amended to read as follows: Sec. 7. That where, upon a hearing in equity in a district court or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed, by an interlocutory order or decree, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction or appointing such receiver to the circuit court of appeals." This act, it will be observed, omits of the act of 1895 all that was not contained in the original section, and, besides adding the phrase "or by a judge thereof in vacation," gives a right of appeal from any order or decree appointing a receiver.

Two questions are presented: First, is the last act invalid because it purports to amend a section of the original act which had already been amended? and, second, if the last act be valid, did its enactment operate to repeal the act of 1895?

In some of the states, by reason of constitutional provisions prescribing how amendments should be enacted, and requiring that the subject of an act be stated in the title thereof, it has been held that an amendatory act, to be valid, must relate to an existing and valid statute, and not to one which has been repealed or declared unconstitutional. 23 Am. & Eng. Enc. Law, 276; Igoe v. State, 14 Ind. 239; Blakemore v. Dolan, 50 Ind. 194; Hall v. Craig, 125 Ind. 529, 25 N. E. 538; State v. Benton, 33 Neb. 823, 833, 51 N. W. 140, 144; Wall v. Garrison, 11 Colo. 515, 19 Pac. 469. In the absence of constitutional restriction, the reasonable rule would seem to be, as it has been several times declared, that an amendatory statute will be upheld though it purport to amend a statute which had already been amended, or which was for any reason invalid. Com. v. Kenneson, 143 Mass. 418, 9 N. E. 761; Jones v. Commissioner, 21 Mich. 236; State v. Brewster, 39 Ohio St. 653; Basnett v. City of Jacksonville, 19 Fla. 664; Greer v. State, 22 Tex. 588; State v. Warford, 84 Ala. 15, 3 South. 911; Blake v. Brackett, 47 Me. 28.

In the Massachusetts case referred to, as here, the original statute had been twice amended, "so as to read as follows," and, giving effect to the evident intention of the legislature, the court held that the second amendatory act, though it purported to amend the original statute and contained no express reference to the first amendment, was valid, and that the second act, or first amendment, had been repealed by implication. In the Maine case it was held that the repeal of a section of the Revised Statutes repealed the section as it had been amended. The ruling in Alabama was that a statute, amending a statute which had previously been amended, was constitutional, although the former amendment had been enacted under a constitutional provision that any section of a statute which is amended is thereby repealed. The syllabus of the Ohio case is this:

"Where a section of the Revised Statutes is repealed, and re-enacted in a changed form, a subsequent statute, which, in terms, again repeals and reenacts the original section in still another form, is, as a general rule, to be regarded as a repeal of the section in its amended form, and the section in its last form will take its place in the revision as part of the Revised Statutes." In Jones v. Commissioner, Judge Cooley, writing the opinion, in response to the argument that an amendatory act which refers to a re pealed or nonexisting act must be invalid, said:

"This reasoning seems to us too refined for practical value. Under our constitution, the mode of amending a section of a statute is by enacting that the section in question 'shall read as follows.' The position of the section in the original statute is not changed, and there is no reason why subsequent amendments of the same section should not be made by reference to its number in the original statutes."

The other cases cited are equally in point.

It is clear that the act of 1900 repealed that of 1895, and contains all the law on the subject. No other conclusion would accord with the settled principles of statutory construction, or could be reconciled with the decisions of the supreme court of the United States. U. S. v. Tynen, 11 Wall. 88, 95, 20 L. Ed. 153; Murdock v. City of Memphis, 20 Wall. 617, 22 L. Ed. 429; Railroad Co. v. Grant, 98 U. S. 398, 25 L. Ed. 231; Tracy v. Tuffly, 134 U. S. 206, 223, 10 Sup. Ct. 527, 33 L. Ed. 879; Fisk v. Henarie, 142 U. S. 459, 467, 12 Sup. Ct. 207, 35 L. Ed. 1080; Hanrick v. Hanrick, 153 U. S. 192, 197, 14 Sup. Ct. 835, 38 L. Ed. 685; Railroad Co. v. Davidson, 157 U. S. 201, 208, 15 Sup. Ct. 563, 39 L. Ed. 672; Suth. St. Const. pars. 133, 154, et passim. Like any other legislative body, congress must be presumed by the courts to be acquainted with the existing law in respect to subjects upon which it legislates (Suth. St. Const. pars. 226, 287, 333); and there can, therefore, be no argument founded upon the supposition advanced that the act of 1900 was framed in ignorance of the earlier act. The appeal is dismissed.

NOTE.

Amendment of Amended, Repealed, or Invalid Statutes.

