On Petition for Rehearing
Achor, J.Appellees assert that the majority opinion repudiates certain principles long established by this court, as follows:
“1. Legislative Intent: When a statute contains a clause repealing all parts of prior acts in conflict therewith, the Legislature’s clear recognition of existing conflict and the intent to supersede, which are reflected by that clause, should be given effect;
“2. Statutory Construction: A later specific act repeals those portions of a prior general act to the extent of any conflict; and
*254“3. Construction of Pleadings in Special Statutory Proceedings: In all special statutory proceedings, the complaint must specifically allege each of the statutory jurisdictional prerequisites or no jurisdiction is conferred on the reviewing court.”
We find no serious fault with statements of principles “1” and “2” nor do we consider that the opinion in this case has repudiated these principles. Our problem, however, does not involve the statement of these principles, but rather the effect of the application of these principles to the' facts involved. The general rule regarding the effect of express general repealing clauses has been stated as follows:
“An express general repealing clause to the effect that all inconsistent enactments are repealed, is in legal contemplation a nullity. Repeals must either be expressed or result by implication. A general repealing clause cannot be deemed an express repeal because it fails to identify or designate any act to be repealed. It cannot be determinative of an implied repeal for it does not declare any inconsistency but conversely, merely predicates a repeal upon the condition that a substantial conflict is found under application of the rules of implied repeals. If its inclusion is more than mere mechanical verbiage, it is more often a detriment than an aid to the establishment of a repeal, for such a clause is construed as an express limitation of the repeal to inconsistent acts.” Sutherland Statutory Construction [3rd Ed.], Vol. 1, §2013, pp. 466-468.
Appellees assert that the Acts of 1929 [§54-430, Burns’ 1951 Repl.] and 1933 [§54-203] are in clear conflict as related to the filing of appeals in all rate cases in that the earlier Act provides a limitation of 60 days for appeals, whereas the latter Act limits such proceedings to a period of 30 days. Therefore, appellees assert that the repealing clause *255of the latter act repeals the time limitation of the former-act.-Appellees are right to the extent, and only to the-extent, that the two Acts apply both to the same subject-mátt'ér and to the same parties. The former Act [§54-429-Jrin enumerating the parties to whom it was applicable-specifically named associations and corporations as'.such parties. However, the latter Act [§54-203] in enumerating the parties to whom the' Act applied clearly bttiitted associations and corporations. We must assume-that this omission was intentional and therefore that the repeal by conflict expressed in the latter Act was not intended to apply to these appellants, an association ánd á -corporation, who were specifically named in the former- Act and not included in the latter.
We next consider the third statement of principle above stated, by appellees, from which established principle appellees assert that this court, in its opinion, makes a serious departure. In support of their position, that in all statutory proceedings all jurisdictional facts must be specifically pleaded, appellees’ rely upon statements contained in several cases- decided by this court. Admittedly, there is no clear uniformity in the reported statements upon this proposition, therefore it seems necessary to review the cases and clarify this rule of pleading. Appellees first quote from the case of State ex rel. Ayer v. Ewing (1952), 231 Ind. 1, at page 14, 108 N. E. 2d 441, as follows:
“. . . in any special statutory proceedings whatever, all jurisdictional averments required by the statute under which the proceeding is based must be contained in the petition or the court in which .it -.is filed, as well as any court to which it may come on change of venue or appeal will be without jurisdiction in the case, except to enter an order dismissing the case.” (Our italics.)
*256And at page 11, swpra:
“It has been well stated by competent authority that ‘. . . impeachment proceedings are highly penal in their nature and generally governed by rules of law applicable to criminal causes, so that provisions of statutes and of the constitution on the subject of procedure therein are to be construed strictly. . . .’ 67 C. J. S., Officers — Impeachment, §68, p. 295, Cl. (c), Procedure, pp. 296, 297.”
However, it is to be noted that in the above impeachment proceedings, in which the rules of procedure in criminal cases are made to apply, the court merely states that all jurisdictional averments required by the statute must be present in the complaint. It does not state the degree of particularity with which facts must be alleged in all statutory proceedings.
Next appellees quote from the case of Touhey v. City of Decatur (1911), 175 Ind. 98, 102, 93 N. E. 540, 542, 32 L. R. A. (N. S.) 350, in which the court, in a statement not necessary to the decision, said:
“It is well settled that when any one seeks the benefit of a statute, or to enforce a statutory right or liability, he must, by allegation and proof, bring himself clearly within its provisions. ...” (Our italics.)
To like effect, appellees cite the case of Sherfey v. City of Brazil (1938), 213 Ind. 493, 504, 13 N. E. 2d 568, 573, in which the court stated, that it is essential for the pleader who wishes to secure the benefit of a statute to “bring himself clearly within its terms.” (Our italics.)
