It is sometimes laid down as a rule, that a statute cannot be repealed by the mere absence of all practice or proceedings under it, or as it is called non user. Est conveniens naturali equitati unumquodque dissolvi eo ligamine quo ligatum est. Nothing short of a statute can repeal a statute.* But we shall hereafter see that custom is of great force in the construction of

* Dwarris, vol. ii, p. 529; White v. Boot, 2 T. R. 274.

the enactment of a law almost in the same words, there being no conflict. Kesler v. Smith, 66 N. C. 154. See note to "Revision." But a repealing clause takes effect, although uno flatu the old statute is re-enacted verbatim. State v. King, 12 La. Ann. 593 (a criminal statute); but per contra see Fullerton v. Spring, 3 Wisc. 667 (a statute of limitations), and see Rich v. Coffin, 45 Me. 507.

Where a town was authorized to make a particular by-law, and afterwards the statute was repealed, but simultaneously re-enacted in a revision of the laws, it was held that the Legislature did not intend to repeal the by-law, but that it remained in force. Lisbon v. Clarke, 18 N. H. 234. In another case a repeal absolute in its terms was limited by construction, the court holding that the general purpose of the later statute was to give a new charter, and not to repeal provisions as to criminal courts. Smith v. People, 47 N. Y. 330.

The intent, however awkwardly expressed, governs. Thorpe v. Schooling, 7 Nev. 15. Inconsistency between two acts will not repeal the earlier one, if the intent not to do so is expressed in the later statute. People v. Kelly, 7 Robt. 592.

An amendment of a section so that it "shall hereafter read as follows," repeals such section State v. Andrews, 20 Tex. 230, at least as to all that does not appear in the section as amended. State v. Ingersoll, 17 Wisc. 631. A repeal of" section 46" in a certain act, is a repeal of such section as amended by subsequent statutes, although they are not referred to in the repealing act. Blake v. Brackett, 47 Me. 28; but it was held otherwise when the section had been amended by an addition, and was repealed without mention of the addition and was re-enacted in the same statute with a slight change, also without mentioning the addition; the court declared the intention to be that the addition should remain in force. Cramer v. State, 18 Wisc. 257.

A specific repeal of one section implies that the whole statute is not repealed. State v. Morrow, 26 Mo. 131; Crosby v. Patch, 18 Cal. 438. A general amendment of a charter was held not to repeal an act relating to the improvement of a particular street. King v. Brooklyn, 42 Barb. 627. The incorporation into the charter of a corporation of certain provisions of a general law imposing liabilities cannot be taken as a repeal of such general law quoad the corporation, or as an exemption from other liabilities imposed by such general law, the charter being expressly made subject to existing general laws. Pratt v. Atlantic, &c. R. R. 42 Me. 579. The giving authority in general terms to commissioners to lay out such streets as they deem necessary within the limits of a certain borough, will not authorize them to run a street through a graveyard, there being a general law forbidding the laying out of a street through any burial ground. Egypt Street, 2 Grant's Cas. (Penn.) 455. An act of Congress upon a subject within its jurisdiction, but upon which there has been State legislation, does not repeal the State statutes, but renders them inoperative. Sturgis v. Spofford, 45 N. Y. 446.

statutes; and on the same principle, it seems difficult to deny that long and uniform disuse might amount in some cases to a practical repeal. So, where there had been a constant practice not to file an affidavit under an old statute, the court held the act unnecessary.* The philosophical legislators who in framing the Code Napoleon, raised to their memories an imperishable monument, say, in their preliminary report, "It might be dangerous formally to authorize repeal by desuetude or non user. But it is impossible to overlook or underrate the influence and utility of that spontaneous concert of action, that invisible power, by which, without shock or commotion, a people does justice upon bad laws, protects society against hasty or inconsiderate legislation, and in fact guards the legislator against himself." In Scotland, indeed, it is said that a statute loses its force by desuetude, if it has not been put in force for sixty years. By others, this term has been extended to a century, and a distinction is made between statutes half obsolete and those in vividi observantia.

