185 Ind. 600 | Ind. | 1916
Lead Opinion
— At the February term of the board of commissioners of Jackson county, appellees presented a petition for the improvement of a highway
After this report was filed, appellants appeared before the board of commissioners at the August term and filed an answer in which it was averred, in substance, that the portion of the highway sought to be improved by this proceeding had been graded, graveled and improved at the expense of the taxpayers of Jackson township prior to the filing of the petition in this proceeding and that such prior improvement was made under an order of the board of commissioners of Jackson county on petition of the voters, and after an election to determine the will of the people as to such improvement had been held by the voters of that township. It was further alleged that the former improvement was completed and accepted by the board of commissioners of the county before the petition in this proceeding was filed and that it then became and still was a part of the free gravel road system of Jackson county, which the law requires shall be kept in repair by the entire county by means of a tax to be levied for that purpose.
Appellees filed a demurrer to this answer which the board of commissioners sustained, after which judgment was entered ordering the improvement
It is the position of appellants that the board of commissioners of a county had no power or authority under the statute, prior to the taking effect of the acts of 1915, to entertain any petition or to make any order for the second or other subsequent improvement of a highway which had already been improved as a free gravel road under the statute of the state. Appellants assert that when a road has once been improved and accepted as a part of the free gravel road system of the county it must be maintained at the expense of the taxpayers of the entire county as provided by the statutes on the subject of the repair of free gravel roads, and that for this reason the statute did not contemplate that such a road should be repaired, resurfaced or re-improved at the sole expense of the taxpayers of the township in which it is located.
The powers conferred by §62 of the act of 1905, supra, were clearly sufficient to authorize a second
In 1915, §1 of the act approved March 15, 1913, was so amended as to grant express power to boardLs of commissioners to reimprove highways under the provisions of the act. Acts 1915 p. 680. Appellant claims that this subsequent legislation amounted to a recognition on the part of the general assembly that the power subsequently conferred was not granted by §62 of the act of 1905, and the court is urged to adopt this construction.
The trial court committed no reversible error. Judgment affirmed.
Dissenting Opinion
Dissenting Opinion.
— I think the circuit court erred in sustaining the demurrer to appellant’s answer. The petition for the reimprovement was filed under §62 of the highway act of 1905, as amended by the act.of March 15, 1913. Acts 1913 p. 914, §7711a Burns 1914. Neither before nor after the amendment of 1913 did said §62 contain express mention of the subject of rebuilding, or of reimprovement. By. an act approved March 14, 1913, purporting to amend said §62 of the highway act of 1905 (Acts 1913 p. 690, §7711 Burns 1914), express provision
It .often happens that legislatures in amendatory or supplemental enactments- attempt to construe and declare the scope and meaning of previous enactments. Such construction as to past transactions is not binding on the courts, but as to •future ones may be controlling. Lewis’ Southerland, Stat. Const. (2d ed.) §358; Dequindre v. Williams (1869), 31 Ind. 444, 450; McCleary v. Babcock (1907), 169 Ind. 228, 238, 82 N. E. 453; State, ex rel. v. Harrison (1888), 116 Ind. 300, 19 N. E. 146; Sedgwick, Stat. and Const. Laws 252; Endlich, Int. Stat. §365.
Previous to 1913, §62 of the highway act of 1905 was probably of doubtful meaning in regard to the question of' rebuilding improved roads, but, in my opinion, when the legislature of 1913 by the attempt to amend the section by its (invalid) act approved March 14, 1913, supra, made express provision for rebuilding, it thereby construed the existing law as forbidding such work. The amendment approved on the following day (March 15, 1913) and under which this petition was filed,* omits, like the original §62 adopted in 1905 any mention of rebuilding or reimprovement. Consequently, we have here, not the mere interpretation of the words of the' act of March 15, 1913, supra, but the interpretation of the act in the light of the construction
On March 11, 1915, the legislature again amended said §62, by which reimprovement is authorized. Acts 1915 p. 680. When that amendment was made the action here was pending in the court below, and because of the last proviso in the act, it did not affect or apply to pending actions, and consequently this case must be considered as though the legislature of 1915 had not acted on the subject. For the reasons stated, I am constrained to dissent from the majority opinion.
Note. — Reported in 112 N. E. 771.