Board of Commissioners v. State ex rel. Baker

Morris, C. J. Mandamus action by appellee against appellant. The complaint avers that relator Baker was elected county surveyor of Hamilton County in 1914, and entered on the discharge of the duties of the office on January 1, 1915;. that he succeeded appellant Wann, whose term as surveyor expired December 31, 1914; that at said time there were a number of uncompleted ditches and highway improvements under construction in the county, in which Wann had been appointed superintendent by the county board; that relator, on January 1, 1915, demanded of Wann the books and papers in his possession relating to said uncompleted improvements; that the demand was refused, and Wann claims to be the legal superintendent of said incomplete improvements; that relator also demanded of the board that it order Wann to turn over the books and papers to relator, but this demand was refused and the board is recognizing Wann as the lawful superintendent of construction in the named cases. Appellant’s demurrer to the complaint was overruled and this ruling constitutes the sole alleged error here assigned. 1. [420] 2. 1. 3. 1. [419] Chapter 40 of the acts of 1913 (Acts 1913 p. 69, §9510a et seq. Burns 1914) requires the giving of bonds by county surveyors, and §3 of the act (§9510e Burns 1914) provides that no additional bond shall be exacted of the surveyor when he is appointed a superintendent of any public work. It is conceded by relator that prior to the taking effect of the act of 1913 when a county sur [420] veyor was appointed superintendent of construction of a drain, under §6143 Burns 1914, Acts 1907 p. 508, §4, he retained charge of the work until its completion, although his term of office expired in the meantime. See, also, §§7715, 7716, 7730 Burns 1914, Acts 1905 p. 521, §§66, 67, 79; Houser v. State, ex rel. (1915), ante 88, 110 N. E. 665. But relator contends that since .said enactment the duties of a surveyor, so appointed to superintend, end with his term of office, and that his successor must take charge of such uncompleted work. We can not assent to such proposition. Repeals and amendments by implication are not favored. Cleveland, etc., R. Co. v. Blind (1914), 182 Ind. 398, 105 N. E. 483, 491. Chapter 40, supra, makes no express provision for the surveyor, at the close of his term, to turn over to his successor the books and papers in his possession relating to uncompleted work in his charge, or to make any report of his former action, nor is there any express provision for the performance of any duty, relating to uncompleted work, by the new official. The act simply relieves the surveyor of the necessity of giving an additional bond when he may be appointed superintendent of construction work. Moreover, there is an additional reason here for denying relator’s contention. Of Course, the legislative intent, express or implied, must be given effect when ascertained. In seeking such intent, however, courts may invoke the aid of other acts of the ■ legislature at the same session, even if such acts are unconstitutional or were vetoed. House Bill No. 524 was passed by both houses of the General Assembly of 1913. It provides expressly that on the expiration of a term of office of a county surveyor he should make a report of his work [421] as superintendent of uncompleted improvements referred to Mm, whereupon such work should be referred to his successor in office. This bill was passed subsequent to the enactment of chapter 40, supra, and must be held a legislative interpretation of that act. This bill was vetoed by Governor Ralston on March 13, 1913. He filed it in the office of the secretary of state with his objections thereto. Woessner v. Bullock (1911), 176 Ind. 166, 93 N. E. 1057. One of Ms objections to the bill was that it was unwise in turmng over to inexperienced and umnformed officers the completion of important public work. The bill and objections were referred to the General Assembly of 1915, which failed to pass it. §14, Art. 5, Constitution of Indiana. We are of the opimon that relator was not entitled to any relief sought. Judgment reversed with instructions to sustain the demurrer. Note. — Reported in 111 N. E. 417. For a discussion of the implied repeal of a statute by code revision or reenactment, see 5 Ann. Cas. 202. See, also, under (2) 36 Cyc 1071; (3) 36 Cyc 1106, 1151.