In the English houses of Parliament, a rule prevails that no bill can be introduced in repeal of or in opposition to any law passed at the same session. And in order to obviate this, it is there the practice to insert in every bill, a clause providing that the act may be amended or repealed at the same session. No general rule or practice of this kind prevails in this country. But the Constitution of the State of Texas contains this clause: "After a bill or resolution has been rejected by either branch of the Legislature, no bill or resolution containing the same substance, shall be passed into a law during the same session."T

In regard to the mode in which laws may be repealed by subsequent legislation, it is laid down as a rule, that a general statute without negative words, will not repeal the particular provisions of a former one, unless the two acts are irreconcila

Leigh v. Kent, 3 T. R. 362.

"Les lois conservent leur effet, tant qu'elles ne sont point abrogées par d'autres lois, ou qu'elles ne sont point tombées en desuetude. Si nous n'avons pas formellement autorisé le mode d'abrogation par la desuetude ou le non usage, c'est qu'il eut peut etre été dangereux de le faire. Mais peut on se dissimular l'influence et l'utilite de ce concert

déliberé, de cette puissance invisible, par laquelle sans secousse et sans commotion, les peuples se font justice des mauvaises lois, et qui semblent proteger la société contre les surprises faites au legislateur, et le legislateur contre lui meme!"-Discours Preliminaire. Dwarris, p. 529.

Dwarris, vol. i, p. 269.

Cons. of Texas, Art. iii, § 22.

*

bly inconsistent; as, for instance, the statute 5 Elizabeth, c. 4, that none shall use a trade without being apprentice, did not take away the previous statute 4 & 5 Philip and Mary, c. 5, declaring that no weaver shall use, &c. The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the orig. inal act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all. (a) So where an

* Dwarris on Statutes, 532; 6 Rep. 196; Brown v. County Com., 21 Penn. 37; Omit v. Commonwealth, 21 Penn. 426.

(a) Repeal by Implication. Such Repeal not Favored,-Ordinarily express language is used where a repeal is intended, and a repeal by implication is not favored. Casey v. Harned, 5 Clarke (Ia.), 1; St. Louis v. Ind. Ins. Co. 47 Mo. 146; Gillette v. Sharke, 7 Nev. 245; U. S. v. One Hundred Bbls. of Spirit, 2 Abb. U. S. R. 305 (revenue laws); and where the acts are upon different subjects, the rule as to implied repeal applies more forcibly. Rawson v. Rawson, 52 Ill. 63. When acts can be harmonized by a fair and liberal construction it must be done. Connor v. Southern Express Co. 37 Geo. 397; People v. Barr, 44 Ill. 198; and the same rule applies to sections of the same statute. Wilcox v. State, 3 Heisk. (Tenn.) 110. If possible to reconcile the acts, it will be done. McCool v. Smith, 1 Black, 459; Henderson's Tobacco, 11 Wall. 652; The Distilled Spirits, 11 Wall. 356. The implication of repeal must be a necessary one. Naylor v. Field, 5 Dutch. 287. If two statutes on the same subject can stand together without destroying the evident intent and meaning of the later one, there will be no repeal. Roberts v. Fahs, 36 Ill. 268; as where there was an appropriation of a fund to the redemption of certain bonds, and afterwards an appropriation out of the fund for a different purpose, it was held that the latter act referred only to the surplus. State v. Bishop, 41 Mo. 16.

