State v. Doversberger

• Decision Date: 31 October 1972
• Docket Number: No. 372A119,372A119
• Citation: 153 Ind.App. 563,33 Ind.Dec. 272,288 N.E.2d 585
• Parties: STATE of Indiana and Indiana Livestock Sanitary Board, a/k/a Indiana State Board of Animal Health, Defendants-Appellants, v. Paul DOVERSBERGER, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 585

288 N.E.2d 585

153 Ind.App. 563

STATE of Indiana and Indiana Livestock Sanitary Board, a/k/a Indiana State Board of Animal Health, Defendants-Appellants, v. Paul DOVERSBERGER, Plaintiff-Appellee.

No. 372A119.

Court of Appeals of Indiana, Second District.

Oct. 31, 1972.

Rehearing Denied Dec. 4, 1972.

Theodore L. Sendak, Atty. Gen., Darrell K. Diamond, Deputy Atty. Gen., for defendants-appellants.

Arvin R. Foland, Noblesville, John E. Eisele, Anderson, for plaintiff-appellee.

SULLIVAN, Judge.

Plaintiff-appellee Doversberger was dismissed from a nonmerit ¹ position as field representative for the State Board of Animal Health without hearing. Notification of dismissal was by letter stating five specific reasons for the action.

Appellee's suit for damages arising from the dismissal was filed in the Hamilton Superior Court. After a motion to dismiss was filed by defendant objecting to the jurisdiction of that court, venue was transferred under Ind.Rule TR. 75, IC 1971, 34--5--1--1, to the Marion Superior Court. That court, sitting en banc as the Court of Claims, overruled the defendant's motion to dismiss and its subsequent motion for summary judgment. Plaintiff's motion for summary judgment was sustained and judgment in the amount of $16,800.00 awarded to plaintiff.

The issues presented are two-fold:

1. Did the trial court err in sustaining a motion for summary judgment for plaintiff-appellee Doversberger on the grounds that plaintiff was improperly dismissed without a hearing?

2. Did the trial court err in ruling that the provision for a hearing as a condition precedent to the dismissal of employees of The Indiana Livestock Sanitary Board, a/k/a Indiana State Board of Animal Health had not been repealed by implication by subsequent acts of the Legislature? ²

The chronology and legislative history of the statutory provisions with which we are concerned are deemed important to an understanding of the issues. The basic Act of 1943 creating the Livestock Sanitary Board was amended by Acts 1947, Ch. 371, § 2 of which reads in part as follows:

'The Chief Administrative Officer and all other deputies, assistants and employees after notification and hearing before the Board can be removed for cause or inefficiency by a majority vote of the Indiana State Livestock Sanitary Board.'

Then in February, 1951, the General Assembly passed a separate, distinct and comprehensive Act known as the Domestic Animal and Poultry Disease Code. This 1951 Act being Ch. 80 did not purport to amend or repeal either the 1943 Act or Section 2 of the 1947 Act. To the contrary, the February 1951 Act contained the following interpretive aid:

'Article I. Administration of Domestic Animal and Poultry Disease Control

Part 1. The Indiana State Livestock Sanitary Board Division I. Organization

Section 100. The board as created and provided for by Section 1 and Section 2 of Chapter 371 of the Acts of 1947 shall continue as the Indiana Livestock Sanitary Board and nothing in the act shall be construed as repealing or superseding Section 1 and Section 2 of Chapter 371 of the Acts of 1947.' (Emphasis supplied)

The 1951 Act then proceeded to restate virtually verbatim the pertinent provision of § 2 of the 1947 Act as follows:

'SEC. 105. The Chief Administrative Officer and all other deputies, assistants and employees after notification and hearing before the board can be removed for cause or inefficiency by a majority vote of the board.'

Such duplication was however specifically anticipated by the legislature then in session in that Section 3 of the 1951 Act stated:

'SEC. 3. The provisions of this act insofar as they are substantially the same as existing statutory provisions relating to the same subject matter shall be construed as restatements and continuations, and not as new enactments.'

The same session of the 1951 General Assembly approximately one week later, on March 7, in Acts 1951, Ch. 275, § 4, struck the 'hearing' provision from the 1951 Act by amending the aforementioned Section 105 as follows:

'Section 105 of the above entitled act is amended to read as follows: Sec. 105. In addition to their salaries, the Indiana State Veterinarian, and all other deputies, assistants, and employees shall be entitled to receive their necessary transportation expenses while away from their official station and engaged in their official duties, but in no case shall such officer, assistant, deputy or employee, charge, receive or collect any fee or fees for any services rendered as such officer, assistant, deputy or employee. The said Indiana State Veterinarian and the other deputies and assistants shall not engage in the practice of veterinary medicine or surgery during their term of office or employment under said Board.'

