Cheney v. State ex rel. Risk

• Citation: 74 N.E. 892,165 Ind. 121
• Decision Date: 09 June 1905
• Docket Number: No. 20,299.,20,299.
• Parties: CHENEY, Auditor, v. STATE ex rel. RISK.
• Court: Supreme Court of Indiana

165 Ind. 121

74 N.E. 892

CHENEY, Auditor,

v.STATE ex rel. RISK.

No. 20,299.

Supreme Court of Indiana.

June 9, 1905.

Appeal from Superior Court, Tippecanoe County; H. H. Vinton, Judge.

Mandamus by the state, on the relation of James K. Risk, against Harvey H. Cheney, to compel respondent, as county auditor, to publish in two newspapers certain lists of allowances. From a judgment awarding a peremptory writ, respondent appeals. Affirmed.

George D. Parks and C. M. Bright, for appellant. Stuart, Hammond & Simms and Thomas W. Field, for appellee.

GILLETT, J.

This was a proceeding by way of mandate. The question involved is whether it is the duty of the county auditor, under the act of March 9, 1903 (Acts 1903, p. 360, c. 207), to publish in two newspapers the lists of allowances which the act of March 4, 1899 (Acts 1899, p. 415, c. 186), required to be published in one newspaper, or, in other words, the question is whether the act of 1903 relates to such notices or statements.

Section 1 of the act of 1899 (omitting the enacting clause) is as follows: “That the auditor of each county in the state shall be required to publish in a newspaper of a general circulation in his county, within ten days after the adjournment of any term of circuit, superior, criminal or commissioners' court, all allowances made by the regular or special judges thereof, and by the board of county commissioners at each term of court at which any allowance is made. All allowances made by the judges of such courts and by the board of county commissioners, to whom made, and for what purpose. Provided, that the cost of printing thereof shall not exceed five cents for each allowance.” It is provided by section 1 of the act of 1903: “That in all cases wherein the auditors and treasurers of the several counties of this state are required by law to publish notices affecting county affairs in a public newspaper, said auditors and treasurers are hereby required to publish said notices as by the several statutes required in two leading newspapers published in their respective counties, representing the two political parties casting the highest number of votes in such counties respectfully [respectively] at the last preceding general election, if there shall be such newspapers published in said county.”

The Standard Dictionary defines the word “notice” thus: “Intelligence, by whatever means communicated; knowledge given or received; information; intimation; warning.” Anderson's Law Dictionary states that “‘notice,’ in its untechnical sense, is equivalent to information, intelligence, knowledge.” This court made use of like definitions in defining the word in White v. Fleming, 114 Ind. 560, 573, 16 N. E. 487. Section 240, Burns' Ann. St. 1901, provides, “Words and phrases shall be taken in their plain or ordinary and usual sense.” This court declared in Massey v. Dunlap, 146 Ind. 350, 357, 44 N. E. 641, that “one of the cardinal rules in the construction of statutes is that, where there is nothing in the act itself to indicate that a word or phrase is used in a particular or technical sense, it is to be taken or accepted in its ordinary or popular meaning.” See, also, Spaulding v. Harvey, 7 Ind. 429;Rourke v. Rourke, 8 Ind. 427. In this case the technical meaning of the word is such that the context of the statute forbids the view that it was used in that sense. We have not searched for borderland definitions of the word, but have referred to its plain and ordinary meaning. Bearing in mind that the obvious purpose in the requirement of the act of 1899 was to secure publicity concerning allowances, such a publication must be regarded as a notice. Indeed, the word as used in the act seems to be expanded, if that be possible, by the context, since the subject-matter of the enactment is notices required by law “affecting county affairs.” How it can be said that the publication of lists of allowances payable out of the county treasury, where such publications are made pursuant to law for the purpose indicated, are not “notices affecting county affairs,” we are unable to perceive.

Appellant's counsel argues that it appears that the Legislature did not refer in the act of 1903 to the publication of the list of allowances required to be made by the act of March 4, 1899, because that act...