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§ 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 wbich 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;s 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,

1 Hill V. Smith, Morris, 70, 76. 2 2 Mill, 351. Dwarris says: “The Scotch lawyers 3 Canady v. George, 6 Rich. Eq. 103, hold that a statute loses its force by 106. desuetude, if it hath not been put in * O'Hanlon v. Myers, 10 Rich. 128. execution for sixty years. Other 5 Com. v. Hoover, 1 Browne (Pa. writers have extended this term to Ap.), 25. a century, and make a distinction 6 James v. Com., 12 S. & R. 220, 228; between statutes half obsolete and S. v. Tidwell, 5 Strob. 1. those in viridi observantia. A vague 7 White v. Boot, 2 T. R. 274; S. v. notion seems, too, from the very fre. Findlay, 2 Bay, 418; S. v. Tidwell, quent renewal of some of our funda- supra; Com. v. Hoover, supra; Dwar. mental laws, to have prevailed at Stat. (2d ed.) 529; Snowden v. Snowdifferent times in England, that a den, 1 Bland, 550; The India, Brownstatute might become obsolete; but ing & L. 221. Contra, James u. Com., such opinion is unfounded, and has supra. [A statute cannot lose its no warrant in our law.” Dwar. Stat. force by non-user unless such non(2d ed.) 529.

user be accompanied by the enact

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$ 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,' 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,» or impair the obligations of a contract.

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Spencer v. S., 5 Ind. 41; Dwar. Stat. torial legislature will not prevent (2d ed.) 530. The former rules of the the legislature from changing the two houses of parliament, prohibitory statute. Martin v. Territory, 8 Okl. of repeals during the session in which 41, 56 Pac. R. 712. The action of the an act was passed, were made inoper- legislature in the exercise of its police ative by 13 and 14 Vict., ch. 21, § 1. powers cannot be limited or conWilb. Stat. Law, 309.

trolled by the action of a previous 3 Ante, $ 31; Crim. Law, 1, $ 35, note; legislature, or by the provisions of 4 Inst. 42, 43; 1 BL Com. 90, 91; Jenk. contracts between individuals or corCent. 2; Stone v. Mississippi, 101 U. S. porations. Buffalo R. R. Co. v. R. R. 814; Musgrove v. Vicksburg, etc. R. Co., 111 N. Y. 132, 19 N. E. R., 63; R Co., 50 Miss. 677; Oleson v. Green Presbyterian Church v. City of New Bay, etc. Ry. Co., 36 Wis. 383; S. v. York, 5 Cow. 538. Even where the Pilsbury, 31 La. An. 1; Freleigh v. S., legislature has granted substantiai 8 Mo. 606; Thomas v. Daniel, 2 Mc- privileges, there is always an implied Cord, 354; Kellogg v. Oshkosh, 14 condition that the grantees are to be Wis. 623; Atty. Gen. v. Brown, 1 Wis. subject to the reasonable regulation 513; Wall v. S., 23 Ind. 150; S. v. of future legislatures. Chicago Ins. Craig, 23 Ind. 185; Hamrick v. Rouse, Co. v. Needles, 113 U. S. 574, 28 L. ed. 17 Ga. 56; Shaw v. Macon, 21 Ga. 280; 1084; Erie R. R. Co. v. Pennsylvania, Armstrong v. Dearborn, 4 Blackf. 153 U. S. 642, 38 L. ed. 846.] 208; Brightman v. Kirner, 22 Wis. 54. 3S. v. Pilsbury, supra. (The unnecessary ratification of a 4 Bloomer v. Stolley, 5 McLean, 158 statute within the power of a terri

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$ 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.

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I. WHETHER NON-USER WORKS A REPEAL.

