cognizance of cases where title to real property was in question; for it would have been inoperative if the Court could not decide the question of ownership (a). [An act giving a court jurisdiction in general terms, and without restriction as to the amount claimed, over a certain kind of cases, was held to repeal, by implication, an earlier act under which its jurisdiction could be exercised only over a peculiar kind of such cases."] The judicature Act of 1873 repealing in general words all statutes inconsistent with it, and enacting that the costs of all proceedings in the High Court shall be in the discretion of the Court, and that where an action is tried by a jury, the costs shall follow the event unless the Judge, at the trial, or the Court otherwise orders, was held to repeal the Act of James I., which deprived a successful plaintiff of ́ costs in an action of slander when he did not recover as much as forty shillings damages (b). Where an Act made it actionable to sell a pirated copy of a work with knowledge that it was pirated, and a subsequent Act contained a similar provision, but without any mention of guilty knowledge, it was held that the earlier Act was so far abrogated that an action was maintainable for a sale made in ignorance of the piracy (a). Where an Act required that a consent should be given in writing attested by two witnesses, and a subsequent Act made the consent valid if in writing, but made no mention of witnesses, this silence was held to repeal by implication the provision which required them (c). Where an Act exempted from impressment all seamen employed in the Greenland fisheries, and a later one exempted seamen embarked for those fisheries whose names were registered and who gave security, it was held that the earlier was repealed pro tanto by the later Act (d). $200. Statutes Intended to Furnish Exclusive Rule.-[The "implied negative" referred to in the preceding section is (a) 11 & 12 Vict. c. 123, s. 3, 9 & 10 Vict. c. 95, s. 58; R. v. Harden, 2 E. & B. 288, 22 L. J. 299. 93 Farley v. De Watres, 2 Daly (N. Y.) 192. (b) Garnett v. Bradley, 3 App. 944. See also per Jessel, M. R., in Mersey Docks v. Lucas, 51 L. J. Q. B. 116; Gardner v. Whitford, 4 C. B. N. S. 665. (c) Cumberland v. Copeland, 1 H. & C. 194, 13 L. J. Ex. 353; per Jervis, C. J., in Jeffreys v. Boosey, 4 H. L. 943; and per Lord Wensleydale in Kyle v. Jeffreys, 3 Macq. 611, 31 L. J. Ex. 355n. See further, post, § 384. (d) Exp. Carruthers, 9 East, 44. to be found, indeed, wherever the later statute clearly intends to prescribe the only rule which is to be accepted as governing the case provided for; and where it does so, it repeals the earlier law by implication." Thus, where one of two acts for the assessment and collection of a tax required notice of the election to vote the tax to be posted ten days and published two weeks, and limited the tax to $1.50 on every $100; and the other required notice to be posted twenty days. and published three weeks, and limited the rate of taxation to 70 cents on every $100, it was held that the latter act must be deemed to repeal the former by implication."] If the co-existence of two sets of provisions would be destructive of the object for which the later act was passed, the earlier would be repealed by the later. Thus, when a local. act einpowered one body to name the streets and to number the houses in a town, and another local act gave the same power to another body, the earlier would be superseded by the later Act; for, to leave the power with both, would be to defeat the object of the Legislature (a). [So, where a general act relating to the establishment, management, etc., of boroughs, provided a method for the opening of streets therein by the town councils, it was held that thereby the general road law, prescribing a procedure for the laying out, etc., of highways by the courts of Quarter Sessions, was impliedly repealed as to boroughs falling under the first-mentioned act, it being impossible "that two independent and conflicting systems were designed by the legislature to apply to the streets of a single borough."