Collins Coal Co. v. Hadley

• Decision Date: 29 June 1906
• Docket Number: 5,466
• Citation: 78 N.E. 353,38 Ind.App. 645
• Parties: COLLINS COAL COMPANY v. HADLEY, ADMINISTRATRIX
• Court: Indiana Appellate Court

78 N.E. 353

38 Ind.App. 645

COLLINS COAL COMPANY v. HADLEY, ADMINISTRATRIX

No. 5,466

Court of Appeals of Indiana

June 29, 1906

38 Ind.App. 637. At 645.

Original Opinion of October 25, 1905, Reported at: 38 Ind.App. 637.

Petition for rehearing overruled.

OPINION

ON PETITION FOR REHEARING.

WILEY J.

Appellee has asked for a rehearing and has supported her petition therefor by an able and ingenious brief. While several reasons are assigned, they are all included in the single question decided in the original opinion, viz: That under the facts stated in the complaint the right of action was in the widow of decedent and not in his personal representative.

It is urged that the action was rightly brought in the name of the administratrix, for the reason that section thirteen of the mining act (Acts 1891, p. 57, § 7473 Burns 1901) "was modified by the later-enacted general statute of 1899 (Acts 1899, p. 405, § 285 Burns 1901), which conferred the right of action for death by wrongful act upon the personal representative."

It is insisted that under the amended act of 1899, supra, a right of action where death results from the "wrongful act or omission" of one, is lodged solely in the personal representative of the decedent. If this is true, the amended act repeals, by implication, § 7473 supra, which gives the right to the widow "or to any other person or persons who were before such loss of life dependent for support on the person or persons so killed," etc.

If the latter section is repealed, then we were in error in holding that the administratrix could not maintain this action. Prior to the reenactment in 1899 of the general statute giving a right of action for the death of a person caused by the wrongful act or omission of another, the damages recoverable inured "to the exclusive benefit of the widow and children, if any, or next of kin," etc. The only change made by the amendatory act of 1899, supra, was by adding the words "or widower (as the case may be)."

It seems clear that the purpose of the amendatory act was to extend the provisions of the statute to the widower, by making him a beneficiary thereunder. It is evident, from the words employed, that it was not the intention of the legislature to repeal section thirteen of the mining act. So, if the latter section was repealed, it was by implication. Repeals by implication are not favored.

In Board, etc., v. Garty (1903), 161 Ind. 464, 68 N.E. 1012, it was said: "It is a familiar rule, and one universally affirmed by the authorities, that a repeal by implication is not favored. In accordance with this rule, two or more acts on the same subject must, if possible, be so construed that both may be permitted to stand. It has been repeatedly affirmed by decisions of this court that implied repeals are only recognized and upheld when the later act is so repugnant to the earlier as to render the repugnancy or conflict between them irreconcilable. A court will always, if possible, adopt that construction which, under the particular circumstances in a given case, will permit both laws to stand and be operative."

In 1 Lewis's Sutherland, Stat. Constr. (2d ed.), § 247, it is said: "'When some office or function can by fair construction be assigned to both acts, and they confer different powers to be exercised for different purposes, both must stand, though they were designed to operate upon the same general subject.' Woods v. Board, etc. [1893], 136 N.Y. 403, 32 N.E. 1011. * * * 'The earliest statute continues in force unless the two are clearly inconsistent with and repugnant to each other, or unless in the later statute some express notice is taken of the former plainly indicating an intention to repeal it; and where two acts are seemingly repugnant, they should, if possible, be so construed that the latter may not operate as a repeal of the former by implication.' People, ex rel., v. Raymond [1900], 186 Ill. 407, 57 N.E. 1066. These expressions of opinion are supported by numerous cases."

In 1 Lewis's Sutherland, Stat. Constr. (2d ed.), § 267, the author says: "If, by fair and reasonable interpretation, acts which are seemingly incompatible or contradictory may be enforced and made to operate in harmony and without absurdity, both will be upheld, and the later one will not be regarded as repealing the others by construction or intendment. As laws are presumed to be passed with deliberation and with a full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. * * * The act being silent as to repeal and affirmative, it will not be held to abrogate any prior law which can reasonably and justly operate without antagonism. A statute which does not take away any right, or impose any substantially new duty, but regulates with additional requirements a duty imposed by a previous statute, is not to be deemed inconsistent with the previous act. Two statutes are not repugnant to each other unless they relate to the same subject and are passed for the same purpose. 'It is a reasonable presumption that all laws are passed with a knowledge of those already existing, and that the legislature does not intend to repeal a statute without so declaring.'"

