that limit; effect will not be given to a transgressive bequest in excess of the amount authorized.” 21a

A local act directed the trustees of a turnpike to keep their accounts and proceedings in books to which all persons should have access. A subsequent general turnpike act recites the importance of a uniform system to be adhered to in the laws relating to turnpikes, and enacted that former laws should continue in force, except as they were thereby varied or repealed; that the trustees should keep their accounts in a book to be open to the inspection of the trustees and creditors of the tolls, and that the book of their proceedings should be open to the inspection of the trustees. It was held that the provision in the local act giving a right of access to all persons was repealed. Thus it will be seen that the grant by the legislature of a power or right which is inconsistent with one already possessed will repeal or modify it.23 It is different and inconsistent when its exercise is made to depend on different conditions, or it is conditioned on different things. So, conferring a new right will displace and repeal one previously granted, where their co-existence would be inconvenient, or it otherwise is justly inferable that the legislature intended a repeal.25 It will, however, be deemed cumulative if there are no negative words and no positive repugnance.26

§ 255 (146). Repeal by radical change of leading part or system. An intention to repeal certain statutory provisions may be inferred from radical changes or abolition of the leading parts of the statute to which they were conditions or ancillary. The 7 Geo. I., chapter 21, prohibited

27

21s Chamberlain v. Chamberlain,

43 N. Y. 424, 438, 439.

25 Steward v. Greaves, 10 M. & W. 711; O'Flaherty v. McDowell, 6

22 Rex v. Northleach & Witney H. L. Cas. 142; Davison v. Farmer, Road, 5 B. & Ad. 978.

23 Korah v. Ottawa, 32 Ill. 121, 83 Am. Dec. 255; Gibbons v. Brittenum, 56 Miss. 232; Farley v. De Waters, 2 Daly, 192.

6 Ex. 242, 256; Chapman v. Milvian, 5 Ex. 61.

26 Gohen v. Texas Pac. R. R. Co., 2 Woods, 346.

27 Missouri Pac. Ry. Co. v. Park,

24 Gwinner v. Lehigh, etc. R. R. 66 Kan. 248, 71 Pac. 586; State v. Co., 55 Pa. St. 126.

Estep, 66 Kan. 416, 71 Pac. 857.

bottomry loans by Englishmen to foreigners on foreign ships engaged in the Indian trade. This restriction was held silently repealed by the subsequent enactments which put an end to the monopoly of the East India Company and threw its trade open to foreign as well as to British ships.28 An act providing an entirely new system for the compensation of county officers repeals all prior laws on the subject.29 In the case cited the court says: "But if a statute embrace the essential provisions of an antecedent one on the same subject, and formulate a new system, the intention that the new shall be a substitute for the old is manifest, although there be no expressed intention to that effect."

§ 256 (147). Effect of clause repealing all acts and parts of acts inconsistent with new law. Affirmative statutes which contain no reference to existing statutes, either to amend or repeal them, import that the law-maker has no conscious purpose to affect them, unless by congruous addition. On the other hand, when there is inserted in a statute a provision declaring a repeal of all inconsistent acts and parts of acts, there is an assumption that the new rule to some extent is repugnant to some law enacted before. There is a repeal to the extent of any repugnancy in either case, but no farther. The insertion, therefore, of such a general repealing clause adds nothing to the repealing effect of the act.30 But some cases hold that the insertion of such a clause has a restraining effect on the repealing force of the new statute," and that a new statute intended as a

28 The India, Brown & L. 221. 29 Commonwealth v. Mann, 168 Pa. St. 290, 31 Atl. 1003; Commonwealth v. Allegheny County, 168 Pa. St. 303, 31 Atl. 1061.

30 Reading v. Shepp, 2 Pa. Dist. Ct. 137; North Towanda v. Bradford County, 2 Pa. Dist. Ct. 517; State v. Yardley, 95 Tenn. 516, 32 S. W. 481, 34 L. R. A. 656.

31 Maxwell v. State, 89 Ala. 150, 7

So. 824; Birmingham B. & L. Ass'n v. May & T. Hardware Co., 99 Ala. 276, 13 So. 612; Bank of British North Am. v. Cahn, 79 Cal. 463, 21 Pac. 863; De Gravelle v. Iberia, etc. Dr. Dist., 104 La. 703, 29 So. 302; People v. McAllister, 10 Utah, 357, 37 Pac. 578; Pierce v. Commercial Invest. Co., 30 Wash. 272, 70 Pac. 496.

substitute or revision of a former one, if it has this general repealing clause, will not repeal the provisions of the former law which are not inconsistent with the new. The clause repealing all inconsistent acts and parts of acts bas sometimes been classed with express repeals," but it has been held not to be an express repeal within the meaning of a constitutional provision as to repeals. It is to be supposed that courts will be less inclined against recognizing repugnancy in applying such statutes, while, in dealing with those of the other class, they will, as principle and authority requires, be astute to find some reasonable mode of reconciling them with prior statutes, so as to avoid a repeal by implication. An act in general terms repealing all conflicting provisions of previous acts, it is said, will have the effect to repeal all acts identical with any of those

35

32 Johnson v. Southern Mut. B. & L. Ass'n, 97 Ga. 622, 25 S. E. 358; People v. Van Pelt, 130 Mich. 621, 90 N. W. 424; Barden v. Wells, 14 Mont. 462, 36 Pac. 1046; Jobb v. Meagher County, 20 Mont. 424, 51 Pac. 1034; State v. Craig, 22 Ohio C. C. 441; Hurst v. Samuels, 29 S. C. 476, 7 S. E. 822; Co-operative S. & L. Ass'n v. Fawick, 11 S. D. 89, 79 N. W. 847; Cosh-Murray Co. v. Tuttich, 10 Wash. 449, 38 Pac. 1134: Holden v. Minnesota, 137 U. S. 483, 11 S. C. Rep. 143, 34 L. Ed. 734. But see State v. Welbers, 11 S. D. 86, 75 N. W. 820; State v. Carron Hill Coal Co., 4 Wash. 422, 30 Pac. 728; post, S 269-271.

