Robinson v. Rippey

• Decision Date: 23 May 1887
• Citation: 111 Ind. 112,12 N.E. 141
• Parties: Robinson v. Rippey and others.
• Court: Indiana Supreme Court

111 Ind. 112

12 N.E. 141

Robinson

v.Rippey and others.

Supreme Court of Indiana.

May 23, 1887.

Appeal from circuit court, Clinton county.Davidson & Dice and James N. Sims, for appellant. Bayless & Russell and Kent & Merritt, for appellees.

Elliott, J.

The controlling question in this case is whether the gravel road law of March 3, 1877, was repealed by the act of April 8, 1885. The latter act does not contain any repealing clause, but, on the contrary, expressly asserts an intention not to repeal any former law; for in section 20 it is written: “This act is not intended to repeal any law now in force for the construction of gravel or macadamized roads.” Acts of 1885, 162. There are very material differences in the provisions of the two acts; in many respects they are inconsistent, while in others they are substantially the same. Each act, taken in itself, constitutes a complete scheme or system for the construction of gravel roads, and for the method of procedure in making and collecting assessments.

The question presented is a very perplexing one, but, after the most careful study we have been able to give it, we have reached the conclusion that it was the intention of the legislature to create two systems, and not to repeal the former law. The fact that both of these statutes are directed to the attainment of the same end does not warrant the conclusion that the latter repeals the former. Statutes constructing two systems for the government of the same subject may both stand. Beals v. Hale, 4 How. 37;Wood v. U. S., 16 Pet. 353;Davies v. Fairbairn, 3 How. 646;Raudebaugh v. Shelley, 6 Ohio St. 316. Mr. Bishop thus states the rule: “Two or more separate laws may establish the same right, or provide redress for the same wrong. And the person seeking to enforce the right or avenge the wrong, may proceed on the law he chooses.” Bish. Writ. Law, § 163. In the legislation upon the subject of drainage we have an example of the creation of two distinct schemes for the attainment of the same end, and these statutes have been sustained and enforced. Lipes v. Hand, 104 Ind. 503, 1 N. E. Rep. 871, and 4 N. E. Rep. 160; Shaw v. State, 97 Ind. 23;Buchanan v. Rader, Id. 605; Crist v. State, Id. 389; Meranda v. Spurlin, 100 Ind. 380. There is therefore no intrinsic difficulty in maintaining the theory that two systems were created by the legislature, and the fact that the statutes relate to the same subject and seek the same end does not necessarily require it to be held that the later supersedes the earlier. It does not follow that, because the statutes contain similar provisions, the earlier is abrogated, for, if the intention to construct two systems is manifested, the similarity in the provisions of the two statutes will not supply a valid reason for declaring the earlier to be repealed by implication. The principle which controls this phase of the question was decided in Powers v. Shepard, 48 N. Y. 540, for, as the reporter's head-note states, it was there held that “the re-enactment of certain sections of one act in a subsequent one, providing for a different scheme, is not a repeal by implication, of those sections in the first act.” Our own cases give a substantial recognition to this doctrine. Cheezem v. State, 2 Ind. 150;Martindale v. Martindale, 10 Ind. 567;Cordell v. State, 22 Ind. 1;Gorley v. Sewell, 77 Ind. 316-319.

It may perhaps be true that confusion will result from framing two systems for the government of one subject, and that it is an unwise exercise of power; but the wisdom or expediency of a statute is a question for the legislature, and not for the court. Eastman v. State, 109 Ind. 278, 10 N. E. Rep. 97. The courts can do no more than determine the validity of the statute, and, having adjudged it valid, ascertain and enforce the legislative intention. They cannot, as Judge Cooley says, “run a race of expediency with the legislature.”Nor will mere inconvenience worked by the similarity of two statutes justify the courts in declaring that the earlier is impliedly repealed by the later. Waldo v. Bell, 13 La. Ann. 329;Mitchell v. Duncan, 7 Fla. 13; Raudebaugh v. Shelley, 6 Ohio St. 307;State v. Berry, 12 Iowa, 58;Wilson v. Shorick, 21 Iowa, 332.

