legislation providing powers concerning eminent domain, administrative law and criminal law combined in Indiana Port Commission Act
How later courts described this case
- legislation providing powers concerning eminent domain, administrative law and criminal law combined in Indiana Port Commission Act
- “The Constitution has to be read as a whole and not as a part.”
Written by the judges who cited it.
The opinion
Opinion on Motion for Leave to File Amended Petition for Rehearing and for Stay
Per Curiam.
Appellees, Dallas Sells et al., filed “A Motion for Leave to File an Amended Petition for Rehearing and For Stay of Execution of Judgment.” The appellees have raised some question as to the authority or propriety of this court in making corrections in the original opinion on consideration of a petition for rehearing in this case. We denied the petition for rehearing, with a short opinion, noting the corrections that had been made. We said:
“The court, on rehearing, on reviewing the record finds that the record in fact does not contain the Senate Journal, and the previous opinion has therefore been amended on rehearing to delete the statement as to what the Senate Journal disclosed in this case and to substitute therefor a statement as to the contentions of appellees, as to the contents of the Senate Journal.
“Although not mentioned in the petitions for rehearing, we have also corrected a minor clerical error by substituting the words twenty-four cents for twenty-five cents appearing in the opinion.
“Subject to the foregoing comments, we now on rehearing adhere to the conclusions reached in our previous opinion.”
No one can seriously question our right or duty to make corrections in an opinion to conform to the record when they are brought to the attention of the court in a petition for rehearing. Of course, the very purpose of a petition for rehearing is *450 to enable the court to make any modifications or corrections that it finds advisable. Such changes in the original opinion have in the past been made either by changing the original opinion directly or by reference in the opinion on rehearing. 1
We point out that whether the corrections in the original draft of the opinion had been made or not, the appellees were not prejudiced or misled. Even if we assumed, either through judicial notice or that the record in the trial court below showed the vote in the Senate Journal to be 25 ayes and 24 noes for the bill in question, we would still be compelled to deny the appellees’ contention that we should go behind the certificate of the presiding officers of the legislature authenticating the passage of the bill. To have accepted appellees’ contention would have required that we overrule the precedent of a long-standing line of cases to the contrary going back nearly a century in this state beginning with the case of Evans, Auditor of State v. Browne (1869), 30 Ind. 514 . The reasoning connected with this precedent is made clear in the original opinion in this case and should be no surprise to any of the parties upon a petition for rehearing.
This court would have been confronted also with a further constitutional provision which says:
“ . . . whenever the Senate shall be equally divided he (the Lieutenant Governor) shall give the . casting vote.” Art. 5, Sec. 21, Constitution of Indiana.
If the Senate were equally divided in the passage of a bill, it is obvious that a bill could not receive a vote of “a majority of the members elected to each house” as provided in another part (Art. 4, Sec. 25) *451 of the Constitution of this State, since the Lieutenant Governor, in breaking the tie in voting, is not “an elected member” of the Senate. There could never be, in the case where the Lieutenant Governor voted in a tie, “a majority of the members elected” voting in favor of the bill, as provided in Art. 4, Sec. 25. Article 5, Sec. 21 apparently conflicts to some extent with Article 4, Sec. 25 when tie voting is involved in the Senate. The Constitution has to be read as a whole and not as a part. The solution to this question is not as simple as some people, untrained in the law and unfamiliar with the Indiana Constitution, may think. We, however, do not and need not decide this question in view of the consistent, long-standing precedent in the cases beginning with Evans v. Browne, supra, which have held that this court will not go behind a properly authenticated certificate of the presiding officers of the two houses of the legislature that a bill has been duly enacted, except in the case of fraud as previously stated in our opinion.
We have given due consideration to appellees’ motion for leave to file an amended petition for rehearing. We find that the appellees have not been prejudiced as they claim, since we did not say in the opinion that we took “judicial notice” of the vote recorded in the Senate Journal. We have merely corrected a statement in the opinion concerning the record with reference to the Senate Journal. Judge Niblack in the trial court, following the above mentioned long-standing precedent on this issue, excluded all such evidence and there was nothing before us other than what the “appellees contend” with reference to such matter.
Motion overruled.
*452 Note. — Reported in 192 N. E. 2d 753 . Rehearing denied 193 N. E. 2d 359 . Motion for leave to file amended petition for rehearing and for stay denied 193 N. E. 2d 359 .
. 2 I. L. E., Sec. 672; Indiana Trial & Appellate Practice, Sec. 2826.