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of these things must be deemed guilty of a several reasons are assigned, they are all inmisdemeanor;

the cluded in the single question decided in the terms of section 627 made complete without original opinion, viz.; That under the facts any reference to notice from any officer. stated in the complaint the right of action Upon the occurrence of the facts stated in was in the widow of decedent, and not in his section 627a the owner or occupant of land personal representative. notified, if guilty of any offense, would be It is urged that the action was rightly rendered so upon facts described in that brought in the name of the administratrix, section. The affidavit stated an offense com- for the reason that section 13 of the mining pletely when it charged the appellee with act, being section 7473, Burns' Ann. St. 1901, knowingly, unlawfully allowing Canada this- "was modified by the later enacted general tles to grow and mature upon his land de- statute of 1899 (Act 1899, p. 405, c. 177), scribed. If one offense be sufficiently aver- which conferred the right of action for death red in an indictment or affidavit, the pleading by wrongful act, upon the personal reprewill not be rendered bad by the fact that sentative." It is insisted that, under the another offense also is insufficiently averred. amended act of 1899, supra, a right of action The latter charge should be treated as sur- where death results from the "wrongful act plusage. Eagan v. State, 53 Ind. 162; Hat- or omission" of one, is lodged solely in the field v. State, 9 Ind. App. 296, 36 N. E. 664. personal representative of the decedent. If

When a statute makes it a crime to do any this is true, the amended act repeals, by imone of a number of things mentioned dis- plication, section 7473, supra, which gives the junctively, all of which are punishable alike, right to the widow, etc., "or to any other any or all of them may be charged con- person or persons who were before such loss junctively in a single count. Marshall v. of life dependent for support on the person State, 123 Ind. 128, 23 N. E. 1141; Rhodes v. or persons so killed," etc. If the latter secState, 128 Ind. 189, 27 N. E. 866, 25 Am. St. tion is repealed, then we were in error in Rep. 429; Hauk v. State, 148 Ind. 238, 46 holding that the administratrix could not N. E. 127, 47 N. E. 465; Hobbs v. State, 133 maintain this action. Prior to the re-enactInd. 404, 32 N. E. 1019, 18 L. R. A. 774; State ment, in 1899, of the general statute giving a v. Sarlls, 135 Ind. 195, 34 N. E. 1129; State right of action for the death of a person, causV. Stout, 112 Ind. 245, 13 N. E. 715; Mer- ed by the wrongful act or omission of angentheim v. State, 107 Ind. 567, 8 N. E. 568; other, the damages recoverable inured "to the Fahnestock v. State, 102 Ind. 156, 1 N. E. exclusive benefit of the widow and children, 372; Davis v. State, 100 Ind. 154; Crawford if any, or next of kin,” etc. The only change v. State, 33 Ind. 304; State v. Alsop, 4 Ind. made by the amendatory act, of 1899, supra, 141.

was by adding the words "or widower (as the It was not necessary to the sufficiency of case may be).” It seems clear that the purthe affidavit to state therein that the crime

pose of the amendatory act was to extend charged was a first or a second or other sub

the provisions of the statute to the widower sequent offense. In the absence of an alle- by making him a beneficiary thereunder. It gation concerning such matter, the crime is evident, from the words employed, that charged would be assumed to be a first

it was not the intention of the Legislature offense. Bishop, New Crim. L. $ 959 et seq. ;

to repeal section 13 of the mining act. So, Kilbourn v. State, 9 Conn. 560; People v.

if the latter section was repealed, it was by Cook, 45 Hun, 34. See Good v. State, 61

implication. Repeals by implication are not Ind. 69.

favored. In Board v. Garty, 161 Ind. 464, Judgment reversed, with instruction to 68 N. E. 1012, it was said: “It is a familiar overrule the appellee's motion to quash.

rule, and one universally affirmed by the authorities, that a repeal by implication is not

favored. In accordance with this rule two (38 Ind. A. 637)

or more acts on the same subject must, if COLLINS COAL CO. v. HADLEY. (No. possible, be so construed that both may be 5,466.)1

permitted to stand. It has been repeatedly (Appellate Court of Indiana, Division No. 2. affirmed by decisions of this court that imJune 29, 1906.)

plied repeals are only recognized and upheld STATUTES-REPEAL BY IMPLICATION-REPUG- when the latter act is so repugnant to the NANT ACTS.

earlier as to render the repugnancy or conA repeal by implication is only recognized when the latter statute is so repugnant to the

flict between them irreconcilable. A court earlier as to render the repugnancy irrecon- will always, if possible, adopt that construccilable.

tion which, under the particular circum[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, &$ 228, 229.]

stances in a given case, will permit both laws

to stand and be operative." In Lewis' On rehearing. Petition overruled.

