State ex rel. Devening v. Bartholomew

• Decision Date: 23 June 1911
• Docket Number: No. 21,866.,21,866.
• Parties: STATE ex rel. DEVENING v. BARTHOLOMEW.
• Court: Indiana Supreme Court

176 Ind. 182

95 N.E. 417

STATE ex rel. DEVENING

v.BARTHOLOMEW.

No. 21,866.

Supreme Court of Indiana.

June 23, 1911.

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Mandamus by the State, on the relation of Philip Devening, against Pliny W. Bartholomew, as Judge of Room 5 of the Superior Court of Marion County. From a judgment sustaining a demurrer to the complaint, relator appeals. Reversed and remanded.Elmer Bassett, David L. Wilson, Wray & Campbell, Herbert C. Jones, Frank H. Wolfe, and Hord & Adams, for appellant. Gavin, Gavin & Davis, Henry Warrum, and Sullivan & Knight, for appellee.

MONKS, J.

This action for mandate was brought by the relator under the provisions of an act approved March 6, 1911 (Acts 1911, pp. 541-543), to compel appellee to appear and preside over the Shelby superior court; it being alleged in the complaint that holding said court by appellee is specially enjoined by an act approved March 1, 1911 (Acts 1911, pp. 103-110), and that such duty results from the fact that appellee holds the office of judge of room No. 5 of the superior court of Marion county. Appellee's demurrer for want of facts was sustained to the complaint, and, the relator failing and refusing to plead further, judgment was rendered in favor of appellee. The errors assigned call in question the action of the court in sustaining said demurrer.

Said demurrer for want of facts is governed by an act approved March 4, 1911 (Acts 1911, p. 416), which act amended sections 85 and 89 of “An act concerning proceedings in civil cases,” approved April 7, 1881, Acts 1881, p. 255, being sections 344, 348, Burns 1908.

[1] Under the proviso in section 2 of said act of 1911, the defects in a complaint not specifically stated and pointed out in the memorandum, which is a part of the demurrer, are waived by the demurring party, and he cannot thereafter question the same for any defect not so specified. Said memorandum should contain only the reasons why the complaint is insufficient, stated in plain and concise language, without repetition, and no argument to sustain the same should be included therein. Any argument upon such demurrer, if in writing, must be upon a separate paper and is no part of the demurrer. Reasons stated in the memorandum should be numbered or otherwise designated so that in their consideration they can be referred to by number or such other designation.

It is the better practice to set out said reasons immediately following the cause of demurrer on the same paper, and that the party filing the demurrer for want of facts or his counsel sign the same at the close of the reasons set forth, so that the cause of demurrer and the reasons stated why the complaint is insufficient constitute one instrument or writing and may be signed and filed as one pleading.

[2] It is first insisted by appellant that the act approved March 1, 1911 (Acts 1911, pp. 103-110), entitled “An act defining the judicial district of the Shelby and Marion superior court, fixing the time and place of holding courts therein, providing for the jurisdiction of said courts and otherwise regulating the manner of holding and length of terms of the sessions of said courts in each of said counties,” etc., is unconstitutional and void because the subject of the act is not expressed in the title as required by section 19 of article 4 of the Constitution, which reads as follows: “Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” This contention is based upon the claim that the word “defining,” as used in said title, when taken in its plain and ordinary sense, as required by section 240m, Burns 1908, does not mean “create” or “establish,” and that therefore “the part of the act which purports to create the Shelby and Marion superior courts is void because not expressed in the title of the act.”

This is not the first time the Legislature has used the word “define” or “defining” instead of the word “create” or “establish,” in an act creating new judicial districts. Acts 1885, p. 119; Acts 1889, p. 50; Acts 1905, p. 119.

The word “constitute,” instead of the word “create” or “establish,” has also been used in the titles of acts creating new judicial circuits. Acts 1867, p. 84; Acts 1871, p. 63.

The act approved March 6, 1873 (Acts 1873, p. 87), which abolished the common pleas courts and established a number of new judicial circuits, did not have the word “create” or “establish” in its title.

The title of said acts reads as follows: “An act to divide the state into circuits for judicial purposes, fixing the time of holding courts therein, abolishing the courts of common pleas, and transferring the business thereof to the circuit courts, and providing for the election of judges and prosecuting attorneys in certain cases.”

By an act entitled “An act concerning the courts in the counties of Howard, Tipton, Grant and Delaware declaring an emergency,” approved March 1, 1909 (Acts 1909, p. 79), the Legislature abolished the Howard superior court, established the Delaware superior court, and created a new judicial circuit consisting of the county of Howard.