** And where an act, repealing all provisions of laws repugnant to and inconsistent with it, directed that the sheriffs of certain counties should 4 See Daviess v. Fairbairn, 3 People v. Burt, 43 Cal. 561; (a) Daw v. Metropolitan Board, 31 L. J. C. P. 223, 12 C. B. N. S. 161. See Cortis v. Kent, Waterworks, 7 B. & C. 314; R. v. Middlesex, 2 B. & Ad. 818; Bates v. Winstanley, 4 M. & S. 429. [See New London, etc., R. R. Co. v. Boston, etc., R. R. Co., 102 Mass. 386.] 96 Re Alley in Kutztown, 2 Woodw. (Pa.) 373. And see, to similar effect: Re Spring Street, 112 Pa. St. 258. collect the taxes, it was held to repeal another, passed a few days before, creating the office of tax-collector in one of the counties enumerated." 100 §201. Revisions and Codifications.-[But possibly the strongest implication of a negative, very similar to that referred to in the preceding section, is found where subsequent statutes revising the whole matter of former ones, and evidently intended as substitutes for them, introduce a new rule upon the subject. In such cases, the later act, although it contains no words to that effect, must, in the principles of law, as well as in reason and common sense, operate to repeal the former the negative being implied from the "reasonable inference that the Legislature cannot be supposed to have intended that there should be two distinct enactments embracing the same subject matter in force at the same time.” If this could be the case, it is obvious that the later statute could become the law only so far as parties might choose to follow it; whereas, the mere fact that a statute is made shows, that, so far as it goes, and so far as it introduces a new rule of general application, it was intended as a substitute for, and to displace, an earlier one of equally general application. Thus, where, of two statutes relating to liens of laborers in manufactories and intended to protect the wages of such, the one last passed covered the entire subject matter, differing from the earlier one in substituting a limitation as to amount, instead of as to time; in naming as parties subject to the legislation all persons "owning or leasing forges, furnaces, rolling mills, nail factories, machine shops or foundries," instead of " owner or owners of any manufacturing establishment;" in making the wages protected a claim to be paid by the officer who sells the property, in the manner he is required to pay rent, instead of merely રી "lien on the establishment; " in preferring such claims in all assignments, to rank immediately before rent in case of death, and to be paid "in all cases of execution," instead of 101 97 People v. Lytle, 1 Idaho, 161. 98 Bartlett v. King, 12 Mass. 546, per Dewey, J. 99 Com'th v. Kelliher, 12 Allen (Mass.) 480, 481; Herron v. Carson, 26 W. Va. 62. 100 Barker v. Bell, 46 Ala. 216, 221. 101 See Ibid. 102 making them payable out of the proceeds of sale only in the event of death or insolvency,-it was held that the later act, upon the principle above stated, must be held impliedly to repeal the earlier. So an act providing a new system in cases of land damages for the laying out of roads, by requiring the county courts to institute and prosecute, in their names, in the circuit court, proceedings to ascertain the compensation to be paid, repeals by necessary implication a former act providing, that, in such cases, the county courts should award a writ of ad quod damnum returnable to such courts." So, again, where the subject of the incorporation and management of building associations was covered and regulated by acts imposing, in some respects, different modes of incorporation, different conditions, duties, powers and restrictions, as compared with former acts upon the same subject, it was held that the latter were impliedly repealed." And, indeed, the principle stated seems to have universal recognition." 