Payne v. Buchanan, 29563

Decision Date14 May 1958
Docket NumberNo. 29563,29563
PartiesJames PAYNE et al., Appellants, v. Warren BUCHANAN et al., Appellees.
CourtIndiana Supreme Court

Sidney L. Berger, Evansville, for appellants.

Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, Baker & Daniels, Indianapolis, Edwin Steers, Atty. Gen., for appellees.

ACHOR, Judge.

Appellees assert that the majority opinion repudiates certain principles long established by this court, as follows:

'1. Legislative Intent: When a statute contains a clause repealing all parts of prior acts in conflict therewith, the Legislature's clear recognition of existing conflict and the intent to supersede, which are reflected by that clause, should be given effect;

'2. Statutory Construction: A later specific act repeals those portions of a prior general act to the extent of any conflict; and

'3. Construction of Pleadings in Special Statutory Proceeding: In all special statutory proceedings, the complaint must specifically allege each of the statutory jurisdictional prerequisites or no jurisdiction in conferred on the reviewing court.'

We find no serious fault with statements of principles '1' and '2' nor do we consider that the opinion in this case has repudiated these principles. Our problem, however, does not involve the statement of these principles, but rather the effect of the application of these principles to the facts involved. The general rule regarding the effect of express general repealing clauses has been stated as follows:

'An express general repealing clause to the effect that all inconsistent enactments are repealed, is in legal contemplation a nullity. Repeals must either be expressed or result by implication. A general repealing clause cannot be deemed an express repeal because it fails to identify or designate any act to be repealed. It cannot be determinative of an implied repeal for it does not declare any inconsistency but conversely, merely predicates a repeal upon the condition that a substantial conflict is found under application of the rules of implied repeals. If its inclusion is more than mere mechanical verbiage, it is more often a detriment than an aid to the establishment of a repeal, for such a clause is construed as an express limitation of the repeal to inconsistent acts.' Sutherland Statutory Construction [3rd Ed.], Vol. 1, § 2013, pp. 466-468.

Appellees assert that the Acts of 1929 [§ 54-430, Burns' 1951 Repl.] and 1933 [§ 54-203] are in clear conflict as related to the filing of appeals in all rate cases in that the earlier Act provides a limitation of 60 days for appeals, whereas the latter Act limits such proceedings to a period of 30 days. Therefore, appellees assert that the repealing clause of the latter act repeals the time limitation of the former act. Appellees are right to the extent, and only to the extent, that the two Acts apply both to the same subject matter and to the same parties. The former Act [§ 54-429] in enumerating the parties to whom it was applicable specifically named associations and corporations as such parties. However, the latter Act [§ 54-203] in enumerating the parties to whom the Act applied clearly omitted associations and corporations. We must assume that this omission was intentional and therefore that the repeal by conflict expressed in the latter Act was not intended to apply to these appellants, an association and a corporation, who were specifically named in the former Act and not included in the latter.

We next consider the third statement of principle above stated by appellees, from which established principle appellees assert that this court, in its opinion, makes a serious departure. In support of their position, that in all statutory proceedings all jurisdictional facts must be specifically pleaded, appellees rely upon statements contained in several cases decided by this court. Admittedly, there is no clear uniformity in the reported statements upon this proposition, therefore it seems necessary to review the cases and clarify this rule of pleading. Appellees first quote from the case of State ex rel. Ayer v. Ewing, 1952, 231 Ind. 1, at page 14, 106 N.E.2d 441, 446, as follows:

'* * * in any special statutory proceedings whatever, all jurisdictional averments required by the statute under which the proceeding is based must be contained in the petition or the court in which it is filed, as well as any court to which it may come on change of venue or appeal will be without jurisdiction in the case, except to enter an order dismissing the case.' (Our italics.)

[238 Ind. 256] And at page 11 of 231 Ind., at page 445 of 106 N.E.2d, supra:

'It has been well stated by competent authority that '* * * impeachment proceedings are highly penal in their nature and generally governed by rules of law applicable to criminal causes, so that provisions of statutes and of the constitution on the subject of procedure therein are to be construed strictly. * * *' 67 C.J.S. Officers, Impeachment § 68, p. 295, CL. (c) Procedure, pp. 296, 297.'

However, it is to be noted that in the above impeachment proceedings, in which the rules of procedure in criminal cases is made to apply, the court merely states that all jurisdictional averments required by the statute must be present in the complaint. It does not state the degree of particularity with which facts must be alleged in all statutory proceedings.

Next appellees quote from the case of Touhey v. City of Decatur, 1911, 175 Ind. 98, 102, 93 N.E. 540, 542, 32 L.R.A.,N.S., 350, in which the court, in a statement not necessary to the decision said:

'It is well settled that when any one seeks the benefit of a statute or to enforce a statutory right or liability he must by allegation and proof bring himself clearly within its provisions. * * *' (Our italics.)

To like effect, appellees cite the case of Sherfey v. City of Brazil, 1938, 213 Ind. 493, 504, 13 N.E.2d 568, 573, in which the court stated, that it is essential for the pleader who wishes to secure the benefit of a statute to 'bring himself clearly within its terms.' (Our italics.)

We believe these cases correctly state the rule. The question then is, with what particularity must jurisdictional facts be alleged in order to clearly bring a party within the provisions of the statute? It is appellees' position that such jurisdictional facts must be alleged with such absolute exactitude as to exclude every possibility of facts to the contrary, and, in support of this position, they cite the following two cases. In the most recent case of State ex rel. Wever v. Reeves, 1951, 229 Ind. 164, 96 N.E.2d 268, cited by appellees, the court merely held that failure to state whether appellant brought the action in contest of election as a party-plaintiff or as a prospective party-defendant, as expressly required by statute, 1 was jurisdictional. That case is of no help in deciding the issue in the case before us. In the earlier case of Martin v. Schulte, 1932, 204 Ind. 431, 435, 182 N.E. 703, 705, cited by appellees, this court stated:

'Since appellant's right to contest the nomination of appellee depends on statutory affirmance, he must assume the burden of the well-settled rule, that one who seeks the benefit of a statute must, without the aid of any intendment, bring himself strictly within its spirit as well as its...

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