cable to all the counties of the state is repealed as to a particular county, and a still later act amends a section so partially repealed, the amendment will not be deemed to affect the excluded county. 66

68

Where a repealing act is repealed before it goes inte effect, it is nugatory and the original act stands.67 Where a local or special law is repealed by another local or special law and the latter is then repealed, it is held that the original act is not revived, if there is a general law covering the subject. An act imposing certain fees and duties upon auctioneers was amended "so as to read as follows," and the amendatory act repealed. The latter act contained provisions which indicated that the legislature supposed that the repeal revived the original act. Two years later the next legislature passed an act based upon the assumption that the original act was in force. It was held that this belief or assumption of the legislature could have no effect to revive the original act without appropriate words to that effect.69 Where a city was incorporated under a general law and afterwards under a special charter, it was held that the repeal of the latter did not restore the former organization.70

66 People v. Tyler, 36 Cal. 522.

67 Adam v. Wright, 84 Ga. 720, 11 S. E. 893.

again breathed into it. . . . The belief of the legislature of 1883, however, has not the slightest tend

68 Knox Street, 12 Pa. Supr. Ct. ency to prove what was the legal 534.

69 People v. Wilmerding, 136 N. Y. 363, 32 N. E. 1099. The court says: "A legislative intent to work a revival of a law which already, by legislative action, has been wholly annihilated is not alone sufficient to accomplish such revival. There must be some language used which is at least equivalent to an enactment before an act, which had become wholly extinct and blotted out, can be revived and have the breath of life

effect of the action of the legisla ture of 1868 upon the prior statutes. This is a simple question of law. We find from an examination of the act of 1868 that the act of 1866 was plainly and in unmistakable language repealed. The fact that the legislature of 1883 treated the third section of the act of 1866 as still alive is simply proof of a legislative error in regard to the law." pp. 373, 374.

70 Ruohs v. Athens, 91 Tenn. 20, 18 S. W. 400, 30 Am. St. Rep. 858

§ 289. Constitutional provisions as to repeals.—The constitution of Georgia provides as follows: "No law, or section of the code, shall be amended or repealed by mere reference to its title, or to the number of the section of the code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made."" A repealing act which gives the title of the act repealed and date of its approval is held to comply with the constitution." The constitution of Tennessee contains a similar provision reading as follows: "All acts which repeal, revive or amend former laws shall recite in their caption or otherwise the title or substance of the law repealed, revived or amended." An act to repeal certain sections of an act gave the title of the act containing the sections and the date of its passage, and was held suf ficient. It is held that these constitutional provisions do not apply to repeals by implication."

§ 290. Repeal by constitution.- Ordinarily constitutional provisions imposing limitations upon the legislative power are prospective in their operation and do not repeal existing statutes.75 But a constitutional provision may be so framed as to repeal all inconsistent legislation. The constitution of Mississippi, adopted in 1890, forbids local or special laws on various subjects, and among others exempting any person from jury, road, or other civil duty, and de

71 Const. 1877, art. 3, sec. 7, par. 17.

72 Adam v. Wright, 84 Ga. 720, 11 S. E. 893; Fullington v. Williams, 98 Ga. 807, 27 S. E. 183.

73 Ruohs v. Athens, 91 Tenn. 20, 18 S. W. 400, 30 Am. St. Rep. 858.

74 Johnson v. Southern Mut. B. & L. Ass'n, 97 Ga. 622, 25 S. E. 358; Collins v. Russell, 107 Ga. 423, 33 S. E. 444; Higgins v. Mitchell County, 6 Kan. App. 314, 51 Pac. 72; Lowe v. Bourbon County, 6 Kan. App. 603, 51 Pac. 579; Hunter

v. Memphis, 93 Tenn. 571, 26 S. W. 828; State v. Yardley, 95 Tenn. 546, 32 S. W. 481, 34 L. R. A. 656; Henley v. State, 98 Tenn. 665, 41 S. W. 352.

75 Pecot v. Police Jury, 41 La. Ann. 706, 6 So. 677; ante, § 190.

76 Griebel v. State, 111 Ind. 369, 12 N. E. 700; Fesler v. Brayton, 145 Ind. 71, 44 N. E. 37; Van Pelt v. Gardner, 54 Neb. 701, 75 N. W. 874; Remington v. Higgins, 6 S. D. 313, 60 N. W. 73.

clares that no person shall be exempted therefrom by force of any local or private law. The latter was held to repeal all local or private laws conferring such exemption." The constitution of Arkansas, adopted in 1864, contained the following: "And it is further hereby declared that all laws in force in this state on the 4th day of March, 1861, are still in force, not inconsistent with the provisions of this constitution and which have not expired by limitation therein contained." This was held, by implication, to repeal all laws passed subsequent to March 4, 1861.78 Before the new constitution of Ohio took effect, the legislature of that state passed a law authorizing towns and counties, the people assenting, to subscribe for stock in railroad corporations. A clause in the constitution declares that "the general assembly shall never authorize any county, town or township by vote of its citizens or otherwise to become a stockholder in any joint-stock company or corporation." It was held that this clause did not repeal the previous law.79

