alty; it is therefore an act of clemency which violates no right, but grants a privilege to a convicted party."1

§ 144. It has been held that a subsequent act may provide an alternative punishment in mitigation of that previously prescribed without being ex post facto. A statute imposing for an offense the penalty of imprisonment in the house of correction in the county where the offense was committed was held not repealed by a subsequent statute providing that the court in its discretion may commit the person under sentence to the house of correction in any county in the state in the same manner as he might be to the county where the court is holden, and that all inconsistent statutes are repealed. The court said: "The change is not in the nature of the penalty or its degree, but only in the locality where it may be inflicted. The essential rights of a person convicted are not materially affected, nor is the punishment aggravated by an imprisonment in one county rather than another. There would be great force in the argument [that there is an implied repeal] if the new statute had authorized the imprisonment to be inflicted in a penal institution designed or appropriated for the punishment of offenses of a higher or more aggravated nature than those punishable in the house of correction, although the term of imprisonment had remained unchanged. But under the statutes of this commonwealth the several houses of correction in the different counties of the commonwealth are places designated and used for the punishment of offenses of the same grade and degree; they are all subject to the same rule of government; the persons committed to them are under substantially the same discipline, and are entitled to the same rights and privileges. In legal contemplation, a commitment to a house of correction in one county for a specific term cannot be regarded as a higher or lesser punishment than a commitment to a house of correction in another county for the same period of time. The essential elements of the penalty are

1 Dolan v. Thomas, 12 Allen, 421; Commonwealth v. Wyman, 12 Cush. 237; Commonwealth v. Gardner, 11 Gray, 445; Commonwealth v. McKenney, 14 id. 1; Calder v. Bull, 3

Dall. 386; Walker v. State, 7 Tex.
App. 245.

2 Turner v. State, 40 Ala. 21; Greer v. State, 22 Tex. 588. But see post, § 480.

3 Carter v. Burt, 12 Allen, 424.

the same in either case." A change of procedure sometimes has been emphasized as aiding the inference of repeal.' Where a statute prohibited an act under a penalty to be enforced by indictment, and a subsequent statute gave a qui tam action for such penalty, the latter was held merely cumulative, and did not repeal the remedy given by the former act.2

§ 145. Statutes granting larger or different power or right. A new statute which affirmatively grants a larger jurisdiction or power, or right, repeals any prior statute by which a power, jurisdiction or right less ample or absolute had been granted. If the exercise of a power granted by a legislative act may include going beyond limits fixed by a prior statute, such limitation is impliedly removed, at least so far as it conflicts with the doing of that which is subsequently authorized. Thus, a power given to a municipal corporation to create a debt and provide for its payment empowered it to provide for the payment by taxation according to the exigency of the contract, though taxation for that purpose would exceed a limitation in the general law in force as to the annual rate of taxation. An English statute authorized the removal of poor persons likely to become chargeable. The power was given to two justices, one to be of the quorum. A later statute recited that act and repealed the provision for removal on the probability of their becoming chargeable, and enacted that a removal might be made of such persons after they had become chargeable to the parish, by two justices of the peace, without mention of the quorum. It was held that the requirement that one of the justices be of the quorum, contained in the previous act, was repealed by implication. Where the later statute merely extends the power or right to new subjects, though without mentioning the limitations applicable to the subjects to which the early law referred, they may, by construction, be

Michell v. Brown, 1 E. & E. 267; Nusser v. Commonwealth, 25 Pa. St.

126.

2 Bush v. Republic, 1 Tex. 455.

3 Farley v. De Waters, 2 Daly, 192; Regina v. Harden, 2 Ellis & B 188; Schneider v. Staples, 66 Wis. 167; Board of Commissioners v. Potts, Sheriff, 10 Ind. 286; Mayor, etc. of

Jersey City v. Jersey City, etc. R. R. Co. 20 N. J. Eq. 360; Commissioners of Knox Co. v. McComb, 19 Ohio St. 320; McRoberts v. Washburne, 10 Minn. 23.

