McCleary v. Babcock, No. 20,917.

• Docket Nº: No. 20,917.
• Citation: 169 Ind. 228, 82 N.E. 453
• Case Date: October 30, 1907
• Court: Supreme Court of Indiana

169 Ind. 228
82 N.E. 453

McCLEARY et al.
v.
BABCOCK et al.

No. 20,917.

Supreme Court of Indiana.

Oct. 30, 1907.

Appeal from Circuit Court, Kosciusko County; Vinson Carter, Special Judge.

Action by Joseph McCleary and others against James Babcock, as treasurer of Kosciusko county, and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

[82 N.E. 454]

Walter Olds, Stookey, Anglin & Foster, and Sam. O. Pickens, for appellants. Frazer, Biggs & Frazer, R. J. Loveland, and Jno. D. Widaman, for appellees.

HADLEY, C. J.

The principal question in this appeal involves the construction of the statutes of the state concerning the voting of aid to interurban railroads incorporated under the street railway act. In July, 1904, a petition signed by more than 25 resident taxpayers and voters of Wayne township, Kosciusko county, was filed with the board of county commissioners, praying said board to order an election for the purpose of voting upon the question of donating to the appellee, the Winona Interurban Railway Company, a corporation organized under the statutes for the incorporation of street railway companies, $25,000, as aid to the appellee in the construction of its railroad through the township. The prayer was granted, and the election held, which resulted favorably to the donation. The board of commissioners ordered the levy to be made, and the same was placed upon the tax duplicates of Wayne township for collection, and said duplicates placed in the hands of appellee Babcock, as treasurer of the county, for collection against appellants, who were taxpayers of said township. Whereupon this action was commenced by appellant for himself and 85 others to enjoin the collection of the tax. The complaint is in one paragraph. To the complaint each of the defendants filed a demurrer in these words: “The defendants and each of them separately demur to the plaintiff's complaint herein for each of the following reasons. ***” The court sustained the demurrer of each of the defendants, and the plaintiff declining to plead further, judgment was rendered against him.

The complaint is based upon the theory that there is no valid law of this state authorizing the levying of a tax in aid of interurban railroads, and that the tax complained of is therefore illegal and void. And in his contention it is conceded by appellant that if the act approved March 9, 1903 (Acts 1903, p. 233, c. 134) is a valid act, the statute in controversy has legal sanction, and the complaint is insufficient on demurrer. The demurrer in form is several, and not joint, as to the demurrants, as questioned by appellant. Furthermore, there is no doubt but the action may be well brought as to some, and not as to others, of the defendants, but the defendants were all made parties on the plaintiff's (appellant's) own motion, and the railway company, being the sole beneficiary of the tax, and Wayne township the civil body having voted the tax, and both being in danger of having the tax and its benefits swept away by plaintiff's suit, are proper, if not necessary and indispensable, parties. And, if it shall turn out that the supplemental act of 1903 is constitutional and the complaint without foundation, then it can make no difference to appellant whether or not the railroad or township were proper parties to his suit.

Then, is the act of 1903 constitutional? It is claimed that the act is in derogation of the Constitution of Indiana in two particulars: First, because it has no enacting clause, as required by section 1, art. 4; and, second, if intended as an amendment to the act of 1869, it is void for failure to set forth in full the section as amended in accordance with section 21, art. 4. It is sufficient to say, once for all, that the said act of 1903 has an enacting clause in the precise language of the Constitution, and hence the act is not obnoxious to section 1, art. 4. The first legislation authorizing the voting of aid to railroads was approved May 12, 1869, and entitled “An act to authorize aid to the

[82 N.E. 455]

construction of railroads by counties and townships taking stock in, and making donations to railroad companies.” Laws 1869, p. 92, c. 44. The act of 1903, in controversy, has a title covering more than two printed pages, and begins thus: “An act supplemental to an act entitled ‘An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to railroad companies, approved May 12, 1869; also supplemental to an act entitled,”’ etc.; and in like manner proceeding to recite that said proposed act was supplemental to all the acts, either original, supplemental, or amendatory, affecting the original act of 1869, setting each act forth specifically by title and date of approval, all of which occupy so much space that we do not feel justified in quoting. The enacting section, in substance, is as follows: “Be it enacted by the General Assembly of the state of Indiana that wherever the word ‘railroad’ occurs in either section of the act of May 12, 1869, or in any section of any subsequent act, amendatory, or supplemental to said act of 1869, here setting forth such acts by title and date of approval, the same shall be extended to and held to include every kind of street railroad, suburban street railroad, or interurban street railroad *** by whatever power its vehicles are to be or are transported.” It will be observed that the new act makes no change in any existing statute relating to the subject of giving aid to railroads. Its passage did not affect the force and vigor of any previous legislative provision relating to the subject. If the act of 1869, and all subsequent, supplemental, and amendatory legislation, applied solely to what are commonly called “steam roads,” as contended by appellant, that could make no difference to them, for every such company may yet proceed in every particular the same as if the act of 1903 had not been passed. It is plain that the act of 1903 is not, in effect, an amendatory act. To amend a statute is to alter it, to annul or remove that which is faulty and substitute that which will improve it. An amendment means to “change or modify in any way for the better.” Webster's Int. Dict.; Diamond v. Wiliamsburg Ins. Co., 4 Daly (N. Y.) 494, 500. The word “amend” is synonymous with “correct, reform, rectify.” It means a correction of errors, an improvement, a reformation. It necessarily implies something upon which the correction, alteration, and improvement can operate. Something to be reformed, corrected, or improved. In re Pa. Tel. Co., 2 Chest. Co. Rep. (Pa.) 129, 131. A supplemental act has quite a different meaning. “It signifies something additional, something added to supply what is wanting.” Webster's Int. Dict. It is that which supplies a deficiency, adds to, or completes, or extends that which is already in existence, without changing or modifying the original. State v....