Milk Control Bd. v. Pursifull
| Decision Date | 14 October 1941 |
| Docket Number | 27562. |
| Citation | 36 N.E.2d 850,219 Ind. 49 |
| Parties | MILK CONTROL BOARD v. PURSIFULL. |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Grant County; Oren W. Dickey judge.
Charles G. Dailey, of Indianapolis, and Browne Campbell & Gemmill, of Marion, for appellant.
Van Atta, Batton & Harker, of Marion, for appellee.
The appellee has filed a motion to dismiss this appeal on the ground that the Milk Control Law expired by limitation June 30th, 1941, and that, therefore, this appeal presents only a moot question.
The Milk Control Law was enacted in 1935. Ch. 281, Acts 1935, p 1365. Section 25 of the original act provided that the provisions of the act should apply only during the 'emergency period' which was defined as the period between the effective date of the act and July 1st, 1937. In 1937 the General Assembly amended several sections of the original act, including § 25. Ch. 215, Acts 1937, p. 1071. Said § 25, as amended, provided that 'This act shall expire by limitation' on June 30th, 1939, except as to 'any right of action or cause of prosecution then accrued or existing, arising out of this act.' The 1939 legislature by an amendatory act (ch. 26, Acts 1939, p. 67) extended the expiration date to June 30th, 1941. In 1941 the General Assembly passed another act (ch. 198, Acts 1941, p. 599), amending several sections of the 1937 amendatory act and also § 1 of the 1939 amendatory act thereby extending the date of expiration to the 30th day of June, 1943. This final amendatory act was approved by the Governor, March 11th, 1941. It did not carry an emergency clause, and therefore, did not become effective until July 8th, 1941, the date of the proclamation by the Governor that the published Acts had been distributed in all of the counties of the State, and that said Acts were in effect.
Appellee contends that since the last amendatory act did not become effective until July 8th, 1941, and since the original act, as amended in 1939, expired by limitation on June 30th, 1941, the 1941 amendatory act was an invalid attempt to amend a law which had expired.
There can be no doubt from the language of the 1941 Act as to the intention of the legislature. It was clearly intended that the operation of the Milk Control Law, as amended, should be continued and extended for another period of two years. This court has held, however, that an act is invalid which purports to amend a statute which has been repealed, or which has been judicially declared invalid in its entirety. This has been held on the theory that the legislature can not amend an act or a section of an act not then in force. Kramer v. Beebe, 1917, 186 Ind. 349, 115 N.E. 83.
In other states, however, it has been held that the legislature may validly amend an original act which had theretofore been amended or repealed, or which, for some other reason, was not then in force. In 25 Ruling Case Law, p. 906, it is said that 'the decided weight of authority and the better opinion is that an amendatory statute is not invalid, though it purport to amend a statute which had previously been amended or for any reason had been held invalid.' Vol. I Lewis' Sutherland Statutory Construction, p. 436, says that this view is sustained by the decisions and cites many cases so holding.
An examination of the authorities on this question reveals that in all such cases which have been considered by this court the original act had been repealed prior to the passage of the amendatory act. In other words, while the amendatory act was still in the legislative process of enactment there was no original law to amend.
In the instant case the 1941 amendatory act was duly passed by both houses of the General Assembly, was signed by the presiding officers of the respective houses and on March 11th, 1941, it was approved by the Governor. At that time the Milk Control Law was in force and subject to amendment by the legislature. By the amendatory act the legislature, in effect, determined that the emergency which made the original Milk Control Law necessary was still in existence and would be until June 30th, 1943. An emergency clause might have been added to the amendatory act, but there was then no apparent emergency to justify the inclusion of an emergency clause. The law had been in force since 1935 and in the ordinary course of events the acts would be published and distributed to the counties by the Secretary of State, and the Governor's proclamation would be issued before the expiration date fixed in the 1939 amendment. The approval of the amendatory act by the Governor on March 11th, 1941, was the last necessary step in the legislative process. It was then a duly enacted law of the General Assembly. Nothing remained but the administrative acts of the Secretary of State in distributing copies of the printed acts and of the Governor declaring them effective. Ross, Tr., v. Chambers, 1938, 214 Ind. 223, 14 N.E.2d 1012.
Should the delay in performing these purely administrative acts be permitted to thwart the purpose and intention of the Legislature? In State ex rel. v. Grant Superior Court, 1930, 202 Ind. 197, 172 N.E. 897, 901, 71 A.L.R. 1354, this court said, In that case the bill in question, after passage by both houses, was delivered to the Governor and then was lost. It had an emergency clause but was not approved by the Governor. It was held to have become a valid law and to be in effect without publication.
The language in only one decision by this court lends apparent support to the appellee's contention that the rule that the legislature may not amend an act which is not then in force is...
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