4 Commonwealth v. Commissioners of Allegheny Co. 40 Pa. St. 348.

Regina v. Llangian, 4 B. & S. 249.

held to attach to the new subjects, when found consonant to the manifest intention of the legislature, or when such construction accords with its uniform policy. By the Revised Statutes of New York, an incorporated academy could take and hold by gift, grant or devise real and personal property, the clear yearly income or revenue of which did not exceed the value of $4,000. By subsequent acts trusts were authorized to be created by grants, devises and bequests of property to any incorporated college or other literary incorporated institution for specific purposes of support of liberal education. By the terms of these acts no limit in amount or value of property which can thus be given in trust is prescribed. The court say: "But these statutes are in no sense repugnant to the general law of the state, limiting and restricting the amount and value of property which can be taken and held by literary and educational corporations, and the general laws are in harmony with the general policy of the state, which has been uniform and consistent so far as such policy is indicated by legislation in relation to gifts in mortmain and the power of corporations to take and hold property. Special trusts were authorized to be created by the acts of 1840 and 1841, in furtherance of the general objects of the institutions named; but such trusts can be created and full effect given to the acts within the limits imposed by the general laws upon the power of the corporations to acquire and hold property. The general laws of restraint and those particular acts permitting special trusts may stand together. . . There being no express repeal of the general provision of the law, or repudiation of the uniform policy of the state, the intent of the legislature to do either cannot be implied. Unlimited trusts of this character might become an unmitigated evil, and no contingent good could compensate for the actual evil attendant upon withdrawing property from general use and placing it in dead hands. Judges have given the widest possible scope to statutes in restraint of the disposal of property in mortmain, and have been astute in their arguments for the application of such statutes to cases as they arose. The courts ought not to

1 Chamberlain v. Chamberlain, 43 N. Y. 424.

21 R. S. 462, § 42.

3 Per Gibson, Ch. J. Hillyard v. Miller, 10 Pa. St. 326.

impute an intent to the legislature not clearly expressed, in direct hostility to the traditions and policy of the past. The institute can 'take and hold' property within the limits prescribed, but can neither take nor hold in excess of that limit; effect will not be given to a transgressive bequest in excess of the amount authorized."

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.1 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. 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. It will, however, be deemed cumulative if there are no negative words and no positive repugnance."

§ 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 bottomry loans by Englishmen to foreigners on foreign ships engaged in the

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

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

3 Gwinner v. Lehigh, etc. R. R. Co. 55 Pa. St. 126.

4 Steward v. Greaves, 10 M. & W. 711; O'Flaherty v. McDowell, 6 H. L. Cas. 142; Davison v. Farmer, 6 Ex. 242, 256; Chapman v. Milvain, 5 Ex. 61.

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

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. The common law and statutory estate by the curtesy is held abolished by the statutes which assure to married women the possession and control of their separate property with the rents, issues and profits, and confer power of disposition by deed or will. So those statutes giving married women capacity of suing and being sued without the husband being joined repeal by implication the statutes which suspend the statute of limitations for coverture as a disability.3

4

In Emerson v. Clayton the court say: "By this statute a married woman must, since its enactment, be considered a feme sole in regard to her estate of every sort owned by her before marriage, or which she may acquire during coverture, in good faith, from any person not her husband, by descent, devise or otherwise, together with the rents, issues, increase and profits thereof. They designed to make and did make a radical and thorough change in the condition of a feme covert. She is unmarried, so far as her property is concerned, and can deal with it as she pleases."

Though such acts do not purport to repeal the exemption of married women from the operation of limitation laws, they manifestly produce that result by a reasonable construction of the language used in connection with the scope, purpose and object of the statute."

$147. Inserting or not a clause for repeal of inconsistent legislation. Affirmative statutes which contain no reference

1 The India, Brown. & L. 221. 2 Tong v. Marvin, 15 Mich. 60; Billings v. Baker, 28 Barb. 343.

3 Hayward v. Gunn, 82 Ill. 385; Castner v. Walrod, 83 id. 171; Enos v. Buckley, 94 id. 458; Geisen v. Heiderich, 104 id. 537; Brown v. Cousens, 51 Me. 301; Cameron v. Smith, 50 Cal. 303; Ong v. Sumner, 1 Cincin. Sup. Ct. 424; Ball v. Bullard, 52 Barb. 141. The exemption of married women in New York from the opera

tion of the statute was re-enacted in

the code after the passage of the act enabling married women to sue. See Clark v. McCann, 18 Hun, 13; Dunham v. Sage, 52 N. Y. 229; Acker v. Acker, 81 N. Y. 143; Clarke v. Gibbons, 83 id. 107.

4 32 Ill. 493.

5 Castner v. Walrod, supra; Kibbe v. Ditto, 93 U. S. 674. See Hershy v. Latham, 42 Ark. 305; State v. Troutman, 72 N. C. 551; Briggs v. Smith, 83 id. 306.