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$ 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 wbich 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,

1 Hill v. Smith, Morris, 70, 76. 2 2 Mill, 351. Dwarris says: "The Scotch lawyers 3 Canady v. George, 6 Rich. Eq. 103, hold that a statute loses its force by 106. desuetude, if it hath not been put in 4 O'Hanlon v. Myers, 10 Rich. 128. execution for sixty years. Other 3 Com. v. Hoover, 1 Browne (Pa. writers have extended this term to Ap.), 25. a century, and make a distinction 6 James v. Com., 12 S. & R. 220, 228; between statutes half obsolete and S. v. Tidwell, 5 Strob. 1. those in viridi observantia. A vague 7 White v. Boot, 2 T. R. 274; S. v. notion seems, too, from the very fre. Findlay, 2 Bay, 418; S. v. Tidwell, quent renewal of some of our funda- supra; Com. v. Hoover, supra; Dwar. mental laws, to have prevailed at Stat. (2d ed.) 529; Snowden v. Snowdifferent times in England, that a den, 1 Bland, 550; The India, Brownstatute might become obsolete; but ing & L. 221. Contra, James v. Com., such opinion is unfounded, and has supra. (A statute cannot lose its no warrant in our law." Dwar. Stat. force by non-user unless such non(2d ed.) 529.

user be accompanied by the enact

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Meaning - (Implied legislative repeal).— In determining the meaning of a statute, contemporaneous usage may, we have seen,' 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. So,

Discretionary power (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

ment of other irreconcilable statutes. v. Dey, 13 Johns. 40; Dunham v. Pearson v. Distillery, 72 Iowa, 348, 34 Gould, 16 Johns. 367, [8 Am. D. 323;] N. W. R. 1. The positive require- Bank of Utica v. Wager, 2 Cow. 712; ments of a statute cannot be treated Newbold v. Wright, 4 Rawle, 195; as obsolete. Kitchen v. Smith, 101 Harris v. Carson, 7 Leigh, 632, (30 Pa. St. 456; Homer v. Com., 106 Pa. Am. D. 510;] Strong v. Bliss, 6 Met. St. 221, 51 Am. R. 521.]

393; Stoever v. Whitman, 6 Binn. 417. 1 Ante, S 104.

And see Burbank v. Fay, 65 N. Y. 57. ? Chesnut v. Shane, 16 Ohio, 599, (Statutes are not abrogated or con(47 Am. D. 387;] Dwar. Stat. (2d ed.) trolled by customs, nor can they be 530.

disregarded because in many cases Leigh v. Kent, 3 T. R. 362, 364. they are of no practical importance. 4 Rex v. Dodd, 9 East, 516.

Peterson v. Hays, 85 Iowa, 14, 51 N. 5 Bishop, Con., SS 449-459; Crim. W. R. 1143; Winter v. U. S., Hempst. Law, II, S 852; Greene v. Tyler, 39 344; Mosier v. Harmon, 29 Ohio St. Pa. St. 361; Holmes v. Johnson, 42 220; Maury v. Beekman, 9 Paige, 188; Pa. St. 159; Delaplane v. Crenshaw, Pickering v. Weld, 159 Mass. 522, 34 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 6 Dwar. Stat. (2d ed.) 475-477; Bac v. Locke, 5 Hill (N. Y.), 437; Cranwell Abr., Statute, G. v. Fosdick, 15 La. An. 436; Dunham

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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.

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1 See the note before the last.

5 Townsend Savings Bank v. Ep2 Chambers v. S., 25 Tex. 307; 8. v. ping, 3 Woods, 390; Prince George's Beneke, 9 Iowa, 203. And see Leard Commissioners v. Laurel, 51 Md. 457; v. Leard, 30 Ind. 171. [The specific S. v. Clay, 12 La. An. 431. And see repeal by one statute of a particular Madison, etc. Plank-road v. Reynolds, section of another raises a presump- 3 Wis. 287. tion that no further repeal is in- 6 Taylor v. S., 7 Blackf. 93. tended than expressed, except in 7 Southwark Bank v. Com., 26 Pa. cases of absolute inconsistency. P. St. 446. v. Henwood (Mich.), 82 N. W. R. 70.] Ingersoll v. S., 11 Ind. 464.

3 Smith v. P., 47 N. Y. 330. See So, repcal destroying party's inante, 87.

terest.– A clause in the charter of a 4 Ante, & 70.

bridge company having forbidden

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