Sutherland, Stat. Const. § 247, it is said: For original opinion, see 75 N. E. 832. “When some office or function can by fair

construction be assigned to both acts, and WILEY, J. Appellee has asked for a re- they confer different powers to be exercised hearing and has supported her petition there- for different purposes, both must stand. for by an able and ingenious brief. While though they were designed to operate upon 78 N.E.-23

1 Transfer denied.

the same general subject. Woods v. Super- , Wis. 386, 66 N. W. 503; State ex rel. v. visors, 136 N. Y. 403, 32 N. E. 1011. The Beard (Nev.) 29 Pac. 531; McLaughlin V. earliest statute continues in force unless the Newark, 57 N. J. Law, 298, 30 Atl. 543; 01two are clearly inconsistent with and repug- sen v. Haritwen, 57 Fed. 845, 6 C. C. A. 608; nant to each other, or unless in the latter People v. Wenzel (Mich.) 62 N. W. 1038; statute some express notice is taken of the Curbay v. Bellemer, 70 Mich. 106, 37 N. W. former plainly indicating an intention to re- 911; Gazollo v. McCann, 63 Mo. App. 414; peal it; and where two acts are seemingly Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; repugnant they should, if possible, be so con- Blain v. Bailey, 25 Ind. 165; Blumenthal v. strued that the latter may not operate as a Tibbits, 160 Ind. 70, 66 N. E. 159. In the repeal of the former by implication. These last case cited it was insisted that section expressions of opinion are supported by nu- 17 (section 2484, Burns' Ann. St. 1901) of the merous cases.” In section 267, the same au- act approved March 7, 1883 (Laws 1883, p. thor, in speaking of this question, says: “If, 158, c. 121), amending the decedent's act, reby fair and reasonable interpretation, acts pealed section 802, Burns' Ann. St. 1901, of which are seemingly incompatible or con- the Civil Code, but the court held otherwise, tradictory may be enforced and made to op- and in the opinion said: It is true that erate in harmony and without absurdity, both section 2484, supra, was enacted in 1883, will be upheld, and the later one will not be while section 802, supra, was enacted in 1881; regarded as repealing the others by construc- but section 2484 is substantially a re-enacttion or intendment. As laws are presumed ment of section 151 of the decedent's act, ento be passed with deliberation and with a acted in 1881 (Acts 1881, p. 423, c. 45), and full knowledge of all existing ones on the the presumption against a repeal under such same subject, it is but reasonable to conclude circumstances is especially strong." that the Legislature, in passing a statute, did In 1852 the Legislature passed two laws, not intend to interfere with or abrogate any one of which was special, exempting farm former law relating to the same matter unless lands lying within the corporate limits of the repugnancy between the two is irrecon- cities from municipal taxation, and the other cilable.

The act being silent as to general, giving cities power to collect an ad repeal and affirmative, it will not be held to valorem tax on all property within their corabrogate any prior law which can reasonably porate limits. In 1857 the latter act was and justly operate without antagonism. A amended, but the section conferring power statute which does not take away any right, upon cities to collect taxes on "all property or impose any substantially new duty, but within such city” was re-enacted in precisely regulates with additional requirements a du- the same language. In Blain V. Bailey, ty imposed by a previous statute, is not to be Treas., etc., 25 Ind. 165, the question indeemed inconsistent with the previous act. volved was whether or not the act of 1857 reTwo statutes are not repugnant to each pealed by implication the special act of 1852, other unless they relate to the same subject exempting farm lands within the corporate and are passed for the same purpose. 'It is limits of a city from taxation. It was held a reasonable presumption that all laws are that the special act was not repealed, and in passed with a knowledge of those already the decision the court employed the following existing, and that the Legislature does not language: "While these two acts continued intend to repeal a statute without so declar- in force, they were, by the settled rules of ing.'In section 273 of