33 Bish. W. Laws, § 112a; State v. Kelley, 34 N. J. L. 75, 77; Commonwealth v. Churchill, 2 Met. 118. 34 State v. Yardley, 95 Tenn. 546, 32 S. W. 481, 34 L. R. A. 656. In this case the court says: "The words of the fourth section, 'that

all laws and parts of laws in conflict with this act be, and the same are hereby, repealed,' do not make it an expressly repealing act. Really that section adds nothing of virtue or meaning to the act, and takes nothing from it. All prior conflicting laws and parts of laws were impliedly repealed by the former sections of the act, and, as a consequence, no such laws or parts of laws were left for the fourth section to operate upon. That section was, therefore, useless, and of no force or effect whatever. It had no office to perform and performed none. Its presence in the bill did not make the act a repealing law or a non-repealing law, and it will not be regarded for the purpose of vitiating the law, nor will it be permitted to have that effect."

35 Rex v. Northleach & Witney Road, 5 B. & Ad. 978.

36

expressly repealed. But such a clause will not repeal what is merely inconsistent with the void part of the new law. The insertion of this clause will not give a general act any additional efficacy to repeal local or special laws.38 A statute providing a remedy for an illegal tax should not be deemed embraced in a general repeal of all laws relating to assessments in an act prescribing and regulating the method of assessing taxes.39 A general clause in an act otherwise unconstitutional, repealing all acts and parts of acts contravening its provisions, will have no effect; for, being void, no acts or parts of acts could contravere its provisions. Nor will an unconstitutional amendment impliedly repeal the original act by reason of conflict."

§ 257. Effect of repeal of statute adopted by refer ence. A statute which refers to and adopts the provisions of another statute is not repealed by the subsequent repeal of the original statute adopted, but the provisions adopted continue in force so far as the new statute is concerned, the same as before the repeal." A statute providing for submitting the question of the removal of a county seat to a popular vote at the April election was held not affected by a statute which discontinued such elections or postponed

36 State v. Barrow, 30 La. Ann. Pt. I, 657. In Mahoney v. Wright, 10 Irish C. L. (N. S.) 420, Lefroy, C. J., said: "It is settled by authority that the recital of an intention merely, in a subsequent statute, to repeal a former specific statute, will not operate by implication to repeal the former statute, and that, in order to effect such a repeal, there must be a clause of repeal in the repealing statute."

37 Board of County Com'rs v. First Nat. Bank, 6 Colo. App. 423, 40 Pac. 894.

38 Town School Dist. v. School District, 72 Vt. 451, 48 Atl. 697;

State v. Carson, 6 Wash. 250, 33
Pac. 428. See post, $$ 274-278.

39 Shear v. Commissioners, 14 Fla.

146.

40 Ante, § 246.

41 Ex parte Davis, 21 Fed. 396. 42 Phoenix Ass. Co. v. Fire Department, 117 Ala. 631, 23 So. 843, 42 L. R. A. 468; Shull v. Barton, 58 Neb. 741, 79 N. W. 732; Wick v. Ft. Plain, etc. R. R. Co., 27 App. Div. 577, 50 N. Y. S. 479; People v. Webster, 8 Misc. 133, 28 N. Y. S. 646; Sika v. Chicago, etc. R. R. Co., 21 Wis. 370; Schwenke v. Union Depot & R. R. Co., 7 Colo. 512, 5 Pac. 816; Regina v. Stock, 8 Nev. & Perry, 420.

them until October. These statutes are not laws on the same subject. The former should be construed as fixing the time for taking the vote, and would not be changed if the April elections for election of officers were abolished." The re-enactment of some of the sections of one act, in a subsequent one providing for a different scheme, is not a repeal by implication of these sections in the first act; nor does a provision in the second act suspending the operation of the similar sections in that act have the effect to suspend the operation of those in the first act."

§ 258 (148). Reconcilement of affirmative statutesIllustrations. The cases are very numerous in which an important question is decided upon the general principle that a statute without negative words will not repeal existing statutes, unless there is an unavoidable repugnancy. A reference to a multitude of such cases has been given in a note to another section. It is not an exhaustive list, but is full enough for practical purposes. It is now proposed to analyze a few well-considered cases to illustrate the practical operation of the principle requiring the reconcilement, if possible, of statutes, where there is a question of inconsistency between them.

In McCool v. Smith 46 a plaintiff claiming title by descent from an illegitimate child brought ejectment, having, as the law then stood, no title. Pending the action a retrospective amendatory act was passed giving effect to an existing act from an earlier date and thereby covering the date of the descent in question, conferring the right to inherit on such children "the same as if such act had been in force at the time of such death." This amendatory statute was held not to repeal, as to such cases, the common-law rule, and a state statute declaratory of it, requiring a plaintiff to have title at the commencement of his action. The general rule being that repeals by implication are not favored, there will be no such repeal if it be possible to

43 Cole v. Supervisors, 11 Iowa, 552. 44 Powers v. Shepard, 48 N. Y. 540.

45 Ante, § 239.

461 Black, 459, 17 L. Ed. 218.