State ex rel. 1625 E. Washington Realty Co. v. Markey

• Decision Date: 30 April 1937
• Docket Number: 26846.
• Citation: 7 N.E.2d 989,212 Ind. 59
• Parties: STATE ex rel. 1625 E. WASHINGTON REALTY CO. v. MARKEY, Judge.
• Court: Indiana Supreme Court

7 N.E.2d 989

212 Ind. 59

STATE ex rel. 1625 E. WASHINGTON REALTY CO. v. MARKEY, Judge.

No. 26846.

Supreme Court of Indiana

April 30, 1937

Carl E. Stillwell, of Indianapolis, for appellant.

Samuel J. Mantel and C. Severin Buschman, both of Indianapolis, for appellee.

HUGHES Judge.

It appears that on the 19th day of March, 1937, one Mildred B Pearson filed her complaint for a judgment in the sum of $150 upon a preferred stock certificate and for the appointment of a receiver, in the superior court of Marion county, room 1 cause No. A-92806. That thereafter on the 22d day of March 1937, the relator herein filed with the clerk of the superior court of Marion county, Ind., its affidavit for change of judge on account of the bias and prejudice of said judge and objecting to the Honorable Joseph T. Markey, judge from whom the change of venue was taken, himself selecting the judge or submitting a list of names from whom a judge may be selected to try the case, all pursuant to chapters 85 and 290 of the General Assembly of 1937.

On the 22d day of March, 1937, the Honorable Joseph T. Markey, as judge of said court, made and signed the following order:

'Comes now the Court and it having been called to the attention of the Court that an affidavit for change of venue from the judge has been filed herein pursuant to section 1, chapter 85 of the Acts of the General Assembly of Indiana, for the year 1937;

'And the Court having examined said affidavit and being cognizant of the fact that a question has been raised in the Supreme Court of this State as to the validity and constitutionality of this Act, the Court now finds that the Clerk of this Court should be directed and ordered to not certify such affidavit or facts to the Clerk of the Supreme Court until further order of this Court.'

On the 29th day of March, 1937, the relator filed in this court a petition for a writ of prohibition to be issued against the superior court of Marion county, room 1, and Joseph T. Markey as judge of said court, to restrain them from making any further orders in said cause and from enforcing the provisions of the order heretofore made. A temporary writ of prohibition was issued and a response has been filed by the Honorable Joseph T. Markey as judge of said court.

It appears that the affidavit for a change of judge filed by the relator Realty Company was in proper form and sufficient as provided for in chapters 85 and 290 of the General Assembly of 1937. The first part of the affidavit went to the bias and prejudice of the judge as provided for in chapter 290, and the latter part went to the objection of the judge, himself selecting a judge or submitting a list from which to select a judge, as provided for in chapter 85.

The affidavit for the change of judge was executed by Samuel H. Creighton, as secretary-treasurer of the Realty Company. Some contention is made that he had no authority to execute the affidavit. We think there is no merit to this contention and cite the case of Fidelity & Casualty Co. v. Carroll (1917) 186 Ind. 633, 637, 117 N.E. 858, 859, where it is said: '* * * the affidavit [for a change of venue] required by the statute must be made by an executive or administrative officer of the corporation, such as the president, vice president, secretary, or treasurer, and not by an agent or attorney.'

It is further contended that chapter 85 does not apply to civil cases and that there are no provisions in said act relating to the method of submitting a list of persons to act as judges in civil cases or in selecting a judge from said list.

It must be conceded that said chapter applies to criminal cases, and we think it also applies to civil cases. The title of the act contained in chapter 85 is as follows: 'An Act concerning proceedings in criminal or civil cases and to secure the impartial selection of judges in criminal or civil cases, and declaring an emergency.'

It cannot be questioned that the title is broad enough to cover both criminal and civil cases. It expressly includes both. The first part of section 1 includes both civil and criminal cases. It says: 'That if the prosecuting attorney or plaintiff or the defendant in any criminal or civil case shall include in his affidavit. * * *'

It later uses the language: '* * * it shall be the duty of the clerk of said court where said criminal case is pending. * * *'

Clearly, there is an omission of the word 'civil' in connection with the word 'criminal.' In two other places in the body of the act the phrase 'criminal case pending' is used, but it cannot be doubted that the word 'civil' was intended to be used in connection with the word 'criminal,' thus making the act apply to civil or criminal cases as provided for in the title of the act, and in other parts of the act. Other language of the act uses the language: '* * * or a member of the bar of the county where said action is pending,' which applies to either a civil or criminal action.

We concede that the act is not drawn in concise language and it is inexcusable on the part of the members of the Legislature to permit an act to be worded in such a confused manner when plain language could have been used, so that there would have been no doubt of its meaning. It is our duty, however, to construe the act and determine, if we can, its meaning. As said in the case of State ex inf. Crow v. Street Ry. Co., 146 Mo. 155, 47 S.W. 959, 961: 'A statute cannot be held void for uncertainty, if any reasonable and practical construction can be given to its language. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible of different interpretations, will not render it nugatory. Doubts as to its construction will not justify us in disregarding it. It is the bounden duty of the courts to endeavor, by every rule of construction, to ascertain the meaning of, and to give full force and effect to, every enactment of the general assembly not obnoxious to constitutional prohibitions.'

In construing an act, we must look both to the title and the body of the act. We think the title of the act, when considered with the body, gives a clear idea of the intention of the Legislature.

As said in Steiert v. Coulter (1913) 54 Ind.App. 643, 102 N.E. 113, 117, 103 N.E. 117: 'If the meaning of an act is doubtful, the title, if expressive, may serve the purpose of removing the doubt either by extending the purview of the body of the act or by restraining or limiting it to the evident intention of the Legislature.'

There can be no question here that the title is expressive. It is clear that it meant the act to apply to both civil and criminal cases. To hold that it is not applicable to civil cases would contradict the evident intent of the Legislature, and if two constructions are possible, that one should be adopted which makes effectual, rather than one which defeats, the purpose of the act. Steiert v. Coulter, supra.

The case of Feigel v. State (1882) 85 Ind 580, presents a rule of construction of statutes, which is applicable here. The title of the act considered in that case was: 'An Act concerning proceedings in...