Frank v. City of Decatur

• Decision Date: 22 June 1910
• Docket Number: No. 21,667.,21,667.
• Citation: 92 N.E. 173,174 Ind. 388
• Parties: FRANK v. CITY OF DECATUR.
• Court: Indiana Supreme Court

174 Ind. 388

92 N.E. 173

FRANK

v.CITY OF DECATUR.

No. 21,667.

Supreme Court of Indiana.

June 22, 1910.

Appeal from Circuit Court, Adams County; J. P. Merriman, Judge.

Action by Samuel Frank against the City of Decatur. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

A. P. Beatty and Heller & Son, for appellant. L. C. De Voss, for appellee.

MYERS, J.

The city of Decatur is a city of the fifth class, organized under the general law as it existed prior to the passage of the general law of 1905 (Acts 1905 p. 219 et seq., Burns' Ann. St. 1908, § 8639 et seq.) concerning municipal corporations. Prior to that act going into effect, an ordinance had been enacted by the common council of the city of Decatur authorizing and empowering the mayor to appoint and remove reserve or special policemen. Under that authority appellant was appointed by the mayor prior to March 1905, and continued under that appointment and was paid by the city until September 30, 1907. He filed a complaint setting up the foregoing facts, and avers that the ordinance has not been repealed and is in force, and that on October 1, 1907, he was by the mayor “notified to remain on duty until notified by him to quit,” and that he, appellant, under such call served 65 days, and that the council refuses to pay him, and demands judgment for 65 days' service at $1.50 per day for active service, the price fixed by the ordinance. A demurrer for want of facts was sustained to his complaint and he appeals, assigning error upon that ruling.

The question for determination is: What was the effect of the enactment of the cities and towns act of 1905 upon the prior ordinance of the city of Decatur, and the prior authority and power of the mayor to appoint reserve policemen? The contention of appellant is that the prior statute expressly provided for the enactment of an ordinance granting the authority and power to the mayor to appoint, and that it had been exercised; Section 3541 subd. 8, Burns' Ann. St. 1894 and 1901. That by reason of no reference to subdivision 8 in the act of 1905, the ordinance was not abrogated, and is yet in force, and the power of appointment still rests in the mayor.

Appellee's contention is that by the act of 1905, the power of appointment of policemen is in the city council, unless it shall by ordinance provide for the exercise of the power by a committee of the council, and reliance is placed on section 8791, Burns' Ann. St. 1908.

The duty of the Codification Committee under the act of 1903 (Acts 1903, p. 391), was to prepare “a compilation, revision, and codification of the statute law *** concerning public, private, and other corporations, etc., to omit all parts repealed, or obsolete and insert all amendments necessary to make all laws complete, *** to prepare and report bills concerning new matters, repealing old laws,” etc. Out of this direction grew the cities and towns act of 1905, which we know historically was an attempt at systematization, uniformity, and simplification of our municipal laws. While it could hardly be expected to embrace every possible condition which might arise, it goes far to codify the whole subject. As to all cities except those of the fifth class, the act is quite definite and specific; as to those of the fifth class the act depends for its construction, and enforcement, upon the analogous conditions under the other classes. “All former laws within the purview of the act are expressly repealed.” Burns' Ann. St. 1908, § 9016. The purview of an act is said to be “the enacting part of a statute in contradistinction to the preamble.” State v. Ives (1906) 167 Ind. 13, 18, 78 N. E. 225;State v. Reynolds (1886) 108 Ind. 353, 358, 9 N. E. 287.

Whilst repeals by implication are not favored, yet when a new act entirely covers, or embraces, the entire subject-matter of the old, or is repugnant to it, the latter is repealed. Findling v. Foster, 170 Ind. 325, 84 N. E. 529;Collins Coal Co. v. Hadley (1906) 38 Ind. App. 637, 647, 75 N. E. 832, 78 N. E. 353;Board v. Garty, 161 Ind. 464, 68 N. E. 1012;Sefton v. Board, 160 Ind. 357, 66 N. E. 891;State v. City of Noblesville, 157 Ind. 31, 60 N. E. 704;Pomeroy v. Beach, 149 Ind. 511, 49 N. E. 370;Thomas v. Town of Butler, 139 Ind. 245, 38 N. E. 808;Warford v. Sullivan, 147 Ind. 14, 46 N. E. 27;Wright v. Board, 98 Ind. 88.

Section 8791 clearly contemplates that the powers exercised by boards of public safety in cities above the fifth class with respect to the appointment of policemen and firemen should, in the fifth class cities, be exercised by the common council, or by committees appointed by ordinance. We do not see how this act can exist with the old act conferring the right to authorize appointments by the mayor, or the former be held to be cumulative, or both stand together. Cities have only such powers as are expressly conferred, or such as are necessarily implied, and if the statute were silent upon the subject, we might well conclude that the power conferred under the old statute was intended to remain unaffected, but the later act not only leaves out the former provision, but expressly lodges the power in the common council to appoint itself, or by its duly-appointed committee. It is not a case where there is a special grant of power to a municipal corporation to legislate upon enumerated subjects, whereby the powers are added to, but the subject is entirely covered. “A power vested by legislation in a city corporation to make by-laws for its own government and the regulation of its own police cannot be construed as imparting to it the power to repeal the (general) laws in force, or to supersede their operation by any of its ordinances. Such a power, if not expressly conferred, cannot arise by mere implication, unless the exercise of the power given be inconsistent with the previous law, and does not necessarily operate as its repeal pro tanto. Nor can the presumption...