94

Similar rulings have been made in other jurisdictions, and the result of all the authorities seems to be that the provision in question was intended to limit legislation which grants, modifies or destroys the rights of parties, but to have no application to acts which simply adopt or make applicable the provisions of other acts relating to remedies or methods of procedure. The supreme court of Pennsylvania says: "When there is an established system of procedure in certain cases, whether it be by common law or statute or joint operation of both, a new act applying such procedure to a new class of cases by general reference to it is not a violation of section 6, article 3, although it may operate to some extent as an extension of a previous statute." 95 An act which provides that one locality shall be governed, in respect to stock running at large, by the provisions of a law enacted for another locality, is within the provision.96

Div. 17, 48 N. Y. S. 1043; Matter of Buffalo Traction Co., 25 App. Div. 447, 49 N. Y. S. 1052; Choate v. Buffalo, 39 App. Div. 379, 57 N. Y. S. 383; People v. Davis, 78 App. Div. 570, 79 N. Y. S. 803.

94 Childs v. State, 97 Ala. 49, 12 So. 441; Birmingham Union Ry. Co. v. Elyton Land Co., 114 Ala. 70, 21 So. 314; Cobb v. Vary, 120 Ala. 263, 24 So. 442; City Council v. Birdsong, 126 Ala. 632, 28 So. 532; Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384; State v. Hunter, 69 Ark. 548, 64 S. W. 885; Lloyd v. Smith, 176 Pa. St. 213, 35 Atl. 199; Knisely v. Cotterel, 196 Pa. St. 614, 46 Atl. 861, 50 L. R. A. 86; Greenfield Ave., 191 Pa. St. 290, 43 Atl. 290; James Smith Woolen Machinery Co. v. Browne, 206 Pa. St. 543; Krause v. Penn. R. R. Co., 19 Phila. 436; Geer v. Ouray County Com'rs.

97 Fed. 435, 38 C. C. A. 250; St. Louis & S. F. R. R. Co. v. South. western Tel. & Tel. Co., 121 Fed. 276. 58 C. C. A. 198. Compare Bay Shel Road Co. v. O'Donnell, 87 Ala. 376 6 So. 119. In the latter case the court says: "The purpose of this constitutional requirement was to have each bill considered by the general assembly, in and of itself present the full scope, operation and effect of the proposed law, so that members might know and in telligently consider the details of every measure, and vote neither aye or nay in ‘blind ignorance of its provisions, or even in trusting confidence to the representations of others.""

95 James Smith Woolen Machinery Co. v. Browne, 206 Pa. St. 543. 96 Street v. Hooten, 131 Ala. 492, 32 So. 580.

CHAPTER VIII.

REPEALS AND REPEALING ACTS.

§ 244 (136). Duration of statutes and power of repeal. Statutes are perpetual when no time is stated.1 A temporary statute operates until its time expires. The operation of statutes may be suspended; then they will come into operation when the period of suspension expires.3 A temporary statute made perpetual before its expiration is in effect perpetual from the beginning. Statutes have this duration subject to the continuous power of repeal. A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised

6

1 United States v. Gear, 3 How. tinue longer than the real disabil 120, 11 L. Ed. 523.

2 Brown v. Barry, 3 Dall. 365. 3 A state of war between the governments of the creditor and debtor suspends the right and opportunity of a citizen of one belligerent to sue in the courts of the other, and as a consequence the statute of limitations is suspended during the existence of the war, and that time is not computed in limitation of the action. Hanger v. Abbott, 6 Wall. 532, 18 L. Ed. 939. The implied suspension should not con

ity barred the institution of the action. Braun v. Sauerwein, 10 Wall. 218, 19 L. Ed. 895; Heinssen v. State, 14 Colo. 228, 23 Pac. 995; People v. Murphy, 202 Ill. 493, 67 N. E. 226; State v. Sawell, 107 Wis. 300, 83 N. W. 296.

4 Dingley v. Moor, Cro. Eliz. 750; Rex v. Morgan, Str. 1066; Rex v. Swiney, Alcock & Napier, 131.

5 Musgrove v. Vicksburg, etc. R. R. Co., 50 Miss. 677.

6 Bloomer v. Stolley, 5 McLean, 158, Fed. Cas. No. 1559; Swift v.

at the same session at which the original act was passed;" and even while a bill is in its progress and before it becomes a law. The legislature cannot bind a future legisla ture to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes.10

§ 245. Repealing effect of an unconstitutional statute. A repealing clause in a statute may be valid, although every other clause is unconstitutional, if such is plainly the legislative intent." But where the repeal is intended to clear the way for the operation of the act containing the repealing clause, thereby showing an intention to displace the old law with the new, if the latter is unconstitutional the repealing clause would be dependent and inoperative.12 "Where the evident purpose of the repeal is to displace

Newport, 7 Bush, 37;
Commonwealth, 12 id.

