Page images

Provisions which could not be reconciled. Accordingly, the general rule is, that an amendment does not repeal the portion of the amended statute which it supplies, but simply takes its place, and becomes a portion of the original act, with the same effect, as to matters subsequent to its date, as if it had formed a part of the original act at the time of its adoption: Dillon t'. Saloude, 68 Cal. 270; S. C., 9 Pac. Rep. 162; Basnett v. Jacksonville, 19 Fla. 664; Blake r'. Brackett, 47 Me. 28 ; Job 2'. Harlan, 13 Ohio St. 485; Oshe v. State, 37 Ohio St. 494. It is consequently to be read in conncction with the other

portions of the original açt, and its construction is to be governed by their provisions ; and vice versa, they arc thenceforth to be interpreted with reference to it: Taylor v. Thorn, 29 Ohio Si. 569. Thus, in Holbrook v. Nichols, 36 III. 161, the ninth sec-. tion of the original act provided that deeds were to be acknowle. edged before certain specified officers (among whom notaries: were not included), and the sixteenth section enacted that powers of attorney to sell real estate should be acknowledged in the same manner as deeds. The amending act declared that. deeds might thenceforth be acknowledged and proved before a. notary public; and it was held that this extended to the sixteenth section of the original act, and that powers of attorney to sell real estate might be acknowledged before a notary. So, in McKibben v. Lester, 9 Ohio St. 627, where the amending statute provided that “ under the restrictions and limitations herein p-rovided, justices of the peace shall have ... concurs rent jurisdiction with the Court of Common Plcas in any sum. over one hundred dollars and not exceeding three hundred dollars," it was ruled that the words, “ under the restrictions. and limitations hercin provided," must be taken to refer to the. restrictions and limitations contained in the original act, as it. stood after all amendments had been inserted in their proper places; and this construction was approved and adopted in a. subsequent

case arising under the same acts : Job v. Harlan, 13 Ohio St. 485. Similarly, in Brigel v. Starbuck, 37 Ohio St. 280, a statute passed in 1871, relating to appeals from the: probate cout, authorized the taking of an appeal " from any. order, decision, or decree made under .An Act regulating the.

mode of administering assignments in trust for the benefit of creditors' ... by any person against whom such order, decision, or decree shall be made, or who may be affected thereby." The laws in reference to assignments for the benefit of creditors in force in 1871, did not authorize the creditors to select the assignee ; but in 1874 an amendment to these laws was passed, giving them the right to select one, subject to the approval of the court, and it was held that the provisions of the Appeal Act of 1871 were applicable to this act, and that an appeal would lie under it, from an order of the court approving the choice of an assignee by the creditors.

An amendment, therefore, is so far a part of the original act, that the title of the original act covers it, and its own title need not be looked to in order to determine its constitutionality. If the original act is constitutional, as regards the title, so is the amendment, without regard to its title: Brandon v. Statc, 16 Ind. 197; City of St. Louis v. Ticfel, 42 Mo. 590; State v. Ranson, 73 Mo. 78. And if a statute which has been amcnded is repealed without referring to the amendment, the amendment is nevertheless repealed also. They both stand or fall together: Blake v. Brackett, 47 Mc. 28; Greer o. State, 22 Tex. 588.

The rule that the repeal of a repealing act revives the act repealed by the latter: 1 Bl. Com. 90; Wheeler v. Roberts, 7 Cow.536; Galc v. Mead, 4 Hill, 109; Brown v. Barry, 3 Dall. 365; Peo.v. Davis, 61 Barb.(N.Y.), 456; Vandenburgh v. President, 66 N. Y. 1; Com v. Churchill, 2 Metc. 118; Hastings 0. Aiken, 1 Gray, 163; Sutherland on Stat., $ 168, and cases cited; applies also to the case of the repeal of an amendment, and in such a case the provisions of the original act become cffective again: Longlois v. Longlois, 48 Ind. 60. In strict language, however, this cannot be regarded as a revival, in the sense in which it is used in the former instance.

As we have seen, the original act is not repcaled, but merely suspended, and its provisions become effective, not by the operation of any rule of law, but merely from the fact that there is no vis major, after the repeal of the amendment, to keep them in thc background. This rule has one qualification, however,

that secms founded in reason and justice; and that is, that when the amending statute merely repcats the language of the original act, without change, a repeal of the amendment operates, pro tanto, as a repeal of the original act, and there is no revival: Moody v. Seaman, 46 Mich. 74. It is difficult to see what valid objections can be urged against this doctrine The sole purpose of statutory construction is to discover and render effectual the intention of the legislature; and when that body has repcaled an amendment, couched in the language of the original act, the conclusion is inevitable, that they meant to repeal, not merely the amending act, but the provisions which it enacted. It requires no argument to prove that in such a case to hold to the doctrine of revival would simply be to defeat the will of the legislature.