§ 291. An act to repeal a void act.- In State v. Field 80 the question arose whether an act to repeal a void act was itself valid. The act in question purported to repeal the void act and to substitute a valid act in its place. The act was sustained and the court says: "But it is said a void act is no law, and the power to repeal does not reach it. It is evident, however, that this argument ignores the fact that unconstitutional enactments are sometimes spread upon our statute books and are obeyed by the people and the officers of the law, and are usually clothed with the semblance at least of valid laws. They stand unchallenged sometimes for years, and then present the gravest questions for the

77 Chidsey v. Scranton, 70 Miss. 437; Van Hagan, Ex parte, 25 id. 449, 12 So. 545. 426; Elizabethtown, etc. R. R. Co. v. Elizabethtown, 12 Bush, 233; Coats v. Hill, 41 Ark. 149; Stephens v. Ballou, 27 Kan. 594.

78 Ex parte Osborne, 24 Ark. 479; Mach v. Johnson, 59 Ark. 333, 27 S. W. 231.

79 Cass v. Dillon, 2 Ohio St. 607; State ex rel. v. Dudley, 1 Ohio St.

80 119 Mo. 593, 24 S. W. 752.

determination of the courts. Now, when placed upon the statute books by the action of the legislature, why should not the same governmental agency remove them from the statutes and prevent them from becoming snares and pitfalls to the people of the state. Surely it needs no argument to demonstrate that the legislature has the power to see that nothing shall deface our statute books that is not a law. Certainly the legislature may purge the statute books of any matter not lawfully there. To deny it this power is to ascribe to it a most dishonoring impotence and a disregard of the analogies of the law."

82

§ 292. Construction of express repeals. The repealing clause of a statute is not effective until the act goes into effect and until then the old law remains in force.81 The express repeal of certain sections implies an intent not to repeal other sections. An act was revised and repealed except one section. This was held not to give any new force to that section, nor to make it a part of the new act. Where a territorial act was amended by congress "so as to read as follows," and as so amended was approved and confirmed, the territorial act was held to be repealed. A repeal of all former acts on pleading and practice was held not to repeal an act making the county from which a change of venue is taken liable for all expenses of the trial. A statute providing a remedy for an illegal tax was held not embraced in a general repeal of all laws relating to assessments in an act prescribing and regulating the method of assessing taxes.86 An act fixing the compensation of county commissioners at three dollars and fifty cents a day and repealing all local acts fixing a less per diem was held not to

81 State v. Kearney, 49 Neb. 325, 337, 68 N. W. 533, 70 N. W. 255.

82 Sales v. Barber Asphalt Pav. Co., 166 Mo. 671, 66 S. W. 979; Curtwright v. Crow, 44 Mo. App. 563; Crosby v. Patch, 18 Cal. 438; State v. Morrow, 26 Mo. 131. See Burnham v. Onderdonk, 41 N. Y. 425.

83 Matter of Lampson, 22 Misc. 198, 49 N. Y. S. 576.

84 Murphy v. Utter, 186 U. S. 95, 22 S. E. Rep. 776, 46 L. Ed. 1070. 85 State v. Moore, 121 Ind. 116, 22 N. E. 742.

86 Shear v. Commissioners of Columbia, 14 Fla. 146.

repeal a local act fixing a salary.87 An act relating to the selection of jurors in counties of 70,000 population or more repealed the existing law on the subject as to such counties, with a proviso that the former law should remain in force until such time as the county board complied with the act. Non-compliance having been shown in a given case the former law was held to be in force.88 An act of congress disapproved and annulled all acts of the territory of Utah "which establish, support, maintain, shield or countenance polygamy." This was held not to annul an act providing that illegitimate children and their mothers should inherit the same as legitimate children.89 The code of North Carolina provided that no act of a private or local nature should be construed to be repealed by any section of the code. It was held that no provision of a private charter would be repealed though it was of a public nature. Where an act states that it is to take the place of statutes which have failed in their object and there was only one section of the Revised Statutes which could have been intended, that section will be held to be repealed, though not necessarily inconsistent. An act of March 8, 1893, in regard to foreign corporations repealed chapter 24 of the laws of 1887 on the same subject. In the revised code passed February 19, 1895, chapter 24 was largely, though not identically, reenacted. On March 13, 1895, an act was passed providing that the act of March 8, 1893, should continue in full force. and effect. It was held that this did not give any force to the section in the latter act repealing chapter 24, so as to make it operate on the sections of the code adopted from said chapter. A general revenue law of Washington re

91

92

87 Commonwealth v. Lloyd, 2 Pa. Supr. Ct. 6; affirmed, 178 Pa. St. 308; Bucks County v. Gill, 5 Pa. Dist. Ct. 266.

88 Neal v. State, 32 Neb. 120, 49 N. W. 174.

89 Cope v. Cope, 137 U. S. 682, 11 S. E. Rep. 222, 34 L. Ed. 832.

90

90 State v. Womble, 112 N. C. 862, 17 S. E. 491, 19 L. R. A. 827.

91 Meriwether v. Love, 167 Mo. 514, 67 S. W. 250.

92 State v. Potwitt, 17 Mont. 41, 41 Pac. 1004.