1. Amended Statutes.

[a] (Ala. Sup. 1887) A statute amending an act which had previously been amended is constitutional, although the former amendment was passed under Const. Ala. 1868, art. 4, § 2, which provided that any section of a statute which is amended shall be thereby repealed.-State v. Warford, 3 South. 911, 84 Ala. 15.

[b] (Cal. Sup. 1869) By Act May 3, 1861 (St. 1861, p. 287), the salary of the county treasurer of Butte county is fixed at $3,000 per annum. By Act April 4, 1864 (St. 1863-64, p. 328), his salary is fixed at $2,400 per annum. By Act March 10, 1866 (St. 1865-66, p. 207), his salary is fixed at $1,200 per annum, "from and after the expiration of the term of the present officers." By Act March 31, 1866 (St. 1865-66, p. 603), enacted to amend Act May 3, 1861, the legislature copied section 5 of the amended act with slight variations as to the duties of the treasurer, and reducing his bond, but retained that portion of the section which fixed the salary at $3,000, and then added the proviso: "And provided, further, that this act shall not be construed to fix or change the salary of any officer in said county in any manner whatsoever." Held, that the provision as to salary was left in the amended act through inadvertence, and that the salary of the treasurer was $2,400.-Pond v. Maddox, 38 Cal. 572.

[c] (Cal. Sup. 1894) Const. art. 4, § 24, provides that laws can only be amended by re-enactment at length. Pol. Code, § 325, provides that a statute amended in part is not repealed, but the unchanged portions are considered as having been the law from the date of enactment, and the amended portion as dating from the amendment. Held, that the amendment of a statute does not have the effect of repealing it, so that a subsequent amendment of the original statute, without referring to the first amendment, is inoperative. Fletcher v. Prather, 36 Pac. 658, 102 Cal. 413.

[d] (Fla. Sup. 1883) Where a section of a law is amended, so that it "shall read as follows," the substituted section becomes the named section of the

591

original act, and a subsequent amendment of the same section of the original act, so that it "shall read as follows," operates to repeal all of the first amendment not contained in the later amendment.-Basnett v. City of Jacksonville, 19 Fla. 664.

[e] (Mich. Sup. 1870) Where a section of a statute has been amended, a subsequent amendment is not invalid because it was made by reference to the number of the section as it stood in the published laws, where the amending act enacts that "it shall read as follows," and the section as amended is set forth at length.-People v. Pritchard, 21 Mich. 236.

[f] (Neb. Sup.) An act to amend Comp. St. Neb. 1881, c. 18, § 25, was passed and approved March 30, 1887, to take effect from date, and on the succeeding day an act was passed to amend Comp. St. Neb. 1881, c. 18, § 25, div. 2. Held, that the latter amendment related to section 25 as amended on March 30, 1887.-(1888) State v. Babcock, 36 N. W. 348, 23 Neb. 128; (1890) State v. Partridge, 45 N. W. 290, 29 Neb. 158.

[g] (N. Y. App. 1894) Laws 1872, c. 687, directed certain payments for the support of the Inebriates' Home out of excise money of Kings county. Laws 1875, c. 627, § 3, amended section 1 of the act of 1872 by reference and re-enactment. Held, that section 1 did not become so merged and lost by its amendment in 1875 as to render void its amendment by Laws 1877, c. 169, 4, which was also made by reference and re-enactment.-White v. Inebriates' Home for Kings Co., 35 N. E. 1092, 141 N. Y. 123, affirming (1893) Same v. Boody, 26 N. Y. Supp. 294, 74 Hun, 39.

[h] (N. Y. Sup. 1894) A statute amending a statute which had already been superseded by an amendatory statute is valid, where it was the intention of the legislature to amend the amendatory statute, and not the amended statute.-People v. Upson, 29 N. Y. Supp. 615, 79 Hun, 87.

[i] (Ohio Sup. 1884) Where a section of a statute is repealed and re-enacted in a changed form, a subsequent statute which in terms again repeals and re-enacts the original section in still another form is, as a general rule, to be regarded as a repeal of the section in its amended form.-State v. Brewster, 39 Ohio St. 653.

2. Repealed Statutes.

[a] (Ala. Sup. 1895) The legislature may amend an original act which has been amended and repealed, disregarding the amendatory and repealing act. -Harper v. State, 19 South. 857, 109 Ala. 28.

[b] (Colo. Sup. 1888) Act Colo. Feb. 18, 1881, on the subject of liens, entitled "An act to amend chapter 59 of the General Laws and to repeal all laws inconsistent therewith," being obnoxious to the constitutional requirement that the subject of an act shall be stated in the title, cannot be sustained as an independent act, and, the act which it purports to amend having been repealed, it is void.-Wall v. Garrison, 19 Pac. 469, 11 Colo. 515.