McNeil v. 727; Moore v. New Orleans, 32 La. Ann. 726; City Council v. Baptist Church, 4 Strob. 306; Files, Auditor, v. Fuller, 44 Ark. 273; Wall v. State, 23 Ind. 153; De Groot v. United States, 5 Wall. 419, 18 L. Ed. 700; Monet v. Jones, 10 Sm. & Mar. 237; Chambers v. State, 25 Tex. 307; Gilleland v. Schuyler, 9 Kan. 569. See Oleson v. Railroad Co., 36 Wis. 383; Adam v. Wright, 84 Ga. 720, 11 S. E. 893. 7 Spencer v. State, 5 Ind. 41, 50; Ham v. State, 7 Blackf. 314; Attorney-General v. Brown, 1 Wis. 513; In re Oregon, etc. Co., 3 Sawy. 614, Fed. Cas. No. 10,561; Rex v. Middlesex Justices, 2 B. & Ad. 818; Bourgignon, etc. Ass'n v. Commonwealth, 98 Pa. St. 54; People v. Lyttle, 1 Idaho, 143; Houghton Co. v. Commissioners of St. L. O., 23 Mich. 270; Brown v. Barry, 3 Dall. 365. See Manlove v. White, 8 Cal. 376.

8 Southwark Bank v. Commonwealth, 26 Pa. St. 446.

9 Kellogg v. Oshkosh, 14 Wis. 623. 10 Mongeon v. People, 55 N. Y. 613. 11 Ely v. Thompson, 3 A. K. Marsh. 70; State v. Blend, 121 Ind. 514, 23 N. E. 511, 16 Am. St. Rep. 411. In the latter case the repealing clause was held void, but the court said that the legislature may use such language in a repealing clause attached to an unconstitutional statute as to leave no doubt of its intention to repeal a former law in any event. "Where, however, it is not clear that the legislature, by a repealing clause, attached to an unconstitutional act, intended to repeal the former statute upon the same subject, except upon the supposition that the new act would take the place of the former one, the repealing clause falls with the act to which it is attached."

12 Randolph v. Builders' & Painters' Supply Co., 106 Ala. 501, 17 So.

the old law and substitute the new in its stead, the repealing section or clause, being dependent upon that purpose of substitution, necessarily falls when falls the main purpose of the act." 13 An unconstitutional statute can have no effect to repeal former laws or parts of laws by implication, since, being void, it is not inconsistent with such former laws.14

§ 246 (137). Modes of repeal, express or implied — Effect of disuse. A repeal will take effect from any subsequent statute in which the legislature gives a clear expression of its will for that purpose.15 The word "repeal" may be used

in a limited sense.16 The suspension of a statute for a limited time is not a repeal it properly signifies the abrogation of one statute by another.18 It is express when declared in direct terms; implied when the intention to repeal is inferred from subsequent repugnant legislation. In neither form will the repeal be effected and operative until the repealing statute goes into effect.19

Laws are presumed to be passed with deliberation, and with a knowledge of all existing laws on the same subject.20 If they profess to make a change, by substitution, of new for old provisions, a repeal to some extent is thus suggested, and the extent readily ascertained. Thus, amendment is frequently made by enacting that a certain section shall be so amended as "to read as follows;" then inserting the substituted provision entire without specification of the change. The parts of the former law left out are repealed. This intention is manifest." There is a negative necessarily implied that such eliminated portion shall no longer be in force. The re-enacted portions are continuations and have force

v. Leard, 30 Ind. 171. A recital in a statute that a former statute was or was not repealed is not conclusive, for it is but a legislative declaration on a judicial question. United States v. Claflin, 97 U. S. 546, 24 L. Ed. 1082, 1085; Ogden v. Blackledge, 2 Cranch, 272, 2 L. Ed. 276. Courts cannot regard a statute as repealed by non-user alone. Pearson v. International Distillery, 72 Iowa, 348, 34 N. W. 1.

16 Smith v. People, 47 N. Y. 330, 338: Rex v. Rogers, 10 East, 573; Camden v. Anderson, 6 T. R. 723; State v. Baldwin, 45 Conn. 134; Robertson v. Demoss, 23 Miss. 298, 301; State v. County Court, 53 Mo. 128. See Hirschburg v. People, 6 Colo. 145; Warren R. R. Co. v. Belvidere, 35 N. J. L. 584, 587.

17 Brown v. Barry, 3 Dall. 365.

18 Abb. L. Dic., tit. Repeal; Butte & B. Con. Min. Co. v. Mont. Ore Purchasing Co., 24 Mont. 125, 60 Pac. 1039.

19 Spaulding v. Alford, 1 Pick. 33. 20 Bowen v. Lease, 5 Hill, 221, 226; Landis v. Landis, 39 N. J. L. 274, 277. 21 Moore v. Mausert, 49 N. Y. 332; People v. Supervisors, 67 id. 109, 23 Am. Rep. 94; McRoberts v. Washburne, 10 Minn. 23; State v. Andrews, 20 Tex. 230; Gossler v. Goodrich, 3 Cliff. 71, Fed. Cas. No. 5631; State v. Ingersoll, 17 Wis. 631; Goodno v. Oshkosh, 31 Wis. 127; Breitung v. Lindauer, 37 Mich. 217; Longlois v. Longlois, 48 Ind. 60; Mosby v. Ins. Co., 31 Gratt. 629; State v. Wish, 15 Neb. 448, 19 N. W. 686; ante, § 237. See Hirschburg v. People, 6 Colo. 145.