273 of Lewis' Suther- construction, to be so interpreted that both land, is found the following: “A later law could have effect. This could be done by holdwhich is merely a re-enactment of a former

ing the particular cases mentioned in the does not repeal an intermediate act which exempting act to constitute exceptions to the has qualified or limited the first one, but such general provisions of the other act, and we intermediate act will be deemed to remain in are not aware that any doubt was entertained force, and to qualify or modify the new act

upon that subject at that time. Now we in the same manner as it did the first.


cannot suppose that the Legislature, by reis especially true if the intermediate law is enacting a provision in the same language special or particular, and the re-enacted law which was employed in a repealed statute, is a general law on the same subject. Where intended to impart to it a wider scope, or a law is substantially re-enacted it is said to other meaning than that which the same show that the Legislature did not regard it words were previously intended to import, as repugnant to an intermediate act to some especially when the effect would be to accompextent covering the same subject." These lish what is not favored in the law-the redeclarations of the law, applicable to re- peal of another statute by implication. It is peals, are abundantly sustained by the au- more reasonable to hold that the words have thorities, of which we cite the following: been employed in the same sense in which Powell v. King, 78 Minn. 83, 80 N. W. 850; they had been used in the act repealed. State ex rel. v. Elko Co., 21 Nev. 19, 23 Pac.

* The position that it was not intend935; Harrison v. Board, 117 Mich. 215, 75 ed to repeal the act in question is strongly N. W. 456; Co-operative S. Ass'n v. Fawick, confirmed by the fact that the act of 1857 (sec11 S. D. 589, 79 N. W. 847; Small v. Lutz tion 1, c. 33, p. 42, Laws 1857) expressly re(Or.) 67 Pac. 421; Bentley V. Adams, 92 peals several acts which undoubtedly would



have been repealed by implication, but is en- (Rey. St. 1874, p. 582), which authorizes an tirely silent as to this act. Why was this? action in the name of the personal repreThe Legislature must be presumed to have act- sentatives, did not repeal the fourteenth seced with deliberation, and with full knowledge tion of the act entitled "Miners.' The former of all existing acts upon the same subject. act is general, while the act in relation to Again, the forty-second section (page 57) of miners may be regarded as special, and the the act of 1857 is a general statute, without latter must control as to all cases specially negative words, while the exempting act enumerated in the act itself, while the other of 1852 is particular. In such a case the rule act, being general, would embrace all other is that there is no repeal by implication, un- cases"--citing Town of Ottawa v. Town of less it is absolutely necessary in order that La Salle, 12 Ill. 339. While decided cases in the latter shall have any meaning at all”- other jurisdictions are not authorities binding citing Dwarris, 674; Sedgwick on Stat. 123; upon courts in this jurisdiction, they are Williams v. Pritchard, 4 T. R. 2. Endlich on worthy of our consideration, and we are at Stat. Constr. § 370, says: "It is scarcely liberty to follow them if we believe they necessary to remark that, where the same properly declare the law. The case last language, which has received a certain judi- cited is, we believe, a correct declaration of cial construction in an act, is used in an act the law, and is in harmony with the general amendatory of the same, it is presumed to rule announced in the original opinion, and have been used there in the same sense, and supported by the great weight of authority. intended to be subject to the same construc- Counsel for appellee seek to parry the tion." It is past understanding that the force of the decision in Couchman, Adm'r, words "wrongful act or omission of another," v. Prather, 162 Ind. 250, 70 N. E. 240, cited in the act of 1899, supra, should have a wider in the original opinion, by saying that "it is scope, or a different meaning than they were not in point.” We cannot agree with counsel, construed to have had in the repealed statute. but, on the contrary, regard the question there As we have seen, the amendatory act is a re- involved and decided directly in point. The enactment of the old statute, in precisely the facts upon which that case rested are so same language, adding thereto one word fully stated in the original opinion that we "widower."

