Mode v. Beasley

• Decision Date: 10 January 1896
• Docket Number: 17,630
• Citation: 42 N.E. 727,143 Ind. 306
• Parties: Mode et al. v. Beasley et al
• Court: Indiana Supreme Court

42 N.E. 727

143 Ind. 306

Mode et al. v. Beasley et al

No. 17,630

Supreme Court of Indiana

January 10, 1896

From the Washington Circuit Court.

The judgment is affirmed.

J. H Weathers, J. L. Suddarth, R. J. Tracewell, J. A. Zaring, M B. Hottel, B. K. Elliott, W. F. Elliott and E. R. Odle, for appellants.

C. L Jewett, H. E. Jewett, A. G. Smith and C. A. Korbly, for appellees.

OPINION

McCabe, J.

This is an appeal from a judgment of the Washington Circuit Court relocating the county seat of Crawford county at English, the proceeding having originated before the board of commissioners of Crawford county, from whose determination of the matter there was an appeal to the circuit court of said county and from which court the cause went on different and several changes of venue finally to the Washington Circuit Court, where it was finally tried, resulting in the judgment already mentioned over appellants' motion for a new trial. The assignment of errors is such as to present the questions hereinafter discussed and decided. The proceeding was had under the act of March 9, 1889. Acts of 1889, p. 297; R. S. 1894, sections 5579-5588 (Elliott Supp., sections 1152-1161).

It is contended by the learned counsel for appellants that the act is unconstitutional because it is local in its operation and effect, being in violation of section 22 of article 4 of the State constitution.

It is contended that while it purports to be general, it is nevertheless as much local and confined in its operation to Crawford county as if it had been so expressly limited by its terms to Crawford county by name.

It is said in 3 Am. and Eng. Ency. of Law, pp. 696-7 that: "A statute in relation to the counties or cities of a State which affects only a portion of them, or which expressly or impliedly excludes a portion from its operation, is local and special within the meaning of the constitutional inhibitions. The prohibition cannot be evaded by declaring the act to be a general law. Any statute which can apply to but a portion of the State, though purporting to be a general statute, is special legislation." See the authorities there cited.

It is not denied by the appellees that the act in question is as local as if it expressly named Crawford county as the only place in the State where its provisions are to have any operation whatever. But it is contended on their behalf that it is not all local legislation that is inhibited by the constitution and that the location and relocation of county seats are legislative functions and that unless such legislation conflicts with some express inhibition in the constitution it would still be valid not-withstanding it is local and not of uniform operation throughout the State. It is said in 4 Am. and Eng. Ency. of Law, 402-3, and the text is supported by numerous authorities there cited that: "The removal of county seats is a subject over which the law-making power has plenary jurisdiction and control. In the absence of constitutional restrictions, a removal could be authorized upon any vote, great or small, which that body deemed advisable." * * * "No one has a vested right in the continuance of a county seat at a particular place, and in the absence of constitutional restrictions the Legislature has the power of removing it."

The section of the constitution already referred to, and the one appellants claim is violated by the act in question, provides "That the General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say;" and then follows the enumeration of seventeen subjects. The inhibition here against local or special legislation on those or any of those subjects is absolute and unconditional. But the next, the twenty-third section of the same article, provides that "In all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the State."

It was decided in Thomas v. Board, etc., 5 Ind. 4, that a special act of the Legislature providing for the removal of the county seat of that county was a violation of the twenty-third section of article 4, supra.

That case has since been overruled on the point that such an act is void by virtue of the inhibition against local legislation contained in the twenty-third section, though it has never been questioned on the other point. Gentile v. State, 29 Ind. 409.

Thomas v. Board, etc., supra, was decided in 1854, and Gentile v. State was decided in 1868, which gave the former a standing as law as to local legislation under said section 23, for a period of fourteen years.

The erroneous impression produced by that case on that subject was so great that nearly every Legislature, if not every one, from that time to the present has been passing acts that were strictly local under titles and enacting clauses purporting to make them general in their operation throughout the State. A conspicuous example of this class of acts is what is generally known as the charter of Indianapolis, approved March 6, 1891. Acts 1891, pp. 137-197. But the city of Indianapolis is not named in the act, both the title and the body thereof purport to make the act general and of uniform operation throughout the State by providing: "That all cities of this State which had a population of more than 100,000 inhabitants, as shown by the last preceding United States census, shall hereafter be governed by the provisions of this act." And then follows the balance of the first section and the other 134 sections of the act, all of which are as expressly confined in their operation to the city of Indianapolis by the part of section 1 above quoted as if the city of Indianapolis had been named as the only place where said act was ever to have any operation or effect whatever.

It is to be noted that the act is confined to cities which had a population of more than 100,000 inhabitants as shown by the last preceding United States census. This, and all courts in the State judicially know and the Legislature knew that the city of Indianapolis was the only city in the State at the passage of the act that the last census report showed had more than 100,000 inhabitants. And no matter how many cities in the State might by subsequent increase of population exceed in number the 100,000 mark, still the act could not apply to them because Indianapolis alone had a population of over 100,000 by the last United States census at the time of passage of the act.

Hence the legislative intent is made clear and undoubted, that the act was designed never to have any effect or operation anywhere in the State outside of the city of Indianapolis, while it purports to be a general act. And yet no one can entertain a reasonable doubt of the constitutionality of the act, not because it purports to be general but because it is on a subject on which the applicability of a general law has been left by the constitution to the exclusive judgment of the Legislature on inquiry into the facts.

This sort of legislation perhaps is the direct fruit of the deep seated error and the erroneous impression produced by Thomas v. Board, etc., supra, while it stood as the exposition of section 23 of article 4, supra, of the constitution.

And this fruit is evil fruit, because it begets the habit in the Legislature of saying what it does not mean and meaning what it does not say. Nay, more, it begets the habit of using every artifice to conceal at least a large part of the legislative intent. That intent is often hard enough to decipher even when the Legislature knew what it intended, and tried to express it in plain and intelligible language.

But when it attempts to conceal its real intent so as to evade a supposed constitutional inhibition out of a laudable desire to pass much needed local laws, it must bring in its train a brood of evils in construing an act so couched in evasive terms and language that are almost interminable in their effect.

The most amusing attempt of the kind that has fallen under our observation is found in the act approved December 22, 1858, which was designed to be supplemental to the general act and the first one enacted under the new constitution for the removal of county seats approved March 2, 1855; the supplemental act being very much like that of 1889 in question here. Acts of 1858, page 32.

The General Assembly of 1853, the first one under the new constitution had passed two special and local acts for the removal of county seats as had been frequently done under the old constitution; one for the removal of the county seat of Clay county and the other for the removal of the county seat of Switzerland county. Acts 1853, pp. 27, 29. It was the former act that was overthrown in Thomas v. Board, etc., supra.

This decision gave rise to the general act of 1855 already referred to, and perhaps to the act supplemental thereto of December 22, 1858, above mentioned.

While the latter act purported to be general, yet there were so many circumstances mentioned in the act which must have concurred before it could apply to any county in the State that it is more than likely that if the State would live a thousand years and the act had continued in force that long, no other county than Perry would ever be so circumstanced as to make the act applicable to it.

The county seat of Perry county was removed to its present location under the provisions of that supplemental act, yet all mention of the name of Perry county was as sedulously avoided in the act as if there had been no such county in the State. And yet it is a well-known historical fact that the members of the body that passed it knew as well as we now know that the act could not have...