passed, by general words embraced all the land in the king. dom; and the question came before the King's Bench, whether

267. The same is true where statutes fix a different salary for the same office, Pierpont v. Crouch, 10 Cal. 315; and also where the earlier statute gave a penalty to a common informer, and the later one gave a penalty of the same amount to the party injured, and indicated an intent to cover the whole subject. Parry v. Croydon, &c. Co. 11 C. B. (N. S.) 579. A statute fixing the punishment of fine, and a minimum term of imprisonment is not repealed by an act, which provides that where the accused shows it to be his offence, the court may in its discretion impose the fine without the imprisonment, or vice versa. Dolan v. Thomas, 12 Allen, 421. Where the punishment for larcenies of over $2,000 is changed, that only repeals pro tanto the existing law as to larceny. State v. Grady, 34 Conn. 118. The change of penalty consisting in making two degrees of murder, and in mitigating the punishment of the second degree, it was held there was no repeal. Commonwealth v. Gardner, 11 Gray, 438. A statute for punishing an offender in the house of correction, in the county where the offence is committed, is not repealed, it seems, by a statute authorizing his imprisonment in the discretion of the court in the house of correction in any county. Carter v. Burt, 12 Allen, 424. Where the penalty is increased, e. g., where it being imprisonment not exceeding one year, a new statute prescribes imprisonment not less than three months nor more than one year, there is a repeal of the former, Flaherty v. Thomas, 12 Allen, 428; but it is held in Alabama, that an increase of penalty works no repeal by implication, but leaves the old offences under the old punishment, Turner v. State, 40 Ala. 21; Miles v. State, 40 Ala. 39; and this construction plainly serves to prevent the new statute from being an ex post facto law as to crimes already committed.

If the old law is revised and re-enacted with slight variations, there is a repeal, e. g., where the old law required a dog license in the town of the owner's residence under a penalty, and the new law required a license in the town where the dog was kept, but prescribed no penalty. Commonwealth v. Kelliher, 12 Allen, 480. Statutes which grant a right upon different conditions from those prescribed in former statutes are inconsistent therewith, e. g., where a statute limited the right of appeal to thirty days from the confirmation of the report, and a later statute gave the appeal within thirty days from the filing of the report, there was a repeal. Gwinner v. Lehigh, &c. R. R. 55 Penn. St. 126. By a certain statute persons living within a mile of a toll-gate were to pay but half toll; a second statute provided that the first should not apply to persons engaged in transporting goods for others; a third statute, not mentioning the second, enacted that the first should read so that half toll only should be taken from persons living within one mile of the gate, "except persons residing in a city or incorporated village; " it was held that the second act remained in force, and that persons engaged in transporting goods for others remained liable for full toll, although not living in a city or incorporated village. Canastota, &c. Pl. R. Co. v. Parkhill, 50 Barb. 601. Where a statute gave a right of appeal generally, and a later one gave a right of appeal in cases involving more than $5, the former was held to be repealed. Curtis v. Gill, 34 Conn. 49. Quære, is there the "irreconcilable inconsistency" between these two statutes which the well settled rule requires? The case is a good illustration of the truth, that the uncertainties of judicial construction arise, not from any uncertainty about the rules which should be applied, but from the varying application of them made in a given case, or to given language in a statute.

the land mentioned in the former act had been legally taxed; and it was held that the tax was illegal. Lord Kenyon said,

When the same power is given by different statutes to different public bodies, and the power cannot consistently with the object of the legislation be exercised by both, the later statute will prevail. Daw v. Metropolitan Board, 12 C. B. (N. S.) 161. A grant of authority to county commissioners to create a debt, and to provide for the payment of the interest thereon, is an enlargement of a power given to lay taxes in order to meet such debt, and is an implied repeal of any prior conflicting statutory restrictions upon the taxing power; e. g., it authorizes an assessment of more than one per cent. on the valuation, where that per cent. had been fixed as the limit by previous legislation. Commonwealth v. Commissioners of Allegheny, 40 Penn. St. 348. A statute authorizing a suit in the name of the assignor by a purchaser of a title, where there was adverse possession, repeals a prohibition of the purchase and transfer of such titles, as it seems. Towle v. Smith, 2 Robt. 489. Where after the repeal of a statute creating the office of city marshal, a law was passed changing the number of jurors which the "marshal" was required to summon in certain cases, it was held that this reference to the office as still existing did not operate to continue it (but the marshal was in fact still in office, for the abolition of the office had not yet taken effect, so that the language of the last statute had something to act upon). People v. Mahaney, 13 Mich. 481.

