Board; William L. Fortune, Commissioner of the Indiana Department of State Revenue; and Larry P. Mohr and Herbert C. Holmes, as Members of the State Board of Tax Commissioners of Indiana; and T. Michael 'Smith, as Inheritance Tax Administrator. This court takes judicial notice that these named defendants are no longer in office, and the court, on its own motion, has substituted the present incumbents in office as the nominal defendants.