[c] (Ill. Sup. 1890) The amendment to Act Ill. 1872. c. 24, art. 9, § 19, relating to cities, villages, and towns, passed June 1, 1889 (Sess. Laws Ill. 1889, p. 87), is invalid, since, said section 19 having been amended in 1887 (Sess. Laws Ill. 1887, p. 107) by the enactment of a distinct and complete section in its place, it was not in existence when the amendatory act of 1889 was passed.-Louisville & N. R. Co. v. City of East St. Louis, 25 N. E. 962, 134 Ill. 656.

[d] (Ind. Sup.) Where a statute is amended, the amendment supersedes the original statute; and hence an amendment of the original statute is void. -(1844) Feibleman v. State, 98 Ind. 516; (1870) Draper v. Falley, 33 Ind. 465; (1875) Blakemore v. Dolan, 50 Ind. 194; (1876) Ford v. Booker, 53 Ind. 395; (1878) Cowley v. Town of Rushville, 60 Ind. 327; (1879) Niblack v. Goodman, 67 Ind. 174; (1879) Clare v. State, 68 Ind. 17; (1881) Brocaw v. Commissioners, 73 Ind. 543; (1881) Lawson v. De Bolt, 78 Ind. 563; (1883) McIntyre v. Marine, 93 Ind. 193.

[e] (Ind. Sup. 1886) Rev. St. 1894, §§ 6564, 6565 (Acts 1891, p. 398), relating to partition fences, are unconstitutional and void, having been enacted as amendments of sections 15 and 16 of the act of June 4, 1852, and said section 15, on which the provisions of both amendments depend, having been previously amended by Acts 1865, p. 182, and thereby repealed.—Stony Creek Tp. v. Kabel, 43 N. E. 559, 104 Ind. 501.

[f] (Mass. Sup. 1887) Though St. 1885, c. 352, § 6, amending Pub. St. c. 57, § 9, "so as to read as follows," etc., since the amendment covers the whole subject, impliedly repeals the former statute, St. 1886, c. 318, § 2, purporting to amend Pub. St. c. 57, § 9, is not a nullity as an amendment of a repealed statute, but stands as an independent enactment.-Com. v. Kenneson, 9 N. E. 761, 143 Mass. 418.

[g] (Neb. Sup. 1892) Since Act Feb. 28, 1883, for the issuing of refunding bonds by a county, repealed by implication Act Feb. 19, 1877 (carried into the Compiled Statutes of 1881 as chapter 45, §§ 11-13), the act of 1885, amending Comp. St. 1881, c. 45, §§ 11-13, is void.-State v. Benton, 51 N. W. 140, 33 Neb. 823; 51 N. W. 144, 33 Neb. 834.

[h] A statute purporting to amend a repealed statute "so as to read as follows" is operative, without regard to the former statute.-(N. Y. App. 1894) People v. Board County Canvassers Jefferson Co., 28 N. Y. Supp. 871, 77 Hun, 372, affirmed (1894) 37 N. E. 649, 143 N. Y. 84; (Sup. 1890) Van Clief v. Van Vechten, 8 N. Y. Supp. 760, 55 Hun, 467.

[i] (Or. Sup. 1880) Where a subdivision of a section of a statute has been repealed by implication, a subsequent amendment, in which the repealed section is published, does not operate as a re-enactment.-Stingle v. Nevel, 9 Or. 62.

3. Invalid Statutes.

[a] (Ark. Sup. 1895) Where the title of an act states that it is to prevent a certain kind of act, and the first section declares the act an offense, and a second prescribes the degree and punishment, the fact that the latter section is invalid will not render an act amendatory thereto invalid, though the title of such amendatory act states that it is to amend that specific section, instead of to amend the whole act.-State v. Corbett, 32 S. W. 686, 61 Ark. 226.

[b] (Ind. Sup. 1895) Though Act 1891, p. 424, in so far as it provides for the salaries of the county treasurers of all counties in the state except Shelby county, is in conflict with Const. art. 4, § 22, prohibiting local acts in relation to salaries except so as to grade the compensation of officers in proportion to the population, and article 4, § 23, providing that in all cases where a general law can be made applicable all laws shall be general and of uniform operation, the objections to the act were cured by Act 1893, p. 142, amending the same by providing a salary for the treasurer of Shelby county.-Walsh v. State, 41 N. E. 65, 142 Ind. 357, overruling (1894) State v. Boice, 39 N. E. 64, 140 Ind. 506.

[c] (Ind. Sup. 1898) Act April 10, 1885 (Acts 1885, p. 171), authorizing the trustees of towns to license the sale of intoxicating liquors, is void, since it is an amendment to the act of March 1, 1877, held invalid by the supreme court. -Copeland v. Town of Sheridan, 51 N. E. 474, 152 Ind. 107.