Generalia Specialibus non derogant.-A general affirmative statute does not repeal a prior particular statute, or prior particular provisions of a statute, unless negative words are used, or unless there is such irreconcilable inconsistency as indicates an intent of the Legislature to repeal. Robbins v. State, 8 Ohio, N. S. 131 (an act punishing killing by administering poisonous drugs to procure abortion, not repealed by statute punishing killing while engaged in any unlawful act). McDonough County v. Campbell, 42 Ill. 490; Hume v. Gossett, 43 Ill. 297; Luke v. State, 5 Florida, 185. (act in relation to crimes of slaves not repealed by an act in relation to crimes generally). Cate v. State, 3 Sneed. (Tenn.) 120; Magruder v. State, 40 Ala. 347; State v. Alexander, 14 Rich. Law, 247; State v. McDonald, 38 Mo. 529; State v. Bishop, 41 Mo. 16; State v. Macon Co. Court, 41 Mo. 453; Ellis v. Batts, 26 Tex. 703; State v. Kitty, 12 La. Ann. 805; St. Martins v. New Orleans, 14 La. Ann. 113. See also, as illustrating the same rule that a mere general law does not repeal a special one, London, &c. R. R. v. Limehouse Board of Works, 3 Kay & J. 123; Thorpe v. Adams,

act of Parliament had authorized individuals to inclose and embank portions of the soil under the river Thames, and had

Law R. 6 C. P. 125; Queen v. Champneys, Пb. 384; and although there is a saving clause of special acts in other statutes in pari materia, and none in the statute in question, this absence of the saving clause does not indicate an intention that these prior special acts should be repealed. Fitzgerald v. Champneys, 2 Johns. & H. 31.

The following are some instances in which this doctrine has been invoked and applied, or in which it has been held not to apply. A special law giving remedies is not repealed by a general one, Pearce v. Bank of Alabama, 33 Ala. 693; nor particular statutes for the relief of individuals, without express words, Beridon v. Barbin, 13 La. Ann. 458; nor will a special exemption of particular property from municipal taxation be affected by a subsequent general statute giving cities power to tax "all property" within their limits, there being no express repeal, Blain v. Bailey, 25 Ind. 165; nor was a prior special statute, authorizing a certain town to subscribe in aid of a railroad, and to raise sufficient money by taxation to pay the interest on the bonds issued thereunder, repealed by a general law which limited municipal taxation to pay interest on a public debt to the annual rate of six mills on the dollar of assessed property. Fosdick v. Perrysburg, 14 Ohio, N. S. 472; and see Clark v. Davenport, 14 Iowa, 494. A special charter or statute prevails over the general law, Burke v. Jeffries, 20 Iowa, 145; Crane v. Reeder, 22 Mich. 322; and special provisions of a statute over the general ones, Felt v. Felt, 19 Wisc. 193; and where two statutes approved on the same day have repugnant provisions, those which are special must prevail over those which are general. Mead v. Bagnall, 15 Wisc, 156. The rule has been laid down in this form; the repeal of a special statute enacted for a special purpose must either be express, or the manifestation of the legislative intent to repeal must be so clear as to be equivalent to an express direction. Cole v. Supervisors, 11 Iowa, 552.

When, however, the inconsistency between a private and a general act is such as to show an intent to repeal the former, the private act must yield. Great Central, &c. Co. v. Clarke, 13 C. B. (N. S.) 838. It is said that general laws control local laws, even though the latter are subsequent, unless a special contrary intent is shown. Commonwealth v. Pointer, 5 Bush. (Ky.) 301. This decision must clearly be restricted to "local" laws, technically so called, as contradistinguished from mere special acts or special provisions in acts whose objects are general, and even with such limitation, it seems to be opposed to the ratio decidendi of the other cases cited. A general statute against lotteries is not repealed absolutely,—and it seems not quoad the special statute,—by an act granting the right to maintain a lottery to particular persons, the Constitution fordidding special legislation; if either statute is to give way, it must be the special one creating the exception, Ex parte Smith, 40 Cal. 419. A general statute will not be construed as adding other conditions to those already required by a special statute relating to the same subject matter, unless such intent appears clearly; in this case the intent was held to appear. Mobile, &c. R. R. v. State, 29 Ala. 573. In another case, where a municipal charter contained a proviso that the city credit should not be pledged for over $10,000 without a vote, etc., a subsequent act giving the city power to build a bridge and pledge its credit therefor, without specifying whether a vote should be had or not, was held to be subject to this proviso. Cumberland v. Magruder, 34 Md. 381. But in another case, the Legislature, having by prior statutes given to some towns authority to subscribe in aid of railroads, without power to sell the stock thus subscribed for, and to other

