Monical v. Heise

• Citation: 94 N.E. 232,49 Ind.App. 302
• Decision Date: 09 March 1911
• Docket Number: 7,831
• Parties: MONICAL ET AL. v. HEISE ET AL
• Court: Court of Appeals of Indiana

94 N.E. 232

49 Ind.App. 302

MONICAL ET AL. v. HEISE ET AL

No. 7,831

Court of Appeals of Indiana

March 9, 1911

Rehearing denied May 9, 1911. Transfer denied January 26 1912.

From Orange Circuit Court; Thomas B. Buskirk, Judge.

Suit by John W. Monical and others against Edward M. Heise and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Brooks & Brooks, for appellants.

Perry McCart, Bernard Korbly and Willard New, for appellees.

OPINION

LAIRY, J.

This was a suit for injunction brought by appellants to restrain appellees Heise, Shirley and Carter, constituting the school board of the town of Orleans, and also the board in its corporate capacity, and others, from issuing a series of bonds to assist in erecting a schoolhouse, also to enjoin them from applying the proceeds of said bonds in erecting said school building, and also to forbid them from contracting for the erection of said building.

The complaint is in three paragraphs. There was an appearance by all the defendants when Shirley was substituted for one of the original defendants, Hollowell, whose term of office had expired. Appellees filed a motion to strike out parts of the several paragraphs, which motion was sustained. Demurrers were filed, and sustained, to each paragraph of the complaint. Appellants excepted to these rulings of the court, and refused to plead further, judgment was then rendered against them, and from that judgment this appeal is prosecuted.

The complaint proceeds on the theory that the town of Orleans had, at the time the complaint was filed, a population of 1,250 persons, according to the last United States census, and that the board of school trustees of said town were proceeding to issue and sell bonds for the purpose of raising money to be used in paying the expenses of erecting a school building in said town, without first having filed with the board of trustees of said town a report, under oath, showing the actual or estimated amount required to pay for said building, or the ground upon which it was to be erected, and without the passing of any resolution by the board of trustees of said town approving of the erection of said building or the sale of said bonds.

The facts are differently presented in each paragraph of complaint, but the same question is presented by each. Appellant claims that the school board of a town of the size of Orleans cannot proceed to issue and sell bonds for the purpose named in the complaint unless it proceeds in accordance with the acts of 1907 (Acts 1907 p. 655, §§ 1-4, §§ 6556-6559 Burns 1908, and Acts 1907 p. 576, §§ 1-6, §§ 6565-6570 Burns 1908). The trial court held that the act of 1909 (Acts 1909 p. 100), amending § 1 of the act of 1903 (Acts 1903 p. 350, § 6572 Burns 1908), had the effect to repeal the two acts of 1907, supra, relied on by appellant. If the construction placed by the trial court upon these various acts is correct, there was no error in sustaining the demurrer to the several paragraphs of the complaint.

The act of 1903, supra, is a general act applicable to the school boards of all cities incorporated under the general laws of the State and to the school boards of all incorporated towns. This act contained no provision requiring a school board to file any petition or obtain any order or resolution of the common council of a city or the board of trustees of a town before proceeding to issue and sell bonds.

The two acts of 1907, supra, are both special, one of them applying to all cities or incorporated towns having a population of less than five thousand inhabitants, and the other applying to all incorporated towns having a population of not more than two thousand inhabitants. Both of these acts contain provisions in reference to the filing of a petition by the board of school trustees of such city or town with the common council of such city, or the board of trustees of such town, and to the passing of a resolution by such common council or board of trustees approving the issue and sale of bonds for the purposes therein provided.

The act of 1909, supra, amends § 1 of the act of 1903, supra. Such act of 1909 applies to all cities of Indiana except cities of the first and second class, and to all incorporated towns in the State. The provisions of this section are practically the same as those of said § 1 of the act of 1903, except that the provisions of said act of 1903, in reference to submitting the question of incurring the school debt to the electors of the city or town, in case the debt proposed to be incurred exceeds three-fourths of one per cent, is omitted from the amended section. The amended section contains no provision for a petition to the common council of a city or the board of trustees of a town, or for any resolution of such common council or town board authorizing the sale of bonds or other evidence of indebtedness.

Does the act of 1909, supra, amending § 1 of said act of 1903, repeal by implication the two special acts of 1907? It is a canon of statutory construction that a later statute, general in its terms, and not expressly repealing an earlier statute, will ordinarily not affect the special provisions of such earlier statute. Lewis's Sutherland, Stat. Constr. § 274; Potter's Dwarris, Stat. 154; Waterworks Co. v. Burkhart (1872), 41 Ind. 364; Walter v. State (1886), 105 Ind. 589, 5 N.E. 735.

"A later law which is merely a reenactment of a former does not repeal an intermediate act which has qualified and limited the first one, but such intermediate act will be deemed to remain in force, and to qualify or modify the new act in the same manner as it did the first." Lewis's Sutherland, Stat. Constr. § 273. See, also, Collins Coal Co. v. Hadley (1906), 38 Ind.App. 637, 75 N.E. 832; Blain v. Bailey (1865), 25 Ind. 165; Powell v. King (1899), 78 Minn. 83, 80 N.W. 850; Small v. Lutz (1902), 41 Ore. 570, 67 P. 421.

The foregoing rules of construction are well recognized, and it is insisted by appellant that they apply to the statute here under consideration. There can be no question that these rules apply in cases where the later act is general in its terms. The reason which has been given for the application of these rules is, that in passing a special act the legislature has its attention directed to the special case which the act was made to meet; and it will not be considered that in passing a later general act it had the special circumstances in mind which induced the passage of the provisions of the special act. If, on the other hand, the later act is special and not general in its nature these rules do not apply.

This brings us to a consideration of the question as to whether § 1 of the act of 1909, supra, which amended § 1 of the act of 1903,...