The addition to an existing system does not necessarily imply its abrogation. In discussing this subject, the supreme court of the United States said: “It is true that exercise of appellate jurisdiction under the act of 1789, was less convenient than under the act of 1867, but the provision of a new and more convenient mode of its exercise does not necessarily take away the old; and that this effect was not intended, is indicated by the fact that the authority conferred by the new act is expressly declared to be in addition to the authority conferred by the former acts. Addition is not substitution.” Ex parte Yerger, 8 Wall. 85-105. In the cause before us the legislature declares that the former act is not repealed, and in the face of that declaration we can no more say than could the court, in the case from which we have quoted, say of the statute there under discussion, that the later act is a substitute for the earlier.

Repeals by implication are not favored. On this subject the supreme court of the United States said: “They are seldom admitted except on the ground of repugnancy, and never, we think, when the former can stand together with the new act.” Ex parte Yerger, supra. If the act of 1885 was silent as to the legislative intent, there would even then be some doubt, under the familiar doctrine stated in the case referred to, whether it would not be the duty of the courts to adjudge that the former statute was not repealed. But, however this may be, in the statute before us there is a broad and express assertion that it was not the intention to repeal any former laws, and we cannot regard that assertion as ineffective and meaningless; we must adjudge that two systems were created, and, as was done in the case cited, hold that the two statutes may stand together.

In Tyson v. Postlethwaite, 13 Ill. 728, it is held that a statute is not repealed by implication where the legislature had no intention to repeal it, and this statement of the law was approved in Blain v. Bailey, 25 Ind. 165. In this instance the legislative declaration of intention is as strong and plain as words could make it, and the courts have no right to disregard the intention so plainly and strongly stated, but they must, if there is any way of doing so, give effect to that intention, and the way in which it can be done is to hold, as we do hold, that two systems were created by the two statutes. If the legislature should, by plain and imperative words in a later act, repeal an earlier one, it may be that a declaration of an intention not to repeal would be fruitless in the event that there was no possible way of maintaining both of the statutes. Bish. Writ. Law, § 41. But there is here a legal way-a way both possible and practicable, and neither unusual nor unreasonable-in which the two statutes may be upheld, and that is, by adjudging that two different systems were created. The case of Deisner v. Simpson, 72 Ind. 435, is to be discriminated from the present for the reason that in that case there was no possible way in which to give effect to the formal declaration of intention, while here the way is open, because it can be adjudged, both on principle and authority, that the legislature has power to create two systems, and that it has done so. In this case there are two distinct systems, each complete in all its parts and capable of practical enforcement; for the frame of the petition, the parties, and the character of the notice will inform the court of the method of procedure adopted, and apprise it of the statute under which the petitioners have elected to proceed. Possibly, as we have already suggested, confusion and evil may result, although this is by no means a necessary consequence, but, if it were, the fault is that of the law-makers, and the remedy is in their hands.

We are not unmindful of the general rule that where an act covers the whole subject-matter of the older law, and contains provisions that cannot be reconciled with it, a repeal will be implied; but, while keeping in mind the rule, we must also keep in mind the principle on which it rests, which is that the enactment of the new statute covering the whole subject is an expression of an intention to repeal the old law. It is obvious that this reason fails where, as here, there is a positive and unequivocal assertion that there is no intention to repeal the older statute; and where the reason of the rule fails, the rule fails. In the face of the express and unequivocal assertion that it is not the intention to repeal any former law, no intention can be implied from the fact that the new statute covers the whole subject. It is difficult to conceive any logical ground upon which an implied intention can be made to rule and overrule an expressed one; and certainly that result cannot be permitted where it can, without violating any legal principle or introducing any novel doctrine, be adjudged that the purpose of the new statute was to create a new system. In this case we cannot declare that the act of 1885 repeals the former law without utterly disregarding the positive words of the statute, and ignoring the familiar rule that repeals by implication are not favored, and that,...