State v. Larue's, Inc., 29742

• Decision Date: 16 December 1958
• Docket Number: No. 29742,29742
• Citation: 239 Ind. 56,154 N.E.2d 708
• Parties: The STATE of Indiana, The Indiana Alcoholic Beverage Commission, Noble Ellis, as Chairman of the Indiana Alcoholic Beverage Commission, Roy Ferguson, Leo Connell and William Storen, as Members of the Indiana Alcoholic Beverage Commission, Robert Young, as Prosecutor, Indiana Alcoholic Beverage Commission, George Rinck, Chief Excise Administrator Indiana Alcoholic Beverage Commission, John Tinder, as Prosecuting Attorney of the 19th Judicial Circuit, Robert O'Neal, as Sheriff of Marion County, Frank Mueller, as Chief of Police of the City of Indianapolis, Indiana, Roy Combs, as Auditor of State, of the State of Indiana, Appellants, v. LARUE'S, Inc., an Indiana Corporation, John L. Madden, Kenneth G. Sauer, Brodey's Village Inn, Inc., Joseph M. Treacy, On Behalf of Themselves and All Other Holders of Licenses Issued by the Indiana Alcoholic Beverage Commission, Appellees.
• Court: Indiana Supreme Court

Page 708

154 N.E.2d 708

239 Ind. 56

The STATE of Indiana, The Indiana Alcoholic Beverage

Commission, Noble Ellis, as Chairman of the Indiana

Alcoholic Beverage Commission, Roy Ferguson, Leo Connell and

William Storen, as Members of the Indiana Alcoholic Beverage

Commission, Robert Young, as Prosecutor, Indiana Alcoholic

Beverage Commission, George Rinck, Chief Excise

Administrator Indiana Alcoholic Beverage Commission, John

Tinder, as Prosecuting Attorney of the 19th Judicial

Circuit, Robert O'Neal, as Sheriff of Marion County, Frank

Mueller, as Chief of Police of the City of Indianapolis,

Indiana, Roy Combs, as Auditor of State, of the State of

Indiana, Appellants, v. LARUE'S, Inc., an Indiana Corporation, John L. Madden, Kenneth G. Sauer, Brodey's Village Inn, Inc., Joseph M.

Treacy, On Behalf of Themselves and All Other Holders of

Licenses Issued by the Indiana Alcoholic Beverage

Commission, Appellees.

No. 29742.

Supreme Court of Indiana.

Dec. 16, 1958.

Edwin K. Steers, Atty. Gen., for appellants.

Robert S. Smith and Richard W. Yarling, of Smith & Yarling, Indianapolis, for appellees.

EMMERT, Judge.

This is an appeal from a declaratory judgment entered on a special finding of facts and conclusions of law which adjudged that Ch. 172 of the Acts of 1957, §§ 60-2201 to 60-2205, Burns' 1951 Replacement Supp., hereinafter referred to as the 1957 Act, did not amend, or repeal by implication or otherwise, § 5 of Ch. 357 of the 1945 Acts, § 12-436, Burns' 1956 Replacement, hereinafter referred to as the 1945 Act. The errors assigned will be decided as they are discussed herein.

The material parts of the opening and closing time for the sale of alcoholic beverages, as set forth in the 1945 Acts, is as follows:

'Sec. 5. On Sundays, Memorial Day, on New Year's Day and on Christmas day the dale of alcoholic beverages shall be unlawful from 12:01 o'clock in the morning,Central Standard Time, and from one o'clock in the morning, Central Standard Time, on New Year's Day, in the case of bona fide fraternal clubs and patriotic service clubs as such clubs are defined in subsection (c), section 1, of chapter 197 of the Acts of 1937 [§ 12-303(c)], until seven (7:00) o'clock the next morning, Central Standard Time, and such sales shall be unlawful on primary election day and general election day from 12:01 o'clock in the morning, Central Standard Time, until the time the voting polls close in the evening of said day: Provided, however , the sale of alcoholic beverages shall wholly cease on all other days at midnight, Central Standard Time, and not be resumed before seven (7:00) o'clock the following morning, if not otherwise prohibited.'

This is a specific provision of the statutes clearly providing that Central Standard Time shall now govern the permissible hours for the sale of alcoholic beverages. The 1957 Act is a subsequent general act on time. '* * * In the construction of statutes, specific provisions will prevail over general provisions with relation to the same subject-matter. And it is a rule of statutory construction that a general statute, without negative words, does not repeal the particular provisions of the former statute on a special subject to which the general language of the later act, if it stood alone, might be deemed to apply, unless the two statutes are irreconcilably inconsistent. Walter v. State, 1886, 105 Ind. 589, 592, 5 N.E. 735; Kingan & Co. v. Ossam, 1921, 190 Ind. 554, 557, 131 N.E. 81; Monical v. Heise, 1911, 49 Ind.App. 302, 305, 94 N.E.232.' Straus Bros. Co. v. Fisher, 1928, 200 Ind. 307, 316, 163 N.E. 225, 228. '* * * The reason for such rule is clear. In passing the special act, the minds of the legislators were necessarily directed to the details of the special case, and it is not probable that they should intend, by a general act, to derogate from that which they have carefully supervised and regulated. Lewis v. Cook County, 1897, 72 Ill.App. 151; 36 Cyc. 1088. (7) Where a particular intention is expressed in an act, which conflicts with a general intention expressed in a later one, the particular intention shall be given effect, leaving the later act to operate only outside the scope of the former.' Cleveland, C. C. & St. L. R. Co. v. Blind, 1914, 182 Ind. 398, 423, 424, 105 N.E. 483, 493. See also Morris v. State ex rel. Brown, 1884, 96 Ind. 597, 600.