In 1 Lewis's Sutherland, Stat. Constr. (2d ed.), § 273, is found the following: "'A fair law which is merely a reenactment of a former does not repeal an intermediate act which has qualified or limited the first one, but such intermediate act will be deemed to remain in force, and to qualify or modify the new act in the same manner as it did the first.' This is especially true if the intermediate law is special or particular and the reenacted law is a general law on the same subject. * * * Where a law is substantially reenacted it is said to show that the legislature did not regard it as repugnant to an intermediate act to some extent covering the same subject." These declarations of the law, applicable to repeals, are abundantly sustained by the authorities, of which we cite the following: Powell v. King (1899), 78 Minn. 83, 80 N.W. 850; State, ex rel., v. Commissioners, etc. (1890), 21 Nev. 19, 23 P. 935; Township of Harrison v. Board, etc. (1898), 117 Mich. 215, 75 N.W. 456; Cooperative Sav., etc., Assn. v. Fawick (1899), 11 S.D. 589, 79 N.W. 847; Small v. Lutz (1902), 41 Ore. 570, 67 P. 421, 69 P. 825; Bentley v. Adams (1896), 92 Wis. 386, 66 N.W. 505; State, ex rel., v. Beard (1892), 21 Nev. 218, 29 P. 531; State, ex rel., v. Mayor, etc. (1894), 57 N.J.L. 298, 30 A. 543; Oleson v. Haritwen (1893), 57 F. 845, 6 C. C. A. 608; People v. Wenzel (1895), 105 Mich. 70, 62 N.W. 1038; Curbay v. Bellemer (1888), 70 Mich. 106, 37 N.W. 911; Gazollo v. McCann (1895), 63 Mo.App. 414; Lynch v. Chase (1895), 55 Kan. 367, 40 P. 666; Blain v. Bailey (1865), 25 Ind. 165; Blumenthal v. Tibbits (1903), 160 Ind. 70, 66 N.E. 159.

In the last case cited it was insisted that section seventeen of the act approved March 7, 1883 (Acts 1883, p. 151, § 2484 Burns 1901), amending the decedent's act, repealed § 802 Burns 1901, § 790 R. S. 1881, of the civil code, but the court held otherwise, and in the opinion said: "It is true that § 2484, supra, was enacted in 1883, while § 802, supra, was enacted in 1881, but § 2484 is substantially a reenactment of § 151 of the decedent's act, enacted in 1881 (Acts 1881, p. 423), and the presumption against a repeal under such circumstances is especially strong."

In 1852 the legislature passed two laws, one of which was special, exempting farm lands lying within the corporate limits of cities from municipal taxation, and the other general, giving cities power to collect an ad valorem tax on all property within their corporate limits. In 1857 the latter act was amended, but the section conferring power upon cities to collect taxes on "all property within such city" was reenacted in precisely the same language.

In Blain v. Bailey, supra, the question involved was whether the act of 1857 repealed by implication the special act of 1852, exempting farm lands within the corporate limits of a city from taxation. It was held that the special act was not repealed, and in the decision the court employed the following language "While these two acts continued in force they were, by the settled rules of construction, to be so interpreted that both could have effect. This could be done by holding the particular cases mentioned in the exempting act to constitute exceptions to the general provisions of the other act, and we are not aware that any doubt was entertained upon that subject at that time. Now we cannot suppose that the legislature, by reenacting a provision in the same language which was employed in a repealed statute, intended to impart to it a wider scope, or other meaning, than that which the same words were previously intended to import, especially when the effect would be to accomplish what is not favored in the law--the repeal of another statute by implication. It is more reasonable to hold that the words have been employed in the same sense in which they had been used in the act repealed. * * * The position that it was not intended to repeal the act in question is strongly confirmed by the fact that the act of 1857 (section one) expressly repeals several acts which would undoubtedly have been repealed by it by implication, but is entirely silent as to this act. Why was this? The legislature must be presumed to have acted with deliberation, and with a full knowledge of all existing acts upon the same subject. * * * Again, the forty-second section of the act of 1857 is a general stat...