DISSENTING OPINION. I agree with the majority opinion as to the award to the appellant Marthella F. Denning, but I cannot concur in the opinion as to the dependent child, for the following reasons: The Indiana Workmen's Compensation Act which was enacted in 1929 (Acts 1929 p. 536), insofar as § 38 thereof is concerned, was an exact re-enactment of the said section as it was adopted in 1919, see Acts 1919 p. 158, and in the meantime there had been no change made in the section. During that 10-year period of time, three of the four decisions of this court which the present opinion overrules had been handed down. Each of said opinions placed a construction upon clause "d" of said § 38, contrary to the construction now placed upon it by the majority opinion. The first case overruled is Stephens v. Stephens (1921),76 Ind. App. 687, 132 N.E. 747, decided in 1921, and said clause "d" was therein specifically construed. The second case overruled isWestern Indiana Gravel Co. v. Erwin, Gdn. (1925),84 Ind. App. 26, 149 N.E. 185, decided in 1925. Here again, said clause "d" is specifically construed. The third case overruled isJohnson v. Lewis (1928), 88 Ind. App. 32, 163 N.E. 26, decided in 1928. In this case, said clause "d" is set out in full and construed adversely to the majority opinion. The fourth case overruled is Advance-Rumley Co. v. Freestone (1929),89 Ind. App. 653, 167 N.E. 377, decided at the May Term 1929, and the opinion filed July 2, 1929, and modified September 13, 1929. This case was decided after the Acts of 1929 became effective. Here again said clause "d" was before the court.
It will be thus seen that three times between 1919, when said clause "d" of § 38 was first enacted, and the time when it was re-enacted verbatim in 1929, it had been before this court and had received a construction *Page 313 each time contrary to the construction now placed upon said clause by the majority opinion in the instant case.
I understand the law to be as stated in McIntyre v. State (1908), 170 Ind. 163, 83 N.E. 1005, as follows: "It has been held that, when a clause or provision of a constitution or statute has been readopted after the same has been construed by the courts of such state, it will be concluded that it was adopted with the interpretation and construction which said courts had enunciated." Again, in Board, etc., v. Conner (1900),155 Ind. 484, 58 N.E. 828, we find the following language: "It is a settled rule of statutory construction that when a statute or a part of a statute has been construed by the courts of the State and the same is substantially re-enacted, the legislature adopts such construction, unless the contrary is clearly shown by the language of the act," citing authorities. See, also, Fesler,Auditor, v. Bosson (1920), 189 Ind. 484, 128 N.E. 145; Ward v. State (1919), 188 Ind. 606, 125 N.E. 397. In 2 Lewis' Sutherland, Statutory Construction, § 403, we find the following language: "In the interpretation of re-enacted statutes the court will follow the construction which they received when previously in force. The legislature will be presumed to know the effect which such statutes originally had, and by re-enactment to intend that they should again have the same effect. . . . It is not necessary that a statute should be re-enacted in identical words in order that the rule may apply. It is sufficient if it is re-enacted in substantially the same words. . . . The rule has been held to apply to the re-enactment of a statute which has received a practical construction on the part of those who are called upon to execute it." Numerous cases are cited in the section above quoted from, showing that the rule is almost universally recognized. See, also, Endlich, Interpretation of Statutes §§ 367-369. *Page 314
It seems clear, under the authorities cited, that the Legislature, when it re-enacted the Indiana Workmen's Compensation Act in 1929, adopted the construction of the act that had been given to it by this court in the cases overruled by the majority opinion, and, having done so, this court is not now in a position to announce a contrary construction to the one adopted by the Legislature. To do so would amount, in effect, to legislating by the court on the subject.
Neal, J., concurs in above.