declared that such land should be "free from all taxes and assessments whatsoever." The land tax act, subsequently

towns a like authority with power to sell the stock under certain restrictions, and afterwards having passed a statute authorizing all towns that had subscribed in aid of any railroad to sell their stock, without prescribing any restrictions, it was held that this latter act repealed by implication the limited power of sale given to some towns, and substituted the full power. Comm'rs of Knox Co. v. McComb, 19 Ohio, N. S. 320, 341.

When the Last Statute or Section Prevails.-Between two inconsistent and irreconcilable acts or sections, the last in time or position prevails. Johnson v. Byrd, 1 Hemps. 434; Powers v. Barney, 5 Blatch. C. C. 202; Maddox v. Graham, 2 Metc. (Ky.) 56; Edgar v. Greer, 8 Clarke (Ia.) 394; although the former is a general law and the latter is a special charter. Tierney v. Dodge, 9 Minn. 166; and see Wood v. Wellington, 30 N. Y. 218. Even where the act last approved was passed first, and the act first approved was amendatory of the other, the one last approved was held to control; thus a code approved February 11th provided that it should go into effect June 1st, and an act in express terms amendatory of the code, providing that the latter should go into effect from and after the date of the passage of the amendatory act, was approved February 10th, it was held that the code still went into effect June 1st. Elliott v. Lochnane, 1 Kans. 126. If two grants of power by the Legislature are repugnant, the second must control. Korah v. Ottawa, 32 Ill. 121.

Cumulative Remedies.-An act which gives cumulative and not inconsistent remedies, and especially one which embraces cases not covered by the former legislation, does not repeal prior statutes upon the same subject-matter. Waldo v. Bell, 13 La. Ann. 329; Mitchell v. Duncan, 7 Flor. 13; Raudebaugh v. Shelley, 6 Ohio, N. S. 307; State v. Berry, 12 Iowa, 58; Wilson v. Shorrick, 21 Iowa, 332. Thus, a penalty given by a building act, was held to be such a cumulative remedy, and not to take away the common-law remedy. Williams v. Golding, Law R. 1 C. P. 69.

Instances in which there is an Implied Repeal.—Where the second act in pari materia embraces all the provisions of the first, and also new provisions, and imposes different penalties, it repeals the former by implication. United States v. Tynen, 11 Wall. 88. If an affirmative statute introduces a new rule, and is plainly intended as a substitute for a former statute, it repeals such former act by implication; but it seems that if instead of a change in a former statute, the question was of a change in the common law, negative words would be necessary, Johnston's Estate, 33 Penn. St. 511; that is, a repeal of a statutory rule or provision is more easily implied, than a repeal of a common-law rule. Where a statute revises a whole subject, and is inconsistent with the common law as to that subject, it repeals the common law quoad hoc by implication, but a statute prohibiting slaughter-houses in a city without license does not come within this rule, and does not repeal the common law as to nuisances resulting from such houses. State v. Wilson, 43 N. H. 415. If two statutes relate to the same subject-matter, though not in terms repugnant or inconsistent, if the latter one is plainly intended to prescribe the only rule that shall govern, it will repeal the earlier. Sacramento v. Bird, 15 Cal. 294; Swann v. Buck, 40 Miss. 268; Weeks v. Walcott, 15 Gray, 54; People v. Syttle, 1 Idaho T. 161. See note to Revision."

66

If statutes provide a different punishment for the same offence, the later will repeal the earlier. Gorman v. Hammond, 28 Geo. 85; Mullen v. People, 31 Ill. 444 ; State v. Horsey, 14 Ind. 185; State v. Pierce, Ib. 302; Mitchell v. Brown, 1 E. & E.