103 105 $202. [The rule seems, indeed, to go further, and to work an implied repeal in all cases in which a general revision of the old law is made by the Legislature, with an intent to substitute the new legislation for the old.10 Upon this principle it has been applied to codifications;10 whilst, on the other 102 Johnston's Est., 33 Pa. St. 511. 103 Herron v. Carson, 26 W. Va. 62. 104 Cahall v. Cit. Mut. B'g Ass'n, 61 Ala. 232; Rhoads v. B'g Ass'n, 82 Pa. St. 180; Booz's App., 109 Id. 592. See Endl., Build. Ass'ns, $34 note. 105 See in addition to above cases, Norris v. Crocker, 13 How. 429; U. S. v. Tynen, 11 Wall. 88; King v. Cornell, 106 U. S. 395; U. S. v. Cheeseman, 3 Sawyer, 424; U. S. v. Barr, 4 Id. 254; Excelsior Petrol. Co. v. Embury, 67 Barb. (N. Y.) 261; Goodenow v. Buttrick, 7 Mass. 140; Com'th v. Cooley, 10 Pick. (Mass.) 39; Ill., etc., Canal v. Chicago, 14 Ill. 334; Andrews v. People, 75 Id. 605; State v. Conkling, 19 Cal. 501; Farr v. Brackett, 30 Vt. 344; Giddings v. Coxe, 31 Id. 60; Wakefield v. Phelps, 37 N. H. 295; Dowell v. State, 58 Ind. 333; 106 See People v. Carr, 36 Hun (N. Y.) 488; Weiss v. Mauch Chunk Iron Co., 58 Pa. St. 295, 302; Com'th_v. Cromley, 1 Ashim. (Pa.) 179; Prince George Co. v. Laurel, 51 Md. 457; Gorham v. Linckett, 6 B. Mon. (Ky.) 146; Rogers v. Watrous, 8 Tex. 62; Stirman v. State, 21 Id. 734; Harold v. State, 16 Tex. App. 157. 107 See State v. Harris, 10 Iowa 441; Ripley v. Gifford, 11 Id. 367; Barker v. Bell, 46 Ala. 216; Hartley v. Hartley, 3 Metc. (Ky.) 56; Thorpe v. Schooling, 7 Nev. 15, hand, the repealing effect of revising statutes and codifications has been frequently limited to such matters embraced in the old law as were omitted in the new, 108 or permitted to operate only in cases of manifest repugnancy109 and not beyond the immediate object of the codification,11o and even a failure to incorporate a statute in a revision was held not to be a repeal of it, where the act directing the revision declared that "all acts . . in force at the commencement of the . continued in full force and effect, unless repugnant to the acts passed or revised" at the same. But the general rule seems to be that statutes and parts of statutes omitted from a revision are to be considered as annulled, and are not to be revived by construction." session shall be 111 3203. Qualifications of Foregoing Rules.-[Where a statute of a state prescribes, as a rule of construction, that the provisions of any statute, so far as they are the same as any prior statute, are to be regarded as a continuation of the same, and not as a new enactment,"13 an act revising and consolidating former acts, and re-enacting their provisions in the same words, must, although expressly repealing the earlier. statutes, be construed as a continuation of them." And the rule of implied repeal is clearly inapplicable, also, where 108 See Bracken v. Smith, 39 N. J. Eq. 169; Georgia R. R. Co. v. Kirkpatrick, 35 Ga. 144; State v. Judge, 37 La. An. 578. 100 Lyon v. Fisk, 11 La. An. 444. 110 Whitehead v. Wells, 29 Ark. 99; and see Needham v. Thresher, 49 Cal. 393. 111 Cape Girardeau Co. Ct. v. Hill, 118 U. S. 68. See infra, § 203. 112 See Ellis v. Paige, 1 Pick. (Mass.) 43, 45; Rutland v. Mendon, Id. 154; Blackburn v. Walpole, 9 Id. 97; Stafford v. Creditors, 11 La. An. 470; Pingree v. Snell, 42 Me. 53; Broaddus v. Broaddus, 10 Bush (Ky.) 299; Campbell v. Case, 1 Dak. 17; Tafoya v. Garcia, 1 New Mex. 480. See, however, as to slight variations of language in re-enactments, etc., post, $$ 378 381. 113 Such a rule seems now to obtain, as to acts repealed or reenacted by a code or other revision, in Massachusetts, Wisconsin, Minnesota, Kentucky, Missouri, Washington Ter. Idaho Ter. and Utah Ter., and, generally, in Illinois, Kansas, Texas and California see Stimson, Amer. Stat. Law, p. 143, § 1043. But see Ibid., that no statute is considered in force merely because consistent with the provisions of the Code, but is held repealed unless expressly continued in force by the code or other revision, in Iowa, North Carolina, Tennessee, Texas, California, Mississippi, and Washington, Dakota and Montana Ter ritories. Expressly otherwise, however, in Missouri and South Carolina. 114 Scheftels v. Tabert, 46 Wis. |