Shea v. The City of Muncie
| Decision Date | 23 February 1897 |
| Docket Number | 18,008 |
| Citation | 46 N.E. 138,148 Ind. 14 |
| Parties | Shea v. The City of Muncie |
| Court | Indiana Supreme Court |
Rehearing Denied May 20, 1897.
From the Delaware Circuit Court.
Affirmed.
Gregory Silverburg & Lotz, W. L. Ball and J. G. Leffler, for appellant.
Warner & Brady, for appellee.
The appellee sued the appellant before the mayor of the city of Muncie to recover the penalty provided for the violation of a certain ordinance of said city with which appellant was charged in the complaint.
The plaintiff recovered judgment before the mayor, and the defendant appealed to the circuit court, where another trial resulted in a verdict and judgment of one dollar against the defendant over his motion for a new trial. The circuit court also overruled a demurrer for want of sufficient facts to the complaint, and overruled a motion in arrest of judgment by the appellant.
The errors assigned call in question the abovenamed rulings.
The ordinance, with a violation of which the complaint charges the appellant, reads as follows:
George W. Cromer, Mayor.
"Attest: F. A. Elrod, Clerk."
The complaint, in substance, charged the appellant with having, on the 24th day of January, 1896, at said city and Delaware county, Indiana, unlawfully violated said ordinance, giving the number of the sections charged to have been violated, with the date of its adoption, by then and there selling to John Max and David Spangler, at and for the price of ten cents, in and upon certain premises particularly described, within the residence portion of said city, and not within the business portion thereof, certain intoxicating liquor, to-wit, beer to be used and drunk in and upon said premises. But the complaint did not set out a copy of the ordinance as it only need recite the number of section or sections charged to have been violated, with the date of its adoption. Section 3501, Burns' R. S. 1894 (3066, R. S. 1881); City of Huntington v. Pease, 56 Ind. 305.
It is contended by the appellee that, inasmuch as the ordinance does not appear in the complaint, that its validity cannot be presented by the demurrer to the complaint. There is no other objection to the complaint pointed out in the appellant's brief. But as the validity of such ordinance is conceded by the appellee to be necessarily involved by the evidence on the motion for a new trial, we will proceed to determine its validity without deciding whether the question of its validity was raised by the demurrer or not. Indeed, that question, once settled, is decisive of about every question presented on this appeal.
But, preliminary to that question, we are confronted by another question raised by the appellee's counsel. They contend that the evidence is not in the record, because there is no certificate by the trial judge that the bill of exceptions contains all the evidence. The longhand manuscript purported to contain the evidence, and immediately following such evidence is the statement that "this was all the evidence given in the cause," and then follows the shorthand reporter's certificate, and then follows what purports to be instructions, and then the judge's certificate and signature. The case of Rosenbower v. Schuetz, 141 Ind. 44, 40 N.E. 256, cited by appellee's counsel in support of their contention, was a case where the only statement that the bill contained all the evidence was in the reporter's certificate. But the case of McCormick v. Gray, 114 Ind. 340, 16 N.E. 787, was just such a case as this, as to the point now in question, and adhering to that case, we hold that it sufficiently appears that the bill contained all the evidence. The objection to the oath administered to the stenographer, as to whether it was to him, as official reporter, or to truly report that case, is without substantial merit.
It is conceded by appellant's learned counsel that if the legislature could delegate authority and power to the city to pass or enact such an ordinance, that it has done so by an act approved March 9, 1895, to amend section 3106, R. S. 1881, providing for the incorporation of cities and prescribing their powers in the following language: Acts of 1895, p. 182.
The first objection to the ordinance is, that it is too uncertain and indefinite as to the boundaries of the localities designated "business portion" and "residence portion" of said city. It will be observed that the ordinance is as definite and certain as the statute.
It is not insisted that the statute is void or inoperative for uncertainty or indefiniteness, and we do not think it is. But it is strenuously insisted that the ordinance is void for such uncertainty. It is insisted that the ordinance, or some ordinance, should have first defined and prescribed the boundaries of the residence portion of said city. We do not decide that that might not have been properly done. The only difference between that course and the course pursued is, that the question of fact involved as to the true boundaries of such residence portion of said city was left to be determined in a court of justice, where the parties interested pro and con could be heard by testimony instead of the legislative department of the city hearing the evidence where no parties could have been heard to controvert the facts before the common council.
"An ordinance is not void for want of clearness of expression or on account of a difficulty in construing or applying its provisions." Horr & Bemis Munic. Ordinances, section 193. To the same effect is Nealis v. Hayward, 48 Ind. 19.
"An ordinance is sufficient which follows the words of an express power; for instance, under a power to license the sale of 'small ware,' an ordinance forbidding the sale of 'small ware' on the streets, and not defining what constitutes 'small ware' is definite enough." Horr & Bemis Munic. Ordinances, section 78.
The next objection to the statute in question is, that it was repealed by implication in the act known as the "Nicholson Law," approved March 11, 1895, being an act to better regulate and restrict the sale of intoxicating liquors. The repeal of statutes by implication is not favored by the law, and where two statutes are enacted, as in this case, at the same session of the legislature, they should be construed together, if possible, but if they be irreconciliable, the later supersedes the earlier. Wright v. Board, etc., 82 Ind. 335. And where two statutes may well stand together it is the duty of the courts to construe them in pari materia. City of Madison v. Smith, 83 Ind. 502; Jeffersonville, etc., R. R. Co. v. Dunlap, 112 Ind. 93; Robinson v. Rippey, 111 Ind. 112, 12 N.E. 141. Repeal by implication occurs only where there is an irreconciliable repugnancy between two statutes. Carver v. Smith, 90 Ind. 222.
No irreconciliable repugnance between the two statutes has been pointed out to us, nor have we been able to discover any.
It is next urged that the legislature, in the passage of the so-called "Nicholson Law," approved March 11, 1895, have recognized the fact that the subject-matter embraced in that act could be embraced in a general law, and be made applicable to all the people and all the territory of the State of Indiana.
And counsel contend that though the subject of both acts does not fall under section 22, article 4, of the state constitution, absolutely prohibiting local or special legislation on the subjects therein specified, yet that the act of the legislature in enacting the last of said two acts proves that the subject of both acts, being, as is claimed, one and the same, is one where a general law can be made applicable, and hence the later of the two acts, being local, violates section 23 of said article. This is what might be called a farfetched argument.
We do not agree with the assumption of counsel that the two acts are upon one and the same subject, even if that would enable us to say that the subject of the last was one upon which a general law...
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