The following are cases in which it was held there was no repeal by implication: McAfee v. Southern R. R. 36 Miss. 669; Casey v. Harned, 5 Clarke (Ia.) 1; Baker v. Milwaukee, 14 Iowa, 214; Mills v. State, 23 Tex. 295 (in which it was said the effect of a repeal would have been to defeat the settled policy of the State); State v. Crow, 20 Ark. 209; Muscogee R. R. v. Neal, 26 Geo. 120; Industrial School, &c. v. Whitehead, 2 Beasley, 290; Shinn v. Commonwealth, 3 Grant's Cas. 205; Richards v. Patterson, 30 Miss. 583; House v. State, 41 Miss. 737; Maple Lake v. Wright Co. 12 Minn. 403; People v. Gerke, 37 Cal. 228; People v. San Francisco R. R. 28 Cal 254; Citizens' Bank v. Wright, 6 Ohio, N. S. 318; Buckingham v. Steubenville, &c. R. R. 10 Ohio, N. S. 25; State v. Roosa, 11 Ohio, N. S. 16; Gallup v. Lorain Co. 20 Ohio, N. S. 324; State ex rel. Olds v. Franklin Co. 20 Ohio, N. S. 421; Atty. Gen. v. Brown, 1 Wisc. 513; Lewis v. Commonwealth, 3 Bush (Ky.) 539; Desban v. Pickett, 16 La. Ann. 350.

The following are cases in which it was held there was a repeal by implication : Peru &c. R. R. v. Bradshaw, 6 Ind. 146; Board of Comm'rs v. Potts, 10 Ind. 286; State v. Smith, 7 Clarke (Ia.) 244; Rochester v. Barnes, 26 Barb. 657; People v. New York, 32 Barb. 102; State v. Stoll, 2 Rich. N. S. 538; Weiss v. Mauch Chunk, &c. R. R. 58 Penn. St. 295; People v. Grippen, 20 Cal. 677: G. C. Gas Consumers' Co. v. Clarke, 11 C. B. (N. S.) 814 ("where there is an invincible contrariety or repugnancy ").

Extent of the Repeal.-The repeal extends only as far as the inconsistency extends Elrod v. Gilliland, 27 Geo. 467; and this is so, even though there is an express repeal of "all inconsistent" acts. People v. Durick, 20 Cal. 94. A statute changing the forms of procedure, and expressly repealing "all inconsistent laws" must be construed as leaving the old law in force, as to pending cases, unless its terms are clearly retrospective, Wochlan Township Road, 30 Penn. St. 156; Hickory Tree Road, 43 Penn. St. 139; and a change in the remedy will not repeal the jurisdiction. I bid.

Under a Constitution which forbids local legislation, where general laws can be

"It cannot be contended that a subsequent act of Parliament will not control the provisions of a prior statute, if it were intended to have that operation; but there are several cases in the books to show, that where the intention of the Legislature was apparent that the subsequent act should not have such an operation, then, even though the words of such statute, taken strictly and grammatically, would repeal the former act, the courts of law judging for the benefit of the subject, have held

made applicable, and which provides that laws not inconsistent with the Constitution shall remain in force until repealed, local laws will continue and be operative until general laws are enacted. State v. Barbee, 3 Ind. 258. But see on this subject, the note upon the constitutional provisions in question; while some courts have treated it as directory, others have regarded it as imperative. And see Allbye v. State, 10 Ohio, N. S. 588, and Cahoon v. Commonwealth, 20 Gratt. 733, for cases in which constitutional provisions were held not to operate as a repeal of inconsistent laws until legislation was had under them.

The revised ordinances of a town which in terms repeal all ordinances " repugnant to the provisions of the aforesaid ordinances," do not repeal an ordinance not included in the revision, but not repugnant thereto. State v. Pollard, 6 R. I. 290. A clause in a body of revised statutes, repealing all acts and parts of acts, the subjects of which are revised, etc., or which are repugnant, will be construed to refer to general acts, and not to municipal charters whose provisions may be inconsistent therewith, unless there is an intention manifested to make the general rules of the revision apply to such charters. Walworth Co. v. Whitewater, 17 Wisc. 193; Janesville v. Markoe, 18 Wisc. 350; Stonington, &c. Bank v. Davis, 1 McCarter (N. J.) 286. A proviso of a repealed act falls with the act itself. Church v. Stadler, 16 Ind. 463.

Whether a Legislature can prescribe a Mode of Repeal.-A general rule adopted by the Legislature prescribing the forms and modes of future legislation, is repealed pro tanto by an act not complying with such rule. Wall v. State, 23 Ind. 150; State v. Oskins, 28 Ind. 364; and see also, Brightman v. Kirner, 22 Wisc. 54. Where a general turnpike act exempted instruments of husbandry (which, by another statute, included threshing machines) from toll, and declared that its provisions should extend to every turnpike act thereafter to be passed, except as to such "provisions, matters and things as shall be expressly referred to, and varied, allowed or repealed," and a subsequent local turnpike act imposed a toll on wagons, and the interpretation clause thereof declared that wagons should include threshing machines, it was held that the provisions of the general act were repealed so far as the exemption of such machines on the new turnpike was concerned. Ablert v. Pritchard, 1 Harrison & Rutherford, 274.