We believe these cases correctly state the rule. The question then is, with what particularity must jurisdictional facts be alleged in order to clearly bring a party within the provisions of the statute? It is appellees’ position that such jurisdictional facts must be alleged *257with such absolute exactitude as to exclude every possibility of facts to the contrary, and, in support of this position, they cite the following two cases. In the most recent case of State ex rel. Wever v. Reeves (1951), 229 Ind. 164, 96 N. E. 2d 268, cited by appellees, the court merely held that failure to state whether appellant brought the action in contest of election as a party-plaintiff or as a prospective party-defendant, as expressly required by statute,1 was jurisdictional. That case is of no help in deciding the issue in the case before us. In the earlier case of Martin v. Schulte (1932), 204 Ind. 431, 435, 182 N. E. 703, 705, cited by appellees, this court stated:
“Since appellant’s right to contest the nomination of appellee depends on statutory affirmance, he must assume the burden of the well-settled rule that one who seeks the benefit of a statute must, without the aid of any intendment, bring himself strictly within its spirit as well as its letter. Board v. Jarnecke (1905), 164 Ind. 658, 664, 74 N. E. 520; Barker v. State (1919), 188 Ind. 263, 267, 120 N. E. 593, and cases there cited; Alyea v. State (1926), 198 Ind. 364, 152 N. E. 801, 153 N. E. 775.” (Our italics.) .
The language in the above case, although it preceded the Sherfey case, supra, has not been subsequently quoted or relied upon. Nevertheless, because of the strong language which the case employs, it deserves our consideration. First, examination of the statement discloses that it was dicta — not necessary to decision in the case. The sole question in that case was whether nomination of a congressman could be contested under the state law under which the action was brought, or whether, as a matter of law, congress alone could contest the nomination and election. There was no ques*258tion as to the sufficiency of the allegation's of fact to bring the appellant within the terms of the statute. Secondly, an examination of the case of Board, etc. v. Jarnecke (1905), 164 Ind. 658, 664, 74 N. E. 520, 523, cited, as authority for the above statement in the Martin case,- swpra, .reveals that the court did quote a similar statement- from Sutherland Statutory Construction, §§392, 393.2 However, here again we.find that the statement attributed to Sutherland was neither necessary nor-was-it applied by the court in making its decision in the case. Rather, in deciding- the- Jarnecke case, siopra, the court stated the rule as follows:
“. . . The rule is well settled that where a party seeks to avail himself of a statutory remedy, he must bring himself substantially within the provisions of the act awarding such remedy. Harrison v. Stanton (1896), 146 Ind. 366, 370; Chicago, etc., R. Co. v. Barnes (1905) [164 Ind.], ante, 143.”
Continuing our examination into the history of the rule, we find that in the case of Harrison v. Stanton et al. (1896), 146 Ind. 366, 370-371, 45 N. E. 582, cited as authority in Jarnecke, supra, the rule was similarly stated as follows:
“. . . It is a general rule that a person asking a right or remedy conferred by the statute, must bring himself substantially within the provisions *259or requirements of the statute conferring such right. Goodwin v. Smith, 72 Ind. 113; Massey v. Dunlap [146 Ind.], ante, 350; Sutherland on Statutory Construction, Section 393.” (Our italics.)
From this summation of the decision of this court and the authority therein relied upon, we believe the rule to be that, in all special statutory proceedings the complaint must allege the jurisdictional facts required by the statute upon which the proceeding is based. In proceedings which are remedial in character, the form and substance of the allegation regarding jurisdictional facts must substantially meet the requirements of the statute so as to clearly bring the party invoking the statute within its ■ terms. To meet this requirement, the reasonable and ordinary inferences which flow from the facts pleaded may be considered to support the ultimate fact required by the statute.
We believe the original opinion correctly states the principles of law upon which the decision is based, and that the principles were properly applied to the facts presented.
Bobbitt and Landis, JJ., concur. Emmert, C. J., and Arterburn, J., dissent.Note. — Reported in 148 N. E. 2d 537.
Rehearing denied in 150 N. E. 2d 250.
. §§29-5401 — 29-5417, Burns’ 1949 Repl.
. “ ‘392. A statutory remedy or proceeding is confined to the very case provided for and extends to no other. It cannot be enlarged by construction, nor be made available or valid except on the statutory conditions, that is, by strictly following the directions. of the act. 393. A party seeking the benefit of such a statute must bring himself strictly not only within the spirit but' its letter; he can take nothing by intendment.’ ”
The above statement does not appear in Sutherland Stat. Constr. (1905 Ed.). The statement made in this (subsequent) edition is as, follows: “In statutory proceedings the-statute must be substantially complied with; every act required which is jurisdictional, or of the essence of the proceeding, or prescribed for the benefit of the party to be affected thereby, must be done; the requirement is mandatory.’’ §630, p. 1140.