Kunkalman v. Gibson

• Citation: 171 Ind. 503,86 N.E. 850
• Decision Date: 05 January 1909
• Docket Number: No. 20,999.,20,999.
• Parties: KUNKALMAN et al. v. GIBSON et al.
• Court: Indiana Supreme Court

171 Ind. 503
86 N.E. 850

KUNKALMAN et al.
v.
GIBSON et al.

No. 20,999.

Supreme Court of Indiana.

Jan. 5, 1909.

On petition for rehearing. Overruled.

For former report, see 84 N. E. 985.

H. G. Zimmerman, Robt. W. McBride, O. L. Ballow, and Wigton & Green, for appellants. Marshall, McNagny & Chigston, J. W. Hanan, F. P. Bothwell, and L. H. Wrigley, for appellees.

PER CURIAM.

It is for the General Assembly to determine the measure of jurisdiction which it will grant or withdraw in relation to the construction of public drains. Taylor v. Strayer, 167 Ind. 23, 78 N. E. 236, 119 Am. St. Rep. 469. An examination of the drainage legislation of 1905 shows a predominate purpose in the legislative mind to prevent the drainage of lakes of more than a specified area, and to that end the General Assembly, in repealing all prior drainage laws, saved existing proceedings only in certain cases. As to the excepted proceedings, it left the prior laws in force to secure their consummation. This proceeding was stricken down by the statute because it amounted to an “attempt to” drain a protected lake. Concerning the legislation here involved, we said in Taylor v. Strayer, supra: “It was also the expressed intent of the Legislature to save all pending ditch proceedings which had not progressed to final judgment, provided the proposed ditches were not designed to and would not affect lakes with the surface area named.” The time when the law went into operation was the testing time for the determination of the question as to whether this proceeding should continue. The further language of the clause, which had to do with the actual result of lowering a protected lake, was to guard against eventualities, which might have that result. It is only upon the construction which we have given to the saving clause that all of its language can be made operative.

It must not be forgotten that the saving clause dealt with two classes of cases only: Those existing proceedings which were to be concluded under former laws, and those which were to abate. As to the latter class, there was no authority left to modify the character of such proceedings, for former laws were repealed as to cases not within the class referred to, while the new law did not govern such cases, since pending proceedings which were not affected by the repeal would be concluded as if the “act had not been passed.” It was therefore impossible to change a proceeding that had failed by reason of the repeal of the old law so as to...