Then in 1953, by Chapter 234, Section 2 of the Acts of 1953, the General Assembly amended the February 1951 Act, as follows:

'SEC. 2. Section 100 of the first above entitled act is amended to read as follows: Sec. 100. The board as created and provided for by Section 1 and Section 2 of Chapter 371 of the Acts of 1947 shall continue as the Indiana Livestock Sanitary Board.'

Finally the legislature in the Acts of 1959, Ch. 273 concerning regulation of dealers in livestock enacted a provision with respect to certain powers, duties and functions of the Livestock Sanitary Board. That provision empowered the Board to dismiss employees whose duties and responsibilities concerned the regulation of livestock dealers and their agents:

'SEC. 6. Administrative Board--Powers, Duties and Functions. The Indiana State Livestock Sanitary Board shall have the power and authority to do the following: (a) To appoint a director and such other employees as may be required to carry out the functions, duties and powers as herein defined; to dismiss such employees; * * *'

In substance, the State makes a dual attack upon the judgment below. First, it concedes that the 1947 provision for hearing has never been specifically repealed but argues that the duplication by the 1951 Act of the hearing procedure provided by the 1947 Act shows an intent by the legislature to supercede the 1947 provision. It is the State's position that the subsequent March 1951 amendment which deleted the hearing provision from the February 1951 enactment further discloses a repeal by implication of the right of a dismissed employee to a hearing. The State additionally contends that when the 1953 General Assembly removed from Section 100 of the basic 1951 Act the prohibition against any construction which would serve to repeal or supercede the 1947 provision, the legislature further expressly recognized that the 1951 Act had in fact repealed the 1947 provision for hearing.

The State argues alternatively that even if the 1951 enactments did not serve to strike the 1947 provision for hearing, the 1959 statute did so. In this respect, appellant quite obviously considers the 1947 provision impliedly repealed by Acts 1959, Ch. 273, § 6, hereinbefore set forth. The State supports its position only by the assertion that the Livestock Sanitary Board's duties and powers, as opposed to its mere form and membership, are defined exclusively in terms of the 1959 Act, i.e., that the 1959 Act superceded all other provisions respecting the activities and powers of the Board, including Section 2 of the 1947 Act.

As stated by Sutherland, Statutory Construction (3d ed.) § 1922:

'Repeal by implication occurs when an act not purporting to repeal any prior act is wholly or partially inconsistent with a prior statute or covers the subject of a prior act or section and is a substitute act.'

With the aforementioned applicable test in mind, we turn to a consideration of appellant's contentions.

FEBRUARY 1951 ACT DID NOT IMPLIEDLY REPEAL 1947 PROVISION FOR HEARING

At the outset it should be noted that as a general rule re-enactment of a statutory provision in identical terms by subsequent statute without language expressly repealing the earlier provision does not serve to repeal or supercede the prior provision. Cordell v. State (1864), 22 Ind. 1. When enacted in February 1951, Chapter 80 of that Act quite clearly acknowledged the continuing viability of the hearing provision of the 1947 Act, for as hereinbefore noted, Section 100 of the 1951 Act directed that Section 2 of the 1947 Act be not construed as having been repealed or superceded. Thus if the 1947 provision has been impliedly repealed by passage of a 'substitute' act, such must have occurred subsequent to the February 1951 Act. With respect then to the implied repeal aspects of that basic 1951 Act, appellant must look for comfort to that facet of the test which requires that the prior act or section is not impliedly repealed unless inconsistent with the later enactment. Quite clearly, such is not the situation in the case before us. Not only are the provisions of Section 105 of the 1951 Act, as enacted, not inconsistent with the hearing provision of § 2 of the 1947 Act, the provisions are virtually identical. When dealing with inconsistent and irreconcilable statutory provisions, as opposed to repeal by a 'substitute' act, we see no difference between amendatory acts and separate independent acts covering the same general subject matter. We thus hold that the unchanged portions of Section 2 of the 1947 Act, i.e., the hearing provision, continued in full force and effect independent of the duplicitous language in the 1951 statute. Huff v. Fetch (1924), 194 Ind. 570, 143 N.E. 705. We cannot assume contrary to the precise recitation in Section 100 of the original 1951 Act that the legislature intended Section 2 of the 1947 Act to fall. Schnee v. State (1970), 254 Ind. 661, 262 N.E.2d 186 at 188. We therefore further hold that since the 1951 Act with regard to hearings for dismissed employees was not in irreconcilable conflict with the 1947 provision, the latter was not impliedly repealed. Evansville-Vanderburgh Metropolitan...