will not advert to them farther. Counsel In 1852 the Illinois Legislature passed a for appellee rely largely upon two cases, law giving a right of action for the death of President, etc., R. R. Co. v. Bradshaw, 6 Ind. a person by "wrongful act," etc., and pro- 146, and Pittsburgh, etc., Ry, Co. v. Burton, vided that the action should be brought by 139 Ind. 357, 38 N. E. 594, in support of their the personal representative "of such deceased contention that the amendatory act of 1899 person.” This statute is substantially like (section 285, Burns' Ann. St. 1901) repealed section 285 of our statute, except it does not the thirteenth section of the mining act (secinclude the widower, as a beneficiary. In tion 7473, Burns' Ann. St. 1901), and by rea1874 the statute in its original form was re- son thereof urge that the amendatory act enacted. Rev. St. Ill. p. 582, c. 70. In 1872 governs. In the Bradshaw Case two statutes the Illinois Legislature passed a law relating passed at the same session of the Legislature to mines, miners, etc. (Acts 1871-72, p. 568). were involved. These two statutes were upon Section 14 (page 574) of that act gave a right the same subject-matter, and the question of action for death, "resulting from any will- was: Did the latter repeal, by implication, ful violations of this act, or willful violation the former? The substance of the first statto comply with any of its provisions,” and ute was that, whenever any person should die lodged such right of action "in the widow of from injuries happening through the neglithe person killed, or his lineal heirs or adopt- gence of a railroad company, a right of action ed children, * * * dependent for support for damages should exist in favor of certain upon the person or persons killed." In Litch- specified persons against such company. One field Coal Co. v. Taylor, 81 Ill. 590, the of the beneficiaries named in this statute was identical question involved here was present- the wife of the person so killed. Section 3, ed for decision. In that case the action was c. 88, p. 426, 1 Rev. St. 1852. Such right of commenced in the name of the administrator action was limited by this statute against of the decedent. Subsequently the court per- railroad companies. Thirty-eight days later mitted the declaration and summons to be the Legislature extended this right, making amended by substituting the widow as plain- it general against all persons, natural and tiff. There, as here, it was contended that artificial, annexing, however, some modificathe re-enactment of the general statute in tions and limitations upon its exercise. Sec1874 repealed by implication section 14 of the tion 784, c. 1, p. 205, pt. 2, 2 Rev. St. 1852. mining act (Rev. St. 1874, c. 93), and hence This later act is identical with section 285, the action could only be prosecuted in the Burns' Ann. St. 1901, except that it limited name of the personal representative. In the the recovery to $5,000, and the "widower" course of the decision, the court said:


was not named as a beneficiary. In considerare satisfied that the widow was the proper ing the case, the court said: "The two acts person to bring the action. The fourteenth quoted are upon the same subject-matter; that section of the act expressly authorizes her to is, they both create a right of action in a sucbring the suit. Chapter 70, entitled 'Injuries,' cessor, to be pursued by the same system of

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practice, in the same tribunals, for a tort duties imposed, and provided that in case of committed upon a deceased person, and they death the recovery should be limited to $3,000. must be considered together. The first, as Acts 1879, p. 173, c. 77; section 4020 et seq., we have said, gives the right of action in such Rev. St. 1881. In 1881 the general act procases against a railroad company; the second, viding for the recovery of damages for “the against all persons. The first does not regard wrongful act or omission of another” was the question whether the deceased, if living, amended, fixing the amount of recovery at could have maintained the action for the $10,000, instead of $5,000. Acts 1881, p. 241, same tort; the second does. The first gives C. 38; Rev. St. 1881, § 284. It was held that the right of action to the widow or other rel- the limiting clause of section 4, c. 77, p. 174, atives, as the case may happen, and gives of the act of March 29, 1879, supra, fixing the judgment recovered exclusively to the the amount of recovery at $5,000, was repealplaintiff in the suit; the second vests the ed by the amendatory act of 1881, supra. right of action in the legal representative of It is our conclusion that the original opin. the deceased and requires the proceeds of the ion is not in conflict with the rules declared judgment recovered to be distributed to the in the two cases we have just viewed, but, on widow and heirs according to the general the contrary, is in harmony with the great law of distribution of personal estate. The weight of authority. first makes no provision for the brothers and Petition for rehearing overruled. sisters and remoter relatives of a deceased miner killed upon a railroad; the second does. The first does not limit the time in

(39 Ind. App. 193) which suit may be brought; the second does.

