186 Ind. 349 | Ind. | 1917
Appellants brought this suit on their own behalf, and, as they allege, on behalf of 200 other persons similarly interested and situated, to restrain appellee, as treasurer of Madison county, from levying on and selling their household goods for the payment
In support of this appeal appellants rest their ease on two propositions: (1) That §119 (Acts 1895 p. 319) of the fee and salary law, as amended in 1897, Acts 1897 p. 171, §7332 Burns 1914, is controlling.' (2) That this section is constitutional, and a valid exercise of the legislative power. The latter claim is not controverted by appellee, nor does he attempt to sustain the judgment of the lower court on that theory, but he does insist that §153, Acts 1891 p. 199 — an act concerning taxation — as amended in 1903, §21, Acts 1903 p. 49, §10324 Burns 1914,- repealed §7332, supra, and that now “there is no statute of this state which exempts household goods or furniture from levy and sale in any amount or under any condition, by the county treasurer to satisfy delinquent taxes assessed against the owner thereof.”
The question then is, Was §7332, supra, repealed by §10324, supra?
From an examination of these legislative enactments it appears that §153 was a part of the act of 1891, (Acts 1891 p. 199, supra). The amendatory act of 1903, supra, had a general repealing clause, §39: “All laws and parts of laws in conflict with the provisions of this act are hereby repealed.” It will also be observed that ,the act of 1895, supra §138, expressly provides that: “All laws and parts of laws in conflict with this act, are hereby repealed to the extent of such conflict.”
The act of 1891, supra, is entitled: “An act concerning taxation, repealing all laws in conflict therewith, and declaring an emergency.” The title of the act of 1903, supra, expressly states that it is amendatory of certain sections of the act of 1891, supra, among which is §153. The act of 1895, supra, is entitled “An act fix-.
Section 119 of this act was re-enacted in 1897 word for word except that the commission which the treasurer shall receive was changed from four per cent, to six per cent. It is also noticeable that §119 and §153 are word for word the same except that in §119 the following is omitted: “and the treasurer shall, if he have reason to believe that such delinquent have money, effects, or other property in his possession or on deposit that can be reached by any remedy known to the law, make known such facts to the prosecuting attorney, who shall cause such proceedings to be brought as will secure the payment of such delinquency and for his services in so doing shall receive ten per cent, of such money so collected and a docket fee of ten dollars, to be “taxed as costs in such action and paid out of moneys so collected.” And in place of the part omitted is the following: “Provided, however, That nothing in this section shall authorize the treasurer in any county in this, state to levy upon or sell for delinquent taxes the household goods of any person, where the household goods of such person do not exceed the value of one hundred dollars, as shown by the assessment list of said person for the year for which said taxes are delinquent. Each county treasurer shall be allowed, in addition to the salary provided by this act, a com-, mission of six per cent, upon all delinquent taxes collected by him.”
Both §153 and §119, as also §21 of the amendatory act, have-to do with certain duties of the treasurer concerning the collection of delinquent taxes out of personal property, and authorizing the collection of his costs, certain fees and commissions therefor. The amendatory §21 amended §153 only by changing the
From what has been said, it will be observed that to a large extent the two sections — §§153 and 119 supra— cover practically the same ground, except in the former the treasury is to acquaint the prosecuting attorney with certain facts, and in the latter he is prohibited from levying upon and selling certain personal property designated -as “household goods’ where the value of the same, as fixed by the assessment, does not exceed $100. While this latter act might be considered munificent in character, and not quite in line with the thought and policy of the State making it the duty of all persons to bear their share of the public burdens necessary for the due administration-of public affairs and for the protection of the rights and privileges which the government affords them, yet there is another side to this question equally important and in which the State is equally interested; that is to say, under certain conditions ánd circumstances, she furnishes her people food and clothing. She looks to the welfare
The legislature when drafting §119 evidently had before it §153, and if it had been the intention to re-enact the whole section, which required the treasurer to report certain facts to the prosecuting attorney, it might well have done so, and then followed with the proviso, but this it did not do. From this fact alone, and from the general repealing clause, we might be justified, in holding that the legislature intended that the county treasurer should thereafter be controlled by §119 instead of §153, but in addition, the title of the act of which §119
Judgment reversed, with instructions to overrule the demurrer to the complaint, and' for further proceedings not inconsistent with this opinion.
Note. — Reported in 115 N. E. 83. Statutes: (a) rule of construction as to repeal, 88 Am. St. 272; (b), construction together of contemporaneous, in pari materia, 18 Ann. Cas. 424, Ann. Cas. 1915 A 186; (c) implied repeal, by code, revision or re-enactment, 5 Ann. Cas. 202. See under (1) 36 Cyc 1055; (2) 37 Cyc 885; (4) 36 Cyc 1076, 1149; (5) 36 Cyc 1077.