Draper v. Zebec, 27511.

• Docket Nº: No. 27511.
• Citation: 38 N.E.2d 995, 219 Ind. 362
• Case Date: January 21, 1942
• Court: Supreme Court of Indiana

219 Ind. 362
38 N.E.2d 995

DRAPER
v.
ZEBEC et al.

No. 27511.

Supreme Court of Indiana.

Jan. 21, 1942.

Appeal from Newton Circuit Court; George F. Sammons, Judge.

On petition for rehearing.

Rehearing denied.

For former opinion, see 37 N.E.2d 952.

[38 N.E.2d 995]

Henry G. Doherty, of East Gary, and Willis C. McMahan, of Gary, for appellant.

Jay E. Darlington, of Hammond, Walter Myers, Walter Myers, Jr., and Donald L. Smith, all of Indianapolis, and Crumpacker & Friedrich, of Hammond, for appellee Katherine Zebec.

Bomberger, Peters & Morthland, of Hammond, for appellee Federal Life Ins. Co.

FANSLER, Judge.

The appellee Katherine Zebec has filed a petition for rehearing in which it is asserted that: ‘The decision contravenes two earlier Supreme Court decisions regarding title of statutes,’ and it is suggested that, if the opinion is to stand, Lewis v. State, 1897, 148 Ind. 346, 47 N.E. 675, and Stiers et al. v. Mundy et al., 1910, 174 Ind. 651, 92 N.E. 374, should be overruled. These cases were first called to the court's attention in the brief on petition for rehearing. It is conceded that the opinion is sustained by the weight of authority, but it is contended that a contrary rule is established by the decisions of this court.

It is clear that the subject-matter of an amending act may be as broad as the title of the act which is amended unless the title of the amending act restricts the subject-matter to a narrower field.

In the Lewis case the court considered an act entitled, ‘An act to amend section 209 of an act entitled ‘An act concerning public offenses and their punishment,’ [Acts 1881, p. 174] * * *' Page 348 of 148 Ind.,page 676 of 47 N.E. The amending act contained two sections. The court held that the subject-matter of both sections of the amending act was within the purview of the subject of section 209, which was amended, and that the act would not be stricken down because the amending act was in two sections. The appellee is in error in assuming that the original opinion holds the act to be unconstitutional because of the division into additional sections.

The result reached in the Stiers case rests upon the conclusion that (page 654 of 174 Ind.,page 376 of 92 N.E.): ‘Under the decisions of this court, the mere fact that the proviso of the amendatory act of 1901, supra [Acts 1901, p. 118], refers to matters not germane to the subject -matter of the particular section it purports to amend, does not render it unconstitutional and void, if the subject-matter incorporated in the amendment is within the purview and is germane to the title of the act amended. Lewis v. State [1897], 148 Ind. 346, 47 N.E. 675, and cases cited; Rose v. State [1909], 171 Ind. 662, 87 N.E. 103 [17 Ann.Cas. 228], and cases cited; Cain v. Allen, 1907, 168 Ind. 8, 24, 79 N.E. 201, 896.’ The court seems to have assumed that the rule announced was established and settled by the cases cited, since there is no analysis or discussion of the principles involved.

In Cain v. Allen et al., 168 Ind. 8, 79 N.E. 201, 896, the court held that an amended section 9 was within the title of the original act. From the statements in the opinion and the authorities cited, it seems clear that no question was raised upon the sufficiency of the title of the amending act.

In Rose et al. v. State (page 665 of 171 Ind.,page 104 of 87 N.E.,17 Ann.Cas. 228), it is said: ‘The subject of said act of 1907, supra [Acts 1907, pp. 29-33, c. 16], is that of the act of 1875 (Acts 1875 [Sp.Sess.], p. 55, c. 13), of which it is an amendment.

[38 N.E.2d 996]

* * *’ An examination of the briefs in the case discloses that no question was made concerning the title of the amending act. The only contention was that the act dealt with two non-related subjects.

As we have already pointed out, the sufficiency of the title of the amending act was not involved in Lewis v. State. It is clear therefore that the statement quoted from the Stiers case is not supported by the authorities cited. We have investigated the cases to discover whether it finds support elsewhere in the decisions of this court.

Reed v. State, 1859, 12 Ind. 641, 642, involved an act entitled, ‘An act to amend section eleven of an act entitled ‘An act to establish Courts of Common Pleas, and defining the jurisdiction and duties of, and providing compensation for the judges thereof,’ approved May 14, 1852-so as to cases.' Section 11 of the original act cases.' Section 11of the original act defined the jurisdiction of the court in civil cases. The first section of the amendatory act relates to jurisdiction in civil cases, and the second section of the amendatory act relates to jurisdiction in criminal cases. It is clear beyond controversy that both civil and criminal jurisdiction were within the title of the...