Frank v. City of Decatur

• Decision Date: 22 June 1910
• Docket Number: 21,667
• Citation: 92 N.E. 173,174 Ind. 388
• Parties: Frank v. City of Decatur
• Court: Indiana Supreme Court

92 N.E. 173

174 Ind. 388

Frank v. City of Decatur

No. 21,667

Supreme Court of Indiana

June 22, 1910

From Adams Circuit Court; James T. Merryman, Judge.

Action by Samuel Frank against the City of Decatur. From a judgment for defendant, plaintiff appeals.

Affirmed.

A. P Beatty and Heller & Son, for appellant.

L. C DeVoss, for appellee.

OPINION

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) concerning municipal corporations. Prior to the time said act went into effect, an ordinance had been enacted by the common council of the city of Decatur authorizing the mayor to appoint and to remove 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 He filed a complaint setting up the foregoing facts, and averring that the ordinance has not been repealed, is in force, and that on October 1, 1907, he was by the mayor "notified to remain on duty until notified by him to quit," and that he (appellant), under such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 sixty-five days, and that the council refuses to pay him. He demands judgment for sixty-five days' active service at $ 1.50 a day, 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, supra, 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 statutes expressly provided for the enactment of an ordinance granting the authority and power to the mayor to appoint, and that it had been exercised (§ 3541 Burns 1894, subd. 8, § 3106 R. S. 1881; § 3541 Burns 1901, subd. 8, Acts 1895 p. 180, § 53); and that by reason of no reference in the act of 1905 (Acts 1905 p. 219, § 53, § 8655 Burns 1908) to subdivision eight, supra, the ordinance was not abrogated, and is yet in force, and that the power of appointment still rests in the mayor.

Appellee's contention is that by said 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 § 8791 Burns 1908, Acts 1905 p. 219, § 170.

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 laws * * * concerning public, private and other corporations, * * * 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 act of 1905, supra, which we know historically was an attempt to systematize, harmonize and simplify 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. § 9016 Burns 1908, Acts 1905 p. 219, § 272. The purview of an act is said to be, "the enacting part of a statute, in contradistinction to the preamble." State, ex rel., v. Ives (1906), 167 Ind. 13, 78 N.E. 225. See State v. Reynolds (1886), 108 Ind. 353, 358, 9 N.E. 287.

While repeals by implication are not favored, yet when a new act entirely covers the subject-matter of the old, or is repugnant to it, the latter is repealed. Findling v. Foster (1908), 170 Ind. 325, 84 N.E. 529; Collins Coal Co. v. Hadley (1906), 38 Ind.App. 637, 75 N.E. 832; Board, etc., v. Garty (1903), 161 Ind. 464, 68 N.E. 1012; Sefton v. Board, etc. (1903), 160 Ind. 357, 66 N.E. 891; State, ex rel., v. City of Noblesville (1901), 157 Ind. 31; Pomeroy v. Beach (1898), 149 Ind. 511, 49 N.E. 370; Thomas v. Town of Butler (1894), 139 Ind. 245, 38 N.E. 808; Warford v. Sullivan (1897), 147 Ind. 14, 46 N.E. 27; Wright v. Board, etc. (1884), 98 Ind. 88.

Section 8791, supra, 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 on the mayor the right to make appointments, 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 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 make appointments 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 be indulged, that the legislature intended that an ordinance passed by the city, should be superior to, or take the place of, the general law of the state on the same subject." March v. Commonwealth (1851), 12 B. Mon. (Ky.) 25. See also, Rothschild v. City of Darien (1882), 69 Ga. 503; State v. Treasurer, etc. (1882), 44 N.J.L. 350.

In the case of State v. Clarke (1873), 54 Mo. 17 14 Am. Rep. 471, the court said: "The best indication of public policy is to be found in the enactments of our legislature." Cities and towns cannot, under their incidental or implied powers, or under general grants of authority, adopt by-laws or ordinances which infringe upon the spirit, or are repugnant to the policy of the state as declared in its general legislation. Town of Marietta v. Fearing (1831), 4 Ohio 427; Grand Rapids, etc., Power Co. v. Grand Rapids, etc., Gas Co. (1888), 33 F. 659; Ex parte Chin Yan (1882), 60 Cal. 78; Mayor, etc., v....