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CHAPTER XIX.

OF THE REPEAL OF STATUTES.

§ 757. IF laws and statutes seem contrary to one another, it is by some supposed that the latter one will abrogate or repeal the former. This rule, however, has its qualifications. In such cases, if by interpretation they may stand together, they shall so stand; and if two laws only so far disagree or differ as that they may, by any other construction, both stand, they will both be upheld; for whenever this can be done, the rule that subsequent laws abrogate prior ones does not apply, and the last law will not operate as a repcal of the former. (a) When it is not manifestly the intention of the legislature that a subsequent act shall control the provision of a former act, the subsequent shall not be construed as having such an operation, even though the words, taken strictly and grammatically, would repeal the former act.(b)

§ 758. It may be laid down as a general rule, that it is deemed against the policy of the law to favor repeals by implication; and positive enactments are not to be construed as interfering with pre-existing contracts, rights of action, or suits of a civil nature not penal in their consequences, unless the intent thus to interfere has been expressed in the enactment. It is upon this principle that our courts have held, that the only effect the revision of

(a) Canal Co. v. Railroad Co. 4 Gill & John. 6. (b) Ibid. 6.

our statutes had upon offences previously committed was, that the proceedings in the subsequent prosecution of such offences must be conducted according to the provisions contained in the Revised Statutes. (a) Where those statutes instituted one action for another—such, for instance, as ejectment for the writ of dower-the revision only affects the form and mode of proceeding in such suits; and even in this respect the latter does not affect the mode of conducting suits which were commenced previous to the time they went into operation; and we have seen, in a previous chapter, that whenever a person has a right to sue at common law, and a remedy is likewise given by an affirmative act, without a negative expressed or implied of the action at common law, it does not take away the common law remedy, and the party may, at his election, avail himself of either.(b)

It

§ 759. We have seen, that where a right is granted by a statute, and a subsequent statute gives a forfeiture or penalty for the violation of that right, such forfeiture or penalty is cumulative to the remedy provided at common law, in cases of the violation of the statute right, when the statute itself is silent.(c) But inchoate rights generally derived under a statute, are lost by its repeal, unless saved by express words in the repealing statute. is otherwise, however, in regard to such civil rights as have become perfected far enough to stand independent of the statute; or, in other words, such as have ceased to be executory, and have become executed.(d) As a general rule, it is undoubtedly true, an act of the legislature annulling contracts, or creating new exceptions and defences, should be so construed as not to affect con

(a) The People v. Phelps, 5 Wend. R. 10. (b) 10 John. R.; see also 5 John. R. 175. (c) 9 Ibid. 507.

(d) Butler v. Palmer, 1 Hill R. 324.

tracts or rights of action vested and existing at the time of its enactment. (a) Statutes modifying a remedy of a party should be so construed as not to affect actions commenced before such acts were passed. But the two last rules obtain only in cases of positive enactments, and they will be found not to arise under repealing clauses, and are founded upon the well settled rule that statutes are not to have a retrospective operation, or ex post facto effect, unless declared to be so by express words or positive enactments, and even then subject to the qualification stated by us in sec. 533.

§ 760. The rule that vested civil rights, acquired under a law, are not affected by a repeal, is founded in good sense and reason, is consonant to the fundamental principles of natural justice, and has been derived from the civil law. We have stated in sec. 161 the clear and succinct view of this subject laid down in Taylor's Civil Law, to which our readers will do well to refer to in this connection.

§ 761. Puffendorf says the law itself may be disannulled by the author, but the rights acquired by virtue of that law while in force must still remain. He however adds:" Suppose it were a law, that as a man disposed of his possessions by will, so the right to them should stand; yet it would be unreasonable to take away from one person what fell to him by will while the former law was in use and vigor." Mr. Justice Cowen, in speaking of the effect of a repeal upon inchoate rights, says, I understand the rule of the writers on the civil law perfectly to agree with that acted on by our own courts in all their decisions ancient and modern. Those writers

(a) See Gilmore v. Shooler, 2 Mod. 310; Dash v. Van Kleek, 7 John. R. 477; Couch v. Jeffries, 4 Burrow, 2460-2; Churchill v. Crease, 2 M. & P. 415; S. C. 5 Bing. 177; Tenington v. Hargreave, 3 M. & P. 137, 143; S. C. 5 Bing. 489.

speak of rights which have arisen under the statute not being affected by the repeal, but the context shows at once what kind of rights they mean. The amount of the whole comes to this, that a repealing clause is such an express enactment as necessarily divests all inchoate rights, which had arisen under the statute which it destroys. These rights are but incidents to the statute, and fall with it, unless saved by the express words in the repealing clause;" after citing from Bracton and the Institutes the maxim, " Nova constitutio futuris formam imponere debet non præteritis," and in reference to the quotation from Puffendorf, he adds:-" Here the right had so passed as to be not only vested, but to stand entirely independent of the statute."

§ 762. In Fletcher v. Peck,(a) the rule is recognized, that where a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights, and that a party to a contract, although it might be a sovereign state, could not pronounce its own deed invalid. In another case,(b) the same principle was recognized, and it was held, that where an act of the legislature had declared that certain lands which should be purchased for the Indians, should not thereafter be subject to any tax, it constituted a contract which could not be rescinded by a subsequent law. Indeed rights thus vested under laws amounting to a contract are, under our government, rendered sacred and inviolate under the federal constitution.

§ 763. Where a right of property or the nature of its enjoyment, has become vested under a contract between parties, as a joint tenancy created by contract, an act abolishing such estates prospectively does not operate to change the nature of the estate existing at the time, and

(a) 6 Cranch, 88.

(b) The State of New Jersey v. Wilson, 7 Cranch, 164.

created and vested under that contract. It has been held, (a) that an estate of freehold in joint tenancy, created before the date of an act respecting joint tenants and tenants in common, which declared: "No estate, after the passing of this act, shall in this state be considered and adjudged to be an estate in joint tenancy, except it expressly set forth in the grant or devise creating such estate, that it is the intention of the parties to create an estate of joint tenancy, and not an estate or tenancy in common, any law, usages, or decision heretofore made to the contrary notwithstanding," was not affected by that act. The decision of this case was put upon the ground, that if the act destroyed the nature of the estate it was one impairing the obligation of a contract, and therefore void and inoperative under the federal constitution; and also upon the ground of the rule, that whenever a statute is susceptible, without doing violence to its terms, or subverting some established rule of construction, of being understood either as exclusively prospective, or as both prospective and retrospective in its enactment, courts of justice would always adopt the former construction, especially if a retrospective operation would work injustice to any one; and the statute ought not to have a retrospective operation unless its words were so clear, strong, and imperative, that no other meaning could be annexed to them, or unless the intention of the legislature could not be otherwise satisfied; and that this rule ought especially to be adhered to, when such a construction would alter the pre-existing situation of parties, or would affect or interfere with their antecedent rights. These considerations led irresistibly to the conclusion, that the act in question was entirely prospective, and that the court would not impute to the

(a) Den ex dem. Berdan v. Van Riper, 1 Harrison, 7.

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