Sefton v. Board of Commissioners of Howard County

• Decision Date: 02 April 1903
• Docket Number: 19,929
• Citation: 66 N.E. 891,160 Ind. 357
• Parties: Sefton v. Board of Commissioners of Howard County et al
• Court: Indiana Supreme Court

66 N.E. 891

160 Ind. 357

Sefton v. Board of Commissioners of Howard County et al

No. 19,929

Supreme Court of Indiana

April 2, 1903

From Howard Circuit Court; W. W. Mount, Judge.

Suit by William W. Sefton against the board of commissioners of Howard county and others, to enjoin the enforcement of a highway assessment. From a judgment for defendants, plaintiff appeals.

Affirmed.

J. C Herron and F. J. Byers, for appellant.

W. R Oglebay and F. S. Oglebay, for appellees.

OPINION

Gillett, J.

This action was instituted by appellant to enjoin the enforcement of a special assessment levied against his land pursuant to the provisions of the act of March 11, 1889 (Acts 1889, p. 433, § 6792 et seq. Burns 1901). A demurrer was sustained to the complaint, and final judgment rendered in favor of appellees.

Counsel for appellant contend that the act mentioned was repealed by implication by the act of March 6, 1899 (Acts 1899, p. 468, § 6914 et seq. Burns 1901), and it is admitted that if the former act is still in force the complaint is insufficient.

The subject-matter of the two acts is the same; both authorize the construction and improvement of county-line highways. The later act is affirmative in its terms. Many of its provisions contain the same language as the former act, thus showing that it was drafted, and presumably considered by the General Assembly, with the first act in mind, but the later enactment does not contain a repealing clause. There are, however, some marked differences between the two acts, notably in that the first act provides for the levying of special assessments against real estate, based on special benefits, in districts comprehending all the real estate within two miles of such improvements, while the later act provides for the submission of the proposition to a vote of the townships, and contemplates the levying of a general tax in such townships.

Can it be said that in these circumstances there has been a repeal by revision? Repeals by implication are not favored. The courts, however, only seek the legislative will in determining whether there has been a repeal, and the conclusion that there was such a purpose may follow from a revision, if it appears that the subsequent statute was intended to prescribe the only rule that is to govern respecting the subject-matter. Tracy v. Tuffly, 134 U.S. 206, 10 S.Ct. 527, 33 L.Ed. 879; Sutherland, Stat. Const., § 154; 23 Am. & Eng. Ency. Law, 487.

Two affirmative statutes, without inconsistent provisions, may run in parallel lines, and the courts will incline, in the absence of a provision for a repeal, to regard the later enactment as merely cumulative or auxiliary, unless it appears that the object as well as the subject-matter of the two enactments is the same. United States v. Claflin, 97 U.S. 546, 24 L.Ed. 1082; 23 Am. & Eng. Ency. Law, 482, and cases cited.

We have before us two provisions for the construction and improvements of highways in certain cases. The undertaking is public in its character. In the first statute the legislature has in effect declared that, where the circumstances mentioned in that act exist, the real estate within the district is to be...