§ 147. Power of repeal. It is a principle of legislative law that one legislature cannot bind a subsequent one, or, beyond the operation of its rules of procedure,1 even itself, as to future acts. So that no statute can be made which may not afterward be repealed, and no general statutory provision against repeals is effectual. But, in discussions further on, we shall see that our written constitutions indirectly, in some degree, restrain repeals; as, for example, where they would divest vested rights,3 or impair the obligations of a contract." 1 Spencer v. S., 5 Ind. 41; Dwar. Stat. (2d ed.) 530. The former rules of the two houses of parliament, prohibitory of repeals during the session in which an act was passed, were made inoperative by 13 and 14 Vict., ch. 21, § 1. Wilb. Stat. Law, 309. Ante, $31; Crim. Law, I, § 35, note; 4 Inst. 42, 43; 1 BL. Com. 90, 91; Jenk. Cent. 2; Stone v. Mississippi, 101 U.S. 814: Musgrove v. Vicksburg, etc. R. R. Co., 50 Miss. 677; Oleson v. Green Bay, etc. Ry. Co., 36 Wis. 383; S. 1. Pilsbury, 31 La. An. 1; Freleigh v. S., 8 Mo. 606; Thomas v. Daniel, 2 McCord, 354; Kellogg v. Oshkosh, 14 Wis. 623; Atty. Gen. v. Brown, 1 Wis. 513; Wall v. S., 23 Ind. 150; S. v. Craig, 23 Ind. 185; Hamrick v. Rouse, 17 Ga. 56; Shaw v. Macon, 21 Ga. 280; Armstrong v. Dearborn, 4 Blackf. 208; Brightman v. Kirner, 22 Wis. 54. [The unnecessary ratification of a statute within the power of a terri torial legislature will not prevent 4 Bloomer v. Stolley, 5 McLean, 158. § 148. How chapter divided.-We shall consider, I. Whether non-user works a repeal; II. Repeals by express words; III. Repeals by implication; IV. Repeals in particular states. I. WHETHER NON-USER WORKS A REPEAL. § 149. Opinions that it does.- Some have deemed a long course of forbearing to evoke the power under a statute, termed non-user, to be a repeal of it. And in South Carolina it was observed: "The court, in Watson v. Blaylock, declared the act imposing penalties on lay magistrates for solemnizing marriages obsolete and invalid, the only instance in our judicial history in which courts have ventured to declare an act of the legislature inoperative from mere non-user." In a later case this doctrine, that a statute may become inoperative by nonuser, appears to have been recognized. But, That it does not. In reason, and by most of the authorities, the power alone which can make a law is competent to annul one; so that no usage, either negative or positive, can grow into a law adverse to a statute. Should the matter to which it relates no longer exist, it will cease to have a practical operation; or, should the reason for it have passed away, its repeal by the legislature might be judicious; but, by the better opinion, all unrepealed statutes must be enforced when the subject and occasion call; they do not become void by nonuser. Yet, Hill v. Smith, Morris, 70, 76. Dwarris says: "The Scotch lawyers hold that a statute loses its force by desuetude, if it hath not been put in execution for sixty years. Other writers have extended this term to a century, and make a distinction between statutes half obsolete and those in viridi observantia. A vague notion seems, too, from the very frequent renewal of some of our fundamental laws, to have prevailed at different times in England, that a statute might become obsolete; but such opinion is unfounded, and has no warrant in our law." Dwar. Stat. (2d ed.) 529. O'Hanlon v. Myers, 10 Rich. 128. 5 Com. v. Hoover, 1 Browne (Pa. Ap.), 25. 6 James v. Com., 12 S. & R. 220, 228; S. v. Tidwell, 5 Strob. 1. 7 White v. Boot, 2 T. R. 274; S. v. Findlay, 2 Bay, 418; S. v. Tidwell, supra; Com. v. Hoover, supra; Dwar. Stat. (2d ed.) 529; Snowden v. Snowden, 1 Bland, 550; The India, Browning & L. 221. Contra, James v. Com., supra. [A statute cannot lose its force by non-user unless such nonuser be accompanied by the enact Meaning (Implied legislative repeal).— In determining the meaning of a statute, contemporaneous usage may, we have seen,1 be resorted to. And, on this principle, non-usage under it may help the implication of its repeal by inconsistent provisions in a subsequent act. Discretionary power So,(Information).— Long disuse of a statute may be among the considerations influencing a court to decline mere discretionary action under it; as, when asked to grant an information.* § 150. Custom is a species of non-user. It does not differ greatly from usage, and neither the one nor the other can overturn a positive rule of the common law or a statute. Therefore a custom to regard a statute as repealed can never ripen. into a repeal; there could never come a time when it would be a valid custom. In partial contradiction or qualification of this doctrine, it has been laid down in England that the common law, or a statute merely declaratory of it, may be repealed by custom, but doubts have been entertained of the latter part of this proposition. Neither part of it would, it is believed, be accepted in our country to the overturning of a positive rule. 3 Leigh v. Kent, 3 T. R. 362, 364. Rex v. Dodd, 9 East, 516. 5 v. Dey, 13 Johns. 40; Dunham v. Gould, 16 Johns. 367. [8 Am. D. 323;] Bank of Utica v. Wager, 2 Cow. 712; Newbold v. Wright, 4 Rawle, 195; Harris v. Carson, 7 Leigh, 632, [30 Am. D. 510;] Strong v. Bliss, 6 Met. 393; Stoever v. Whitman, 6 Binn. 417. And see Burbank v. Fay, 65 N. Y. 57. [Statutes are not abrogated or controlled by customs, nor can they be disregarded because in many cases they are of no practical importance. Peterson v. Hays, 85 Iowa, 14, 51 N. W. R. 1143; Winter v. U. S., Hempst. 