State ex rel. Nicely v. Wildey

• Decision Date: 25 October 1935
• Docket Number: 26595
• Citation: 197 N.E. 844,209 Ind. 1
• Parties: STATE ex rel. NICELY v. WILDEY et al
• Court: Indiana Supreme Court

197 N.E. 844

209 Ind. 1

STATE ex rel. NICELY v. WILDEY et al

No. 26595

Supreme Court of Indiana

October 25, 1935

Original action for writ of prohibition by the State, on the relation of Zula Nicely, to prohibit the Jennings circuit court from compelling relatrix to deliver possession of office of township trustee to Morris Wildey, and others wherein, on filing of petition, an alternative writ was issued.

Temporary writ dissolved, and petition denied.

See also (Ind. Sup.) 197 N.E. 848.

Montgomery & Montgomery, of Seymour, for appellant.

Schnaitter & Perry, of Madison, for appellee.

OPINION

FANSLER, Judge.

This is an original action for a writ of prohibition. On the filing of the petition, an alternative writ issued.

It appears from the petition that the relatrix was in June 1931, appointed township trustee to fill a vacancy for the remainder of a term ending January 7, 1935; that she qualified and took possession of the office; that at the general election in November, 1934, the relatrix was a candidate for re-election, and that the respondent Wildey was also a candidate; that the board of election canvassers declared the respondent Wildey had received more votes for the office than relatrix; that relatrix filed an action to contest the result as declared by the canvassers; that she filed her official bond for the new term, which was approved, took the oath of office, and has continued in possession of the office as trustee; that upon the filing of her complaint, respondent Wildey answered, a trial was had, and, on the 29th day of May, 1935, there was a finding and judgment in favor of the contestee and against the relatrix. Relatrix filed a motion for a new trial, and, upon the overruling of the motion, prayed an appeal to this court, and, within thirty days, filed an appeal bond, payable to respondent Wildey, in the sum of $ 3,000, which was approved by the court, binding her to pay to the respondent the emoluments of the office during the pendency of the appeal, and conditioned in accordance with section 8 of chapter 242, Acts 1933, p. 1102. On the 6th day of July, 1935, she filed in this court a certified transcript of the proceedings below, together with an assignment of errors, perfecting her appeal.

It is further alleged that thereafter the respondent Wildey commenced an action in the Jennings circuit court to compel her to deliver possession of the office of trustee to him, because of the certificate of election issued to him by the board of canvassers, and because of the certificate of the recount commission showing that he received a majority of the votes; that a trial was had, mandating the relatrix to surrender the office of trustee to the respondent Wildey, and that, if not prohibited and enjoined from so doing by this court, the respondents will compel the relatrix to surrender possession of the office. A writ is prayed prohibiting the respondents from taking further action under the judgment of mandate or otherwise to compel her to surrender possession.

Section 8 of the statute above referred to provides that if the losing party in an election contest appeals from the judgment of the trial court, and such appellant be in possession of the contested office, and shall execute an appeal bond to the approval of the court, sufficient to cover the emoluments of the office, within thirty days from the date of the judgment, his rights in the office will not be disturbed pending the appeal. The respondent court, in rendering judgment in the action for mandate, proceeded upon the theory that section 8 of the Act of 1933 above referred to is no longer a part of the statutes, but was repealed by amendment by the Legislature of 1935. Chapter 82 of the Acts of 1935 (page 238) is entitled 'An Act to amend sections 1, 2, 3, 4, 6, 7, and 8, the title of an act entitled 'An act relating to the contest of general and primary elections for district, county, township and municipal offices,' approved March 11, 1933.'

Section 7 of the act is as follows: 'Sec. 7. That section 8 of the above entitled act be amended to read as follows: Sec. 8. Where the contest involves the election of the judge of the court in which such petition of contest is filed, and the regular judge of such court shall be a party to such proceeding, then, whether, such petition of contest is now pending or hereafter commenced, such regular judge shall be disqualified to act in any way in said cause and shall, within three days after the filing of such petition of contest, certify the fact of his disqualification to act in such cause to the governor, who shall thereupon appoint a special judge to try such cause and, if in any such proceeding now pending or hereafter commenced, a judgment of such court, in which the regular judge is a party to the proceeding, has been rendered, decreeing the contestor or the contestee to have received the greatest number of votes and to have been elected to such office, whether such decree or judgment was or is rendered by the regular judge of such court or by a special judge selected from names submitted by such regular judge and thereafter qualified, the regular judge of such court and any such special judge shall be disqualified to act further in said cause and to pass upon any motion for a new trial which may be filed therein by either of the parties to the proceeding, and shall, within three days after the passing of this act, certify such fact of disqualification to the governor who shall appoint a special judge to try and hear all further proceedings in said cause, and in the event the regular judge of the court or any such special judge, so disqualified, shall fail or refuse to certify the fact of his disqualification to the governor within the time herein provided, then such fact shall be certified to the governor by the clerk of the court.'

It will be noted that all reference to a stay of execution or the filing of an appeal bond is eliminated by this amendment. 'An amendment of a section of a law 'to read as follows' operates to repeal all of the section amended not embraced in the amended section of the law. Lewis' Sutherland, Statutory Construction (2d Ed.) § 337.' Smith v. State (1924) 194 Ind. 686, 144 N.E. 471, 472.

The relatrix contends that, since the amended section 8 deals with a different subject and is not germane to the subject of the section sought to be amended, it is unconstitutional and ineffective, and that therefore the original section 8 is still in force. It is not contended, however, that the subject-matter of the new section 8 is not within the title of the act. As authority for her position, relatrix cites State v. Bock (1906) 167 Ind. 559, 79 N.E. 493, and McCleary v. Babcock (1907) 169 Ind. 228, 82 N.E 453. These authorities do not, however, support the contention. The Legislature may repeal any or all of a given statute, or it may amend by substituting sections which differ entirely from the original, so long as the amended sections are germane to the subject-matter of the entire statute as expressed in the title. The original section 8 was...