II. The question has been very greatly complicated by the constitutional provisions now in force in most, if not all, of the United States, requiring the amended statute to be sct out in full, either expressly or by requiring that the amendment state it to have been amended, “so as to read as follows." Such a provision, of course, makes a material difference in the effect of an amendment. Without such a requirement, an amendment supplies no more of the original act than is inconsistent with it; while with such a provision, the omission of any part of the original act is tantamount to .a repeal. Accordingly, it is the rule that under such a constitutional requirement any provision of the original act, not appcaring in the amendment, is, is within its scope, ipso facto repealed: State v. Andrews, 20 Tex. 230; State v. Ingersoll, 17 Wis. 631; Goodno v. Oshkosh, 31 Wis. 127. But, although an amendment has this effect as to omitted provisions, the amended statute is nevertheless not to be regarded, as to the provisions retained, as repealed and co flatu re-enacted.

It is rather to be held as sinuply continuing, and the amendment, as at common law, to become incorporated with it: Ely v. Holton, 15 N. Y. 595; Moore o. Mausert, 49 N. Y. 332; aff. S. C., 5 Lans. (N. Y.) 173; Burwell v. Tullis, 12 Minn. 572; Alexander v. State, 9 Ind. 337.

This is very lucidly stated by Philips, P. J., in Kamcrick v.


Castleman, 21 Mo. App. 587: “I understand the rulc of construction in this respect to be that where a scction of a statute is amended, and the amendment is in such terms that it takes the place of such section, the statutc in which the original section stood, as to futurc acts, is to be regarded as if the mended section was incorporated therein. So much so is this the rule that, if by an act, subscqucnt to the amendatory act, the section of the original statute be repealed, the amendment which stood in its stead is also thereby repealed. : . And this is so, although the amendment declares that the section is amended. as to read as. Follows.'" The language of the court, in Gordon v. Pco., 44 Mich. 485, is cven more to the point. “The constitutional provision requiring amendments to be made by setting out the whole section as amended was not intended to make ny different rule as to the effect of such amendments. So far as the section is changed it must receive a new operation, but so far as it is not changed it would be dangerous to hold that the mercly nominal rc-enactment should have the effect of disturbing the whole body of statutes in pari matcria which had been passed since its first enactment. There must bc something in the nature of the new legislation to show such an intent with reasonable clcarness before an implied repeal can be recognized." In somc States, however, the question is settled by constitutional provisions. In Alabama, for instance, the constitution declares that the scction or sections amended: shall be repcaled: Wilkinson v. Ketler, 59 Ala. 306; approved. in State v. Warlord, 84 Ala. 15; S. C., 3 So. Rep. 911. And. in California the Political Code cnacts that the amendment of a stitute shall not have the effect of repealing it: Fletcher v. Prather, the principal case (Cal.), 36 Pac. Rep. 658.

In niost other respects the effect of an amendment under the constitutional provision that it "read as follows" is the same as at common law. Thus a repcal of the original act repeals the amendment: Kamerick v. Castleman, 21 Mo. App. 587; but the repcal of an amendment docs not revive thc original act. This necessarily follows from the nature of the case; for the omitted provisions being already repealed by

N. Y. 109.

the amendment, the repcal of the ainendment leaves nothing to be revived. The whole statute becomes merged in the amendment, and they fall together: Peo. v. Supervisors, 67

In Wisconsin, this is by statuto expressly declared to be the effect: Goodno v. Oshkosh, 31 Wis. 127; Rev. St. Wis., C. 5. s. 25, subd. 3.

There remains the very curious question whether, after a statute has once been amended, an amendment of the original act will repeal it. At common law, of course, no such question could arise, unless the provisions of the two amendments were in pari matcria, and inconsistent with each other. So long as any material was left to work over, amendments might be passed and libitum, and all would stand. But with the advent of the constitutional rule, repealing by implication everything omitted in the amendment, there could no longer be anything left to work over, and a second amendment, to be operative at all, must of necessity repcal the first. Accordingly, the consensus of authority declares in favor of the repcal: Fletcher v. Prather (Cal.), the principal case, 36 Pac. Rep. 658; Basnett v. Jacksonville, 19 Fla. 664. When a section of the revised statutcs was repcaled and re-enacted in a changed form, a subsequent statute which in terms repealed and re-enacted the original section in still another form, was held to be a repeal of the section in its amended form, and to take the place of the amended section as part of the revised statutes : State: v. Brewster, 39 Ohio St. 653. So in Com. v. Kenneson, 143 Mass. 418; S. C., 9 N. E. Rep. 761, there had been an amendment passed in 1885, and another in 1886, in cach case reading “ section nine of chapter fifty-seven of the public statutes is hereby amended so as to read as follows ;” and then followed a sentence covering the whole ground of the original section, and impliedly repealing the preceding provisions. It was held that the intent of the legis. lature was plain that the first statute should take effect instead of the original, and that the second should take effect instcad of the first. This is a necessary corollary of the doctrine that the amendment takes the place of the original section; for, that being the casc, any reference to the correspondi

« PreviousContinue »