One Legislature cannot bind another to any mode of repeal. Kellogg v. Oshkosh, 14 Wisc. 623; and where a charter enacted that none of its provisions should be considered as "repealed by any general law contravening them, unless such purpose should be expressly set forth in such law," an inconsistent act, without such express statement of the intent, was held a repeal by implication. Ibid.

that they ought not to receive such a construction." It has been said that, even if there be negative words in the latter statute, it shall not be considered as a repeal of the former, provided they can both reasonably stand together. So it was held that the statute 1 & 2 Philip and Mary, c. 10, declaring that all trials for treason should be according to the course of the common law, and not otherwise, did not work a repeal of the stat ute, 35 Henry VIII, c. 2, which authorized trial for treason beyond the sea. †

But, on the other hand, it is equally well settled that a subsequent statute, which is clearly repugnant to a prior one, necessarily repeals the former, although it do not do so in terms; and even if the subsequent statute be not repugnant, in all its provisions, to a prior one, yet if the later statute was clearly intended to prescribe the only rule that should govern in the case provided for, it repeals the original act. Leges posteriores, priores contrarias abrogant. "If two inconsistent acts be passed at different times, the last," said the Master of the Rolls, "is to be obeyed; and if obedience cannot be observed without derogating from the first, it is the first which must give way. Every act of Parliament must be considered with reference to the state of the law subsisting when it came into operation, and when it is to be applied; it cannot otherwise be rationally construed. Every act is made, either for the purpose of making a change in the law, or for the purpose of better declaring the law; and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment." |

It has been repeatedly declared that every statute is, by implication, a repeal of all prior statutes, so far as it is contrary and repugnant thereto, and that without any repealing clause; and on this principle, when an act prohibited an unlicensed person from selling rum under a penalty of twenty dollars for

* William v. Pritchard, 4 D. & E. 2; Dwarris, p. 514; Williams v. Williams, 4 Seld. 526; Lyn v. Wyn, Bridgman's Judgments, 122; Darcy's Case, Cro. Eliz. 512; Paget v. Foley, 2 Bing. N. C. 679; R. v. Pugh, 1 Dougl. 188. Forster's Case, 11 Rep. 63.

Davies v. Fairbairn, 3 How. U. S. R. 636; Dexter and Limerick Plank Road Co. v. Allen, 16 Barb. S. C. R. 15.

The Dean of Ely v. Bliss, 5 Beavan, 374; Reg. v. Inhabitants of St. Edmunds, Salisbury, 2 Q. B. 72; Brown v. M'Millan, 7 Mees. & Wels. 196; Crisp v. Bunbury, 8 Bing. 394; 11 Rep. 632; Rex v. Lumsdaine, 10 Ad. & Ellis, 160; Rex v. Tooley, 3 T. R. 69; Welsford v. Todd, 8 East, 580.

each offence, and a subsequent statute prohibited the same act on pain of forfeiting not more than twenty dollars nor less than ten dollars for each offence, the old statute being absolute and imperative, and the other allowing a latitude of discretion, it was declared that they were essentially and substantially inconsistent, and the former statute was held to be repealed.* So, in general, where a statute imposes a new penalty for an offence, it repeals, by implication, so much of a former statute as established a different penalty. So Lord Mansfield held, that the statute 5 George I, c. 27, inflicting a fine not exceeding £100 and three months' imprisonment, for seducing artificers, was repealed by a subsequent act, 23 George II, c. 13, inflicting a penalty of £500 and twelve months' imprisonment for the same offence. So, on the same principle, a statute is impliedly repealed by a subsequent one, revising the whole subject-matter of the first. And in the case of a statute revising the common law, the implication is equally strong. So where an act is an offence at common law, and the whole subject is revised by the Legislature, the common law is repealed. So in Pennsylvania, it has been said that when two statutes are so flatly repugnant that both cannot be executed, and we are obliged to choose between them, the later is always deemed a repeal of the earlier. This rule applies with equal force to a case of absolute and irreconcilable conflict between different sections or parts of the same statute. The last words stand, and others which cannot stand with them go to the ground.

But though it is thus clearly settled that statutes may be repealed by implication, and without any express words, still the leaning of the courts is against the doctrine, if it be possible to reconcile the two acts of Legislature together. "It must be known," says says Lord Coke, "that forasmuch as acts of Parliament

* Commonwealth v. Kimball, 21 Pick. 373; see Rex v. Cator, 4 Bur. 2026, where Lord Mansfield made a similar intimation.

Rex v. Cator, 4 Burr. 2026; Rex v. Davis, Leach's Cases, 271; Nichols v. Squire, 5 Pick. 168.

Bartlett v. King, 12 Mass. R. 537; Nichols v. Squire, 5 Pick. 168.

Commonwealth v. Cooley, 10 Pick. 37; Commonwealth v. Marshall, 11 Pick. 350.

¶ Brown v. County Com. 21 Penn. 37. But in this case it was also said, that whenever two acts can be made to stand together, it is the duty of the court to give them full effect. And so the act of 10th April, 1834, creating the county board of Philadelphia county, was held not to be repealed by the act of 15th April, 1834, relating to counties and townships.

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