98 Ind. 516 | Ind. | 1884
This was an information by the State, on the relation of the prosecuting attorney, charging the appellant with usurping the office of justice of, the peace in Center township, in Marion county, and asking for his ouster and exclusion therefrom.
The appellant answered to the effect that the board • of commissioners of Marion county, on January 15th, 1884,
The appellee replied, first, by the general denial, which was afterwards withdrawn; secondly, that the order made by the county board fixing the number of justices of the peace for said township required that one of them should be for the town of West Indianapolis in said township; that appellant, at said election, was elected as a justice of the peace for said town, and was so commissioned and qualified; that at the time of his election he did not reside, nor had he since resided, in said town, but that he then and since had resided in the city of Indianapolis in said township, and that he was exercising his office, not in said town, but in said city.
The appellant’s demurrer for want of facts was overruled to the second paragraph of the reply, and such further proceedings were had as resulted in a judgment commanding the appellant no longer to open, keep or maintain an office as justice of the peace in said city.
The sufficiency of the second paragraph of the reply depends upon the validity of the act of March 8,1883 (Acts 1883, p. 190), which is set out in full further on in this opinion.
The first section of “An act providing for the election and qualification of justices of the peace, and defining their jurisdiction, powers, and duties in civil cases,” approved June 9th, 1852, provided that fhe board of commissioners of the county should regulate the number of justices of the peace,.not to exceed three for each township, and one in addition thereto for each incorporated town therein. 2 G. & H. 576. The section above named was amended February 26th, 1867, by fixing the maximum number of justices of the peace in each township at three, one in addition thereto for each incorpo-
The act of 1883, above mentioned, is as follows:
“An act to amend section 1 of An act entitled an act providing for the election and qualification of justices of the peace, and defining their jurisdiction, powers, and duties in civil cases, approved June 9th, 1852, being section 1418 of the Revised Statutes, and declaring an emergency.
“(Approved March 8th, 1883.)
“ Section 1. Be it enacted, by the General Assembly of the State of Indiana, That section one of the above entitled act be amended to read as follows: Section 1. The number of justices of the peace in each township shall be regulated by the board of county commissioners of the county by proper orders of record; but the number shall not exceed two for each township, and one in addition thereto for each incorporated town therein, and one in addition thereto for each incorporated city therein; and authenticated copies of such orders shall be furnished by the auditor to the clerk of the circuit court: Provided, That when any justice of the peace is elected or appointed for any incorporated town or city, he shall reside and hold his court within the corporate limits of such town or city; and if any such justice of the peace shall reside outside of, or shall hereafter move out of, the corporate limits of such town or city, such office shall immediately become vacant.
“ Sec. 2. An emergency existing for the immediate taking effect of this act, it shall be in force from and after its passage.”
It is well settled by the decisions of this court that where a section of a statute is amended, it ceases to exist, and is superseded by the section as amended. It is also well settled that .an act of the Legislature which attempts to amend a section of the statute which has already been amended, is unconstitutional and void. Draper v. Falley, 33 Ind. 465 ; Blakemore v. Dolan, 50 Ind. 194; Ford v. Booker, 53 Ind.
The controversy in the present case is whether the act of 1883, above set out, was intended to amend the first section of the act of 1852 or the amendatory act of 1867. If designed as an amendment of the former, its invalidity is conceded,for the reason that the first section of the act of 1852 had ceased to exist by the amendment of 1867. Our conclusion, after careful consideration, is that the object of the act of 1883 was to amend the first section of the act of 1852. The reasons for this are apparent both in the title and body of the act of 1883. The title of..the act of 1883 sets out verbatim the title of the act of 1852, giving the dáte of its approval, specifies that it is an act to amend the first section of said act of 1852, and makes no reference by quotation, date, or otherwise, to the amendatory act of 1867. And then, after the enacting clause, the first section of the act of 1883 provides, “That section one of the above entitled act” (the act of 1852) “ be .amended to read as follows,” etc.
But it is insisted that the words “ being section 1418 of the Revised Statutes,” following the words “approved June 9th, 1852,” make it obvious that the legislative intent was to amend section 1 of the amendatory act of 1867, said section 1 of the latter act and section 1418 of the Revised Statutes of 1881 being the same. There is an evident mistake, but , from the title and body of the act of 1883, it is manifest that it occurred in assuming that section 1418, supra, was the first section of the act of 1852. The draughtsman of the bill for the act of 1883 must have had before him the act of 1852, overlooking entirely the amendatory act of 1867, and the bill thus drawn passed the Legislature without the error being-discovered. The cases cited from the decisions of this court show that similar errors in legislation are not of unfrequent occurrence.
Under the view thus taken the act of 1883 is void, whether it is regarded as an amendment of the first section of the act of 1852, or of the amendatory act of 1867. If of the former, it is invalid because that section was already repealed and superseded by the latter act. And if designed as an amendment of the act of 1867, it is void for failing to refer to the title of that act.
It may be also suggested that so much of the proviso in the first section of the act of 1883 as requires a justice of the peace elected for an incorporated town or city to reside therein is, if the act were not open to other objections, of
Reaching the conclusion that the act of 1883, supra, is void, we are compelled to hold that there was error in overruling the appellants’ demurrer to the second paragraph of the appellee’s reply. For this reason the judgment of the court below is reversed, with instructions to sustain said demurrer.