BOARD OF COM’RS OF JACKSON COUNThe first does not limit the amount of dam

TY v. BRANAMAN. (No. 5,610.) 1 ages that may be recovered; the second does. The second is more comprehensive than the

(Appellate Court of Indiana. June 29, 1906.) first, covering the whole ground occupied by

On rehearing. Denied. it, and more. The two are utterly inconsist

For former opinion, see 76 N. E. 1030. ent in their provisions and cannot both be enforced; the latter is much the more rea

PER CURIAM. The petition for a resonable and judicious law, is more in har.

hearing is overruled. mony with general principles, furnishes an ample remedy, and, we think, repeals the

ROBY, J. (dissenting). This suit is brought former.” Counsel for appellee say that “No

by appellee as a taxpayer to enjoin the board distinction can be drawn between the above

of county commissioners from using public case and the one at bar." There is a clear

funds in defending an action theretofore and marked distinction. In the Bradshaw

brought against said board on a written conCase the court had under consideration two

tract made by it for the construction of cerstatutes passed at the same session of the

tain free gravel roads in accordance with an Legislature, and both acts related to the same

act approved March 3, 1893 (Acts 1893, p. subject-matter. In the case we are consider

196, c. 112), and an amendatory act thereto, ing the two statutes are essentially different.

approved March 7, 1895 (Acts 1895, p. 143, c. Section 7473, supra, created a new right of ac

63). It is a verred that said board is made a tion growing out of violations of the mining

party to said pending action as the enforced act, and made ample provision for asserting

agent and custodian of certain funds derived and enforcing such new right, and designated

from the sale of bonds, and in no other capacthe persons who became beneficiaries thereun- ity, that no judgment is therein sought der. The amendatory act of 1899, supra,

against said county or any fund belonging supplies a general procedure, by vesting in the to said county, but that the relief sought is personal representative of a decedent, who solely against the fund derived from the sale died from the wrongful act or omission

of bonds for a taxing district and to have the of another, where such act or omission same applied upon the payment of the costs Is made wrongful by statute, provided such of improvements made therein. The indebtstatute makes no provision for its enforce- edness created by the construction of a road ment, or where an action is founded upon an under said act is not the indebtedness of the act which created a common-law right of ac- county, but is the indebtedness of the pertion.

sons assessed for its construction. King V. Neither is the case of Pittsburg, etc., Ry.

Board of Commissioners, etc. (Ind. App.) 72 N. Co. v. Burton, supra, in point, which will E. 616. The county is not liable for the cost readily appear from a reference to the ques- of constructing the road. King v. Board of tion there involved. In 1879 the Legislature Commissioners, etc., supra.

When the con. passed a law requiring that engine whistles tract is performed by the completion of the on locomotives should be sounded distinctly road, the law enjoins the duty upon the board three times, not less than 80 rods from any of commissioners of receiving the same and highway crossing, and to ring the bell con- directing the auditor to issue the warrant, tinuously, etc. The same act provided that upon which finally payment is made, and damages might be recovered for injuries, mandamus is a proper remedy to compel the or death, resulting from a violation of the performance of said duty. King v. Board of

1 See 79 N. E. 923. Rehearing denied. Superseded by opinion in Supreme Court, 82 N. E. 65.

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Commissioners, etc., supra. It irresistibly Suit by the state, on relation of Charles W. follows from these premises that the expense Miller, Attorney General, against Fredericka of defending an action on a contract made Niemitz and others, to quiet title. A decree in pursuance of said statute is not one which was rendered in favor of plaintiff, and deought to be paid out of the general county fendants appeal. Case transferred from fund, or for which the county is responsible. Supreme Court under Act March 12, 1901. The expense thus incurred is a part of the On motion to dismiss appeal. Granted. cost of the proceeding and should be paid out

Thos. J. Wood, for appellants. H. M. of the special fund provided for the purpose

Dowling, O. W. Miller, W. C. Geake, and of paying the costs of the improvement. It will not do to say that the county may sub

