« 上一頁繼續 »
Commonwealth v. Cooley.(a) The statute then under consideration was one relating to the disinterring of dead bodies; and on an indictment it was contended, that the offence was not one at common law; but that if it was, the common law on that subject had been superseded by a statute of 1814, covering the entire ground. The court held, that although the offence was indictable by the common law, yet that the statute in question had superseded the common law, inasmuch as the whole subject had been revised by the legislature. A statute is impliedly repealed by a subsequent one, revising the whole subject-matter of the first; and that in the case of a statute revising the common law, the implication was at least equally strong. In this case it was doubted whether a repeal of a statute which superseded the common law would revive the then existing common law.(b) The same principle is applied in those cases where a statute covers the whole subject-matter of all English statutes adopted here.(c) § 788. As a general rule, a subsequent statute will control the provisions of a former statute which are repugnant to it according to its strict letter.(d) We have already seen that it makes no difference in the controlling operation of the latter statute, that it is general and the other special. But there are exceptions to the rule, depending on the construction of the last statute, which must be made agreeable to the intention of the legislature; and whenever it is satisfactorily discovered that the legislature did not intend that the subsequent act should repeal the former, it will not be held to operate as a repeal. An illustration of this exception will be found in several adjudicated cases.(a) In the former of the cases cited, one town had been set off from another, on condition that certain lands in the town from which it was set off should not be taxed in the latter; and the act of incorporation was made upon that condition. A subsequent general tax law, although in its general terms it included those lands, was held not to operate as a repeal of the former provision, as such was evidently not the intention of the legislature. In Winten v. Welsh (b) it was held, that where a statute gave an authority to erect a dam across a river, it would not per se operate as a repeal of a former statute providing for passage ways for fish through all dams. In answer to the position that the former act had been virtually repealed by the latter statute, which gave authority to stop the waters in the pond by means of dams across the river, the court held, that there was no express repeal, nor any strong implication of it, because the object of the two statutes were not necessarily inconsistent. The legislature, without doubt, meant to give the same right in the dams to be crected which the proprietors of other dams had—that is, to maintain them, subject only to the inconvenience of keeping open a passage for fish during a small portion of the year; and as this was the evident intention of the legislature, they could see no ground to suppose the authority contained in the latter statute operated as a repeal of the provisions of the sormer one relative to the passage of fish. § 789. The suspension of a statute for a limited time is not a repeal of it.(c) This rule was adopted and applied in the case cited, which was an action under a sta
(a) 10 Pick. R. 39.
(b) See 11 Ibid. 351.
(c) Mason v. Waite, 1 Pick. 452. (d) Pease v. Whiting, 5 Mass. 380.
(a) Capen v. Glover, 4 Mass. R. 305; Pease v. Whitney, 5 Mass. 380. (h) 9 Pick. 87. (c) Brown v. Barry, 3 Dallas, 365.
tute of 1748, relative to bills of exchange, on a bill drawn 11th February, 1793. It was insisted, that the act of the legislature of Virginia, on which the action was founded, was not in force when the bill was drawn, and it was made a question whether two subsequent acts passed—to wit, one in November, 1782, declaring the repeal of the act of 1748, and another of December, 1792, declaring a suspension of that repeal till October, 1793– did in fact repeal, and leave repealed the act of 1748. That it did so, it was contended that such must have been the effect, as ascertained and limited by two other statutes—one of 1787, declaring that a repeal of a repealing act should not revive the act first repealed, and another act of 1785, declaring that statutes should take effect from the day on which they in fact passed, unless another day was named. But it was held, that the act of 1748 remained in force. 1. Because the act suspending the repealing act of November, 1792, was not within the act of 1789, which declared that a repeal of a repealing act should not revive the act first repealed, and that for the reason that a suspension of a repealing act for a limited time, was not a repeal of such repealing act. 2. Because the repealing act and the act suspending it—acts of the same session—were, according to the British rule of construing statutes, parts of the same act, and had effect from the same day, that when taken together as parts of the same act, they amounted only to a provision that a repeal of the act of 1748, should take place at a day then future. The act of 1785, declaring the commencement of acts to be from the day on which they in fact passed, did not apply to this case, for the reason that it was provided in the act of 1789; that where a question should arise, whether a law passed during any session changes or repeals a former law during the same session, (which was the present case,) the same construction should be made as if the act of 1785 had never been
passed ; that is, both acts being of the same session, should have the same commencement—that is, according to the old English rule, on the first day of the session. 3. Because the manifest intent of the suspending act was, that the act repealed by the repealing act should continue in force till a day then future, the 1st October, 1793. It could have no other intent. The intention of the legislature, when discovered, must prevail, any rule of construction declared by previous acts to the contrary notwithstanding
$ 790. A statute cannot be repealed by non-user.(a) But though non-user can never repeal the words of an act when they are plain, yet a series of practice, without any exception, goes a great way to explain an act where there is any ambiguity. Thus where under a statute there had been a constant practice not to file an affidavit, the court thought such an act unnecessary.(b)
ecessary.(6) A great moral influence, non-user will always have. In Scotland the instances are frequent, where statutes have been deemed to have become obsolete by desuetude. This principle, however, has not been engrafted upon our system of laws. A statute may be repealed by the express words of a subsequent statute, and it has been said it may be by implication ; our courts, however, do not favor repeals by implication. In England, it is said, an act cannot be repealed in the same session in which it is passed, unless there be a clause inserted, expressly reserving the power to do so.(c) This rule we apprehend is not adopted in this country. If a subsequent statute contrary to a former act, have negative words, it will repeal the former statute. Every affirmative statute is
(a) While v. Boot, 2 T. R. 275.
a repeal, by implication, of a precedent affirmative statute, so far as it is contrary thereto; for “leges posteriores contrarias abrogant.”(a) § 791. The repeal may be absolute though the repealing act be only temporary in its substantial provisions.(b) If a statute have been repealed by three different statutes, and only two of the repealing statutes are repealed, the third continues in force and repeals the original statute.(c) If a statute be repealed, all acts done under it while in force are good, but if a statute be declared to be null, all acts done under it while it was in force are void.(d) If a statute which has been repealed be afterwards revived, the repealing statute becomes of no force.(e) By a repeal of a repealing statute, the original statute is revived.(f) A constructive revival of a statute cannot operate on any part of an act which has been expressly altered.(g) It has been said that the expiration of a repealing statute does not necessarily revive the original statute, unless it appears clearly that such was the intention of the legislature.(h) But the expiration of a repealing statute by its own limitations revives a statute which had been repealed and supplied by it.(i) § 792. We shall conclude this chapter by succinctly stating some of the rules which obtained under the
(a) Surties v. Ellison, 9 B. & C. 752; Maggs v. Hunt, 4 Bing. 212; Kay v. Goodwin, 6 Bing. 582.
(b) The King v. Rogers, 10 East, 569.
(c) The Bishop's case, 12 Rep. 7.
(d) Jenk. 233, pl. 6.
(e) 2 lnst. 686.
(f) The Bishop's case, 12 Rep. 7; 2 Inst. 686; Wheeler v. Roberts, 7 Cowen, 536.
(g) Chancellor's case, 1 Bland. 663; Wheeler v. Roberts, 7 Cowen, 536; Finch v. McDowell, 7 Cowen, 537.
(h) Bac. Abr. 225, tit. Statute, D.; Warren v. Windle, 3 East, 212.
(i) See Chancellor's case, 1 Bland. R. 664.