[d] (Iowa Sup. 1900) Where a statute providing for inheritance taxation was unconstitutional for failure to provide for notice or hearing of the appraisement of the property to be taxed, it was not necessary that the entire statute be re-enacted on passage of an amendment curing such defect.—Ferry v. Campbell, 81 N. W. 604.

[e] (Iowa Sup. 1900) Where a statute providing for inheritance taxation was unconstitutional for failure to provide for notice or hearing of the appraisement of the property to be taxed, it was not necessary that the entire statute be re-enacted on passage of an amendment curing such defect.-Ferry v. Campbell, 81 N. W. 604.

[f] (Kan. Sup. 1895) Though Gen. St. 1889, par. 6383, was void in so far as it attempted to provide for raising a fund for the support of the state university after the expiration of the two succeeding fiscal years, it had a continuing force for various purposes, and hence Laws 1895, c. 226, § 2, raising the amount of that fund for the years ending June 30, 1896, and June 30, 1897, was a valid amendment.-State v. Bailey, 42 Pac. 373, 56 Kan. 81.

[g] (Mo. Sup. 1893) Where only one section of an act, or a part of a section, is void, such section may be amended in part, or by the substitution of a new section, provided the act, as amended, does not embrace a purpose outside of its title, and inconsistent with the provisions remaining unrepealed.— Lynch v. Murphy, 24 S. W. 774, 119 Mo. 163.

[h] (Ohio Sup. 1895) An unconstitutional statute may be amended into a

constitutional one, so far as its future operation is concerned, by removing its objectionable provisions, or supplying others, to conform it to the requirements of the constitution.-State v. City of Cincinnati, 40 N. E. 508, 52 Ohio St. 419.

[i] (Ohio C. C. 1895) Where by amendment there is substituted for an unconstitutional section of an act a constitutional section, the whole act as amended is valid, as though originally passed in that shape.-State v. City of Cincinnati, 8 Ohio Cir. Ct. R. 523.

[j] (Pa. Com. Pl. 1900) An act which is unconstitutional on account of a defect in the title cannot be rendered constitutional by a subsequent act amending the title.-Teeple v. Commissioners, 6 Lack. Leg. N. 56, 23 Pa. Co. Ct. R. 361.

[k] (Wash. Sup. 1898) Although Act March 19, 1890, under which a drainage ditch was constructed, was unconstitutional, Act March 19, 1895, providing for the payment of expenses incurred in constructing ditches under the former act, is not invalid as endeavoring to give validity to an unconstitutional act.-Skagit Co. v. McLean, 54 Pac. 781, 20 Wash. 92.

(105 Fed. 821.)

KIDDER et al. v. FIDELITY INS., TRUST & SAFE-DEPOSIT CO. et al. (Circuit Court of Appeals, Seventh Circuit. January 2, 1901.)

1. APPEAL-NECESSARY PARTIES.

No. 589.

Where one of several interveners appeals from a decree in equity after the term in which the decree was rendered, and cites only the complainant and the receiver of one of several defendants, the appeal will be dismissed, as it was necessary to include in the appeal and serve with notice all parties of record whose interests are directly involved in the appeal. 2. SAME-INCONVENIENCE OF NOTICE.

That it would be an intolerable burden in some instances to give no tice of appeal to all parties of record interested does not affect the rule, since the burden may be avoided by an appeal taken in open court at the term when the decree was rendered, which is effective without such notice.

3. SAME.

Where an appeal from a decree in equity fails for lack of notice to all parties interested, no notice which the court might order after the time for appeal had gone by could be effective to bring the absent parties within its jurisdiction.

Appeal from the Circuit Court of the United States for the Southern District of Illinois.

The motion to dismiss this appeal for the lack of necessary parties was argued at the May session of the court in 1899, and since that time has been under advisement. The material facts are these: On August 19, 1898, a decree of foreclosure and sale was entered in the case of the Fidelity Insurance, Trust & Safe-Deposit Company against the Litchfield, Carrollton & Western Railroad Company, the Litchfield, Carrollton & Western Railway Company, and the Mercantile Trust Company of New York, wherein it was ordered that the proceeds of the sale be applied first to the payment of the costs of the cause, including allowances to be made by the court to the parties and their solicitors and counsel and to the receiver, his solicitor and counsel, and the balance first to the payment of all indebtedness of the receiver, including receiver's certificates and all claims allowed priority to the mortgages, and the remainder, if any, to the discharge of the mortgage indebtedness. On November 8th ensuing an order was entered making specific allowances to the 44 C.C.A.-38