The constitutionality of none of these acts has been assailed on the ground that the word “create” or “establish” was not used in the title.

In Board, etc., v. Albright, 168 Ind. 564, 568, 81 N. E. 578, 579, it was said by the court, in response to a contention that an act was in violation of said section 19 of article 4 of the Constitution, that: “It is quite permissible to use the details of a title where available, to grasp the general subject to which an act related. Maulse Coal Co. v. Partenheimer (1900) 155 Ind. 100 [55 N. E. 751, 57 N. E. 710];Isenhour v. State (1901) 157 Ind. 517 87 Am. St. Rep. 228. A standard text-book states: ‘The subject of an act may be expressed generally in the title, or spelled out from details, and occasionally from details which are independent and unconnected except through some general subject as cousins-german are related through a common ancestor. According to the authorities, the general subject need not appear in the title, if it is clearly disclosed or readily inferred from the details expressed.’ 1 Lewis' Sutherland, Stat. Constr. (2d Ed.) § 134.” Central Union Telephone Co. v. Fehring, 146 Ind. 189, 45 N. E. 64.

As was said in Western Union Telegraph Company v. Braxton, 165 Ind. 165, 168, 74 N. E. 985, 986: “In the interpretation of the title we must look to the body of the act, and in construing the body we just look to the title; and if it appears from both that all the provisions of the act are fairly referable to one general subject, and that subject is clearly expressed in the title, the act is valid, though there may be more than the general subject expressed therein. 1 Lewis' Sutherland, Stat. Constr. (2d Ed.) § 131, and cases cited.”

In Hargis v. Board, 165 Ind. 194, 195, 196, 73 N. E. 915, 916, we said: “That the title of an act is to receive a liberal construction is necessary to sustain the legislative intent. If the words used in a title, taken in any sense or meaning they will bear, are sufficient to cover the provisions of the act, the act will be sustained even though such meaning may not be the most common meaning of such words. These rules, however, are to be used to effectuate, not to defeat, the legislative intent.” 26 Am. & Eng. Encyc. Law (2d Ed.) 583-590; 1 Lewis' Sutherland, Stat. Constr. (2d Ed.) §§ 121, 127, 129, 134; Maule Coal Co. v. Partenheimer (1900) 155 Ind. 100, 106, 107, 55 N. E. 751, 57 N. E. 710, and cases cited; State ex rel. v. Roby (1895) 142 Ind. 168, 184-188, 41 N. E. 145, 33 L. R. A. 213, 51 Am. St. Rep. 174;State v. Arnold (1895) 140 Ind. 628, 38 N. E. 820;Walker v. Dunham (1861) 17 Ind. 483. “The courts will not resort to a critical construction of the title in order to hold a statute unconstitutional. On the contrary, the language of the title is in all cases given a liberal interpretation, and the largest scope accorded the words employed that reason will permit in order to bring within the purview of the title all the provisions of the act.” 26 Am. & Eng. Ency. Law (2d Ed.) 583; Clare v. State, 68 Ind. 17, 25, and cases cited; Mull v. Indianapolis, etc., Co., 169 Ind. 214, 222, 81 N. E. 657.

To “define” is “to fix, establish, or prescribe authoritatively.” 2 Cent. Dic. p. 1053, “Define,” 2; Robert J. Boyd, etc., Co. v. Ward, 85 Fed. 27, 28 C. C. A. 667, 675.

The word “define” is frequently used in legislation to mean create, establish, enlarge, or extend. In re Fourth Judicial District, 4 Wyo. 133, 137, 32 Pac. 850, and cases cited; People v. Bradley, 36 Mich. 447; Commissioners v. Bailey, 13 Kan. 607, 609; State v. Commissioners, 41 Kan. 630, 634, 21 Pac. 601;State v. Burr, 16 N. D. 581, 113 N. W. 705;State v. Ely, 16 N. D. 569, 113 N. W. 711, 14 L. R. A. (N. S.) 638;Walters v. Richardson, 93 Ky. 374, 20 S. W. 279; Gould v. Hutchings, 10 Me. 145, 154.

In State v. Bradley, supra, in construing the word “define” as used in the title of an act, it is said: “While the word ‘define’ may be, and frequently is, used in the sense and for the purpose claimed, and while we might concede such to be the general and more popular use of the word, yet it is not used exclusively in such a sense. It has a broader and different meaning. It is frequently used in the titles of acts, and but seldom in the narrower sense, or as merely defining powers previously given. An examination of our session laws will show that acts have frequently been passed, the constitutionality of which have never been questioned, where the powers and duties conferred could not be considered as merely explaining, or making more clear, those previously conferred or attempted...