The first section of Ch. 172 in the 1957 Acts provided from the last Sunday in April of each year until the last Sunday of September the standard time of Indiana should be advanced one hour earlier than Central Standard Time, and the rest of the year the standare time should be 'United States standard central time.' The remainder of the section provides:

'* * * And in all laws, statutes, orders, decrees, rules and regulations relating to the time of performance of any act of any officer or department of this state, or of any county, township, city or town, municipal corporation, agency or instrumentality of the state, or school corporation, or relating to the time in which any rights shall accrue or determine, or within which any act shall or shall not be performed by any person subject to the jurisdiction of the state, and in all public schools and in all institutions of the state, or of any county, township, city or town, municipal corporation, agency or instrumentality of the state or school corporation, and in all contracts or choses in action made or to be performed in the state, it shall be understood and intended that the time shall be the time prescribed in this section.' (Italics added.)

Section 5 of the Act is material to ascertaining the legislative intention, and it states:

'Sec. 5. Any officer or employee of any county, township, city or town, municipal corporation, agency or instrumentality of the state, or school corporation in this state who violates the provisions of this act shall be guilty of a misdemeanor, and upon conviction, shall be fined in any sum of not less than ten dollars nor more than one thousand dollars, or shall be imprisoned for a term of not to exceed sixty days, or both.'

The clause, 'or within which any act shall or shall not be performed by any person subject to the jurisdiction of the state', if taken in a literal sense would be broad enough to include every man, woman and child within the territorial jurisdiction of the State. If 'rules and regulations relating to the time * * * within which any act shall or shall not be performed by any person subject to the jurisdiction of the state', should be employed in the broadest sense, the statute would be applicable to all the officers and employees of churches, religious orders, patriotic societies, non-tax-supported hospitals, labor unions, political parties, lodges, clubs, social fraternities and all corporations whether for profit or not for profit, as well as many other persons and members of firms or associations. When the well-recognized rules of statutory construction are invoked, it is quite apparent this was not the legislative intention.

It is to be noted that the first part of the quoted section is limited to the 'time of performance of any act of any officer or department * * *.' Employees are not mentioned. '* * * The rule undoubtedly is that, where words of specific and limited signification in a statute are followed by general words of more comprehensive import, the general words shall be construed as embracing only such persons, places and things as are of like kind or class to those designated by the specific words, unless a contrary intention is clearly shown by the statute. Miller v. State, 1889, 121 Ind. 294, 23 N.E. 94; Nichols v. State, 1891, 127 Ind. 406, 26 N.E. 839; State v. Sopher, 1901, 157 Ind. 360-373, 61 N.E. 785; State [ex rel. Shanks] v. Board [etc.], 1904, 162 Ind. 183, 70 N.E. 138; [Laporte] Carriage Co. v. Sullender, 1905, 165 Ind. 290-302, 75 N.E. 277; State [ex rel. Beard] v. Jackson, 1907, 168 Ind. 384-389, 81 N.E. 62.' Wiggins v. State, 1909, 172 Ind. 78, 80, 87 N.E. 718. Innumerable cases have announced the same rule of construction, among which are Dowd v. Sullivan, 1940, 217 Ind. 196, 201, 27 N.E.2d 82; Yarlott v. Brown, 1923, 192 Ind. 648, 653, 138 N.E. 17; City of Jeffersonville v. Nagle, 1921, 191 Ind. 70, 72, 132 N.E. 4.

We believes § 5 of the 1957 Acts clearly indicates that the words 'any person subject to the jurisdiction of the state' of § 1 are limited to employees or agents of the public departments, corporations, agencies or instrumentalities of the State or its political subdivisions. The penal provisions of § 5 cover both officers and employees of any county, township, city or town, municipal corporation, agency or instrumentality of the state or school corporation, but do not make it an offense for anyone else to fail to comply with any of the provisions of the 1957 Act. If the General Assembly had intended the words 'any person subject to the jurisdiction of the state' should have the broadest possible meaning and not be limited to the agencies or instrumentalities of government before mentioned, it would have used broader language in this § 5 to make it a misdemeanor for any person to violate the provisions of the 1957 Act. There was no expressed intention that the 1957 Act should amend by implication the 1945 Act, and since the 1945 Act was a specific Act of limited application, the presumption is that it was not affected by the 1957 Act. Certainly, we should not hold the prior Act was repealed by implication, for if that were true there would be no Act at all governing the permissible time for the sale of alcoholic beverages. Under the well-recognized rules of statutory construction, both Acts are valid and still in force, and the central time specified in the 1945 Act still governs the time for the sale of alcoholic beverages. The construction placed upon the two Acts by the trial court was correct, and should be affirmed as to every party except the State of Indiana.

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