344; Mosier v. Harmon, 29 Ohio St. 220; Maury v. Beekman, 9 Paige, 188; Pickering v. Weld, 159 Mass. 522, 34 Bishop, Con., § 449-459; Crim. Law, II, 8 852; Greene v. Tyler, 39 Pa. St. 361; Holmes v. Johnson, 42 Pa. St. 159; Delaplane v. Crenshaw, 15 Grat. 457; Rex v. Gordon, 1 B. & N. E. R. 1081; Colgate v. Penn. Co., Ald. 524, 527; Noble v. Durell, 3 T. R. 102 N. Y. 120. 6 N. E. R. 114; The 271, 273, 274; Reed v. Richardson, 98 Lafayette, 20 Fed. R. 319; Crocker v. Mass. 216, 218, [93 Am. D. 155;] Trem- Schureman, 7 Mo. Ap. 358.] ble v. Crowell, 17 Mich. 493; Hinton บ. Locke, 5 Hill (N. Y.), 437; Cranwell v. Fosdick, 15 La. An. 436; Dunham 6 Dwar. Stat. (2d ed.) 475-477; Bac. Abr., Statute, G. either of the common or the statutory law; for, with us, custom is admitted simply to supplement, not to supersede, the prior law, whether statutory or common.' II. REPEAL BY EXPRESS WORDS. § 151. Designated statute or provision. The common form of repeal is where an act says, in terms, that such a statute, clause of a statute or provision of the common law is repealed.? If, on the entire face of the repealing act, its intent is plainly less broad than particular words in it, such intent will prevail in the construction. And, in all respects, a repealing clause, like any other, will be rendered by the courts in the sense evidently meant by the repealing power. A provision, subjecting to a fine any one vending merchandise not the product of the United States, was, by a subsequent act in terms repealing so much of this one as required a license to vend coffee, tea and sugar, held to be repealed as to the enumerated articles." Repeal before enactment complete.- The two houses of a legislature passed an act, then repealed a clause in it before the governor's signature was attached, then the governor signed it. And the repeal of the clause was adjudged to be effectual, on the ground that, since the legislature could abrogate a statute duly signed, it could do the same of one before signing." So, Question of validity in suspense. If, because of a division of opinion among the judges, or for any other reason, the validity of a repealing statute remains however long in suspense, then finally it is decided to be valid, the repealed act will be treated as having had no force during the period of doubt. 1 See the note before the last. • Ante, § 70. 5 Townsend Savings Bank v. Epping, 3 Woods, 390; Prince George's Commissioners v. Laurel, 51 Md. 457; S. v. Clay, 12 La. An. 431. And see Madison, etc. Plank-road v. Reynolds, 3 Wis. 287. 6 Taylor v. S., 7 Blackf. 93. 7Southwark Bank v. Com., 26 Pa. St. 446. 8 Ingersoll v. S., 11 Ind. 464. So, repeal destroying party's interest. A clause in the charter of a bridge company having forbidden § 152. Within" purview."- Another form of direct repeal is by inserting, in a statute, a clause declaring all acts within its "purview" repealed.' The meaning of the word "purview," when indicating a particular part of a statute, is, we have seen, variable; and, in the present connection, its sense is evidently still different, denoting the scope or sphere of the statute. So that the effect of this expression is to repeal former statutes simply as to cases provided for in the repealing acts. And it does not differ essentially from a repeal of Inconsistent provisions.- Not unfrequently a clause is inserted in a statute repealing all laws in conflict or inconsistent with it," "contravening" it, or the like. If the provisions of the former and present enactments are in direct contrariety, the repeal takes place, but only to the extent of the repugnance.10 If, on the other hand, by any reasonable contracting, expanding, cutting short, or extending of the old laws or the new, as explained in the foregoing chapter, they can be brought into harmony without repeal, the interpretation should be so, and all suffered to stand together. Thus, General and specific.— As already seen," general and specific provisions in apparent contrariety may subsist together without working a repeal, the specific qualifying and supplying exceptions to the general.12 the erection of any other bridge within a mile of the one to be erected by the company, a repeal of this clause was held to place the company in precisely the same position, in reference to a second bridge, as if it had never been in the charter. Fort Plain Bridge v. Smith, 30 N. Y. 44. 1 Ely v. Thompson, 3 A. K. Mar. 70; Scott v. Com., 2 Va. Cas. 54; Payne v. Conner, 3 Bibb, 180. 2 Ante, § 52. 3 Webster quotes, to support this meaning of the word "purview:" "In determining the extent of infor mation required in the exercise of a particular authority, recourse must be had to the objects within the purview of that authority. Federalist, Madison." 4 Payne v. Conner, 3 Bibb, 180; P. v. Durick, 20 Cal. 94; Lewis v. Stout, 22 Wis. 234. 5 S. v. Barrow, 30 La. An. 657. 6 Hale v. S., 15 Conn. 242; S. v. Taylor, 2 McCord, 483; Jackson v. S., 12 Ga. 1; P. v. Durick, 20 Cal. 94; Com. v. Costello, 118 Mass. 454. 7 Tims v. S., 26 Ala. 165. 8 Same subject-matter, etc.-See S. v. Cunningham, 72 N. C. 469; Hodge v. Hodge, 72 N. C. 616; S. v. King, 12 La. An. 593. 9 Tierney v. Dodge, 9 Minn. 166; P. v. Lytle, 1 Idaho, 161. 10 Elrod v. Gilliland, 27 Ga. 467. 11 Ante, §§ 112a, 126, and places there referred to. 12 Dolan v. Thomas, 12 Allen, 421. And see Cain v. S., 20 Tex. 355; S. v. Macon County Court, 41 Mo. 453; [S. |