C. C. Hadley, for appellee. sequently reimburse itself by filing a claim against the special fund. Whether it may

ROBINSON, C. J. Suit by appellee to quiet

title. do so or not is immaterial, it not being, in

Upon issues formed a decree was the first instance, under any obligation to

entered in appellee's favor, from which apmake the outlay.

pellant appealed. Appellee moves to dismiss Whatever conclusion has arisen in this case

the appeal on the ground that it was not arises from the fact that the plaintiff, who

perfected within a year from the date of the sues as a taxpayer, is also the contractor,

judgment. Appellant's attorney, on June 16, seeking in a different capacity and in an

1906, acknowledged service of notice that other suit to enforce his contract, and from

the motion to dismiss would be heard by the further fact that the special agent

this court on June 22, 1906, or as soon thereagainst whom the action is brought is in an

after as the same could be heard by the other capacity the representative of the coun

court. ty. If the action was brought by a taxpayer

This is a vacation appeal. The judgment who was in no wise connected with the con

was entered December 8, 1904. The trantract, and if it was brought against a special script, with the assignment of errors, was agent who was not a representative of the

filed in the office of the clerk of this court county, there would be no confusion as to December 7, 1905. No notices of any kind rights and liabilities. The board, as the agent

were issued until about 60 days after the of the persons benefited by the improvement, transcript was filed, the indorsement on the has authority to direct the auditor to draw transcript reciting "1906 Feby. 7. Notice his warrant for the incidental expenses of and proof of service to attorney of record constructing such road as well as to direct and clerk, Feby. 6, 1906.” It does not appear him to draw his warrant for the contract from the transcript and its indorsements price, and there is therefore no question of that any attempt was made to have notice preventing the board from defending the issued or served until in February 1906. In pending action or of restricting its available Tate v. Hamlin, 149 Ind. 94, 41 N. E. 356, it means of making such defense.

is said: “It is also well settled by the deIt follows that the petition for rehearing cisions of this court that the filing of the should be granted and the judgment aflirmed. transcript with a proper assignment of error

thereon within the time limited for taking ROBINSON, C. J., and MYERS, J., con- an appeal perfects the appeal without the cur

service of notice on the appellees.” Citing Harshman v. Armstrong, 43 Ind. 126; John

son v. Stephenson, 101 Ind. 368, 4 N. E. 46; (38 Ind. A. 509)

Wright v. Manns, 111 Ind. 422, 12 N. E. 160. NIEMITZ et al. v. STATE ex rel. MILLER,

This case distinguishes the case of Holloran Atty. Gen. (No. 6,196.)

v. Midland, etc., Ry. Co., 129 Ind. 274, 28 N. E. (Appellate Court of Indiana, Division No. 1.

519, on the ground that the notice in the June 29, 1906.)

Holloran Case was to a co-party and not to 1. APPEAL — FILING TRANSCRIPT ASSIGN

an appellee. In Bank of Westfield v. Inman, MENTS OF ERROR-NOTICES. Where a transcript on appeal with the

133 Ind. 287, 32 N E. 885, the judgment was proper assignments of error is filed within the rendered December 5, 1891, and the trantime limited for the taking of an appeal, the script, with assignment of errors, was filed appeal is thereby perfected without the service of notice on appellees.

July 16, 1892, on which day a notice was [Ed. Note.-For cases in point, see vol. 2,

issued and served on the 18th day of the Cent. Dig. Appeal and Error, $ 2099.]

month. No notice was issued or served upon 2. SAME-BRIEFS.

the other appellee prior to the filing of the Where the only brief filed by appellant motion to dismiss the appeal nor was an contains less than one page of typewritten matter and does not in any way comply with the

appearance entered for him. On December rules respecting the filing of briefs, and the

7, 1892, the motion to dismiss was filed and brief fails to present any question for review, on the next day the clerk issued a notice to the appeal will be dismissed.

the other appellee. The court said: "If [Ed. Note. For cases in point, see vol. 3, this appeal stood alone upon the transcript Cent. Dig. Appeal and Error, § 3108.]

and its indorsements, we would be compelled Appeal from Circuit Court, Lake County; to sustain the motion to dismiss.” To the H. S. Barr, Special Judge.

same effect is Coburn v. Whitaker, etc., Co.,

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