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acts already done shall be punished under the new law, the remedy is gone. It is deemed that, the old law being unqualifiedly repealed, there can be no punishment under it; neither, on the other hand, can the new punishment be inflicted, because this would be ex post facto. These and some connected views being special to this state, and not of common interest elsewhere, it will suffice simply to refer to the authorities."

$ 186. Repeal of repealing statute.- Subject to some exceptions, the repeal of a repealing statute revives the old law, whether statutory or common. And this rule prevails even in the case of a repeal by the implication of a conflicting enactment.' So, with the repeal of a statute which had merely modified the law, the modification ceases. Now,

Common-law exceptions.— There are common-law exceptions to this doctrine, growing out of the reasons of particular cases, , and probably not reducible to rule. Thus, “if a statute,” says Dwarris,“ “ be repealed by several acts, a repeal of one act, or two, and not of all, does not revive the first statute. If a repealing statute, and part of the original statute, be repealed by a subsequent act, the residue of the original statute is revived.? If an act of parliament be revived, all acts explanatory of that so revived are revived also." & And there are other exceptional cases of like nature. A statute which refers to and adopts the

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1 Hartung v. P., 22 N. Y. 95; Shep U. S. 52, 30 L. ed. 559. Where a fedherd v. P., 25 N. Y. 406; Hartung v. eral statute is repealed, the old state P., 26 N. Y. 167, 28 N. Y. 400; Ratzky law which it superseded springs into v. P., 29 N. Y. 124; McKee v. P., 32 operation. Tua v. Carriere, 117 U.S. N. Y. 239.

201, 29 L. ed. 855; Buckwalter v. 2 S. v. Rollins, 8 N. H. 550, 567; Com. County, 12 Pa. Sup. Ct. 272. The genv. Churchill, 2 Met. 118; Com. v. Mott, eral repealing clause of a revision re21 Pick. 492; Directors of the Poor v. fers only to general statutes, and not R. R. Co., 7 Watts & S. 236; James v. to those regarding particular matters. Dubois, 1 Harrison, 285; 1 Kent, Com. S. v. Com'r (Wis.), 82 N. W. R. 549.) 466; Wayman v. Naylor, 2 Blackf. 32; 3 Hastings v. Aiken, 1 Gray, 163. Janes v. Buzzard, Hemp. 259; Harri. * Glaholm v. Barker, Law Rep. 1 son v. Walker, 1 Kelly, 32. And see Ch. Ap. 223, 229. Com. v. Marshall, 11 Pick. 350, 351, [22 5 Dwar. Stat. (2d ed.) 534. Am. D. 377;] P. v. Wintermute, 1 6 The Bishop's Case, 12 Co. 7; TatDak. 63; Gray v. Obear, 54 Ga. 231; tle v. Grimwood, 3 Bing. 493, 496. Lindsay v. Lindsay, 47 Ind. 283; Phil. Broughton v. Gully, 9 B. & C. 344, lips v. Hopwood, 5 Man. & R. 15, 10 354. B. & C. 39; P. v. Hunt, 41 Cal. 435; 8 Williams v. Roughodge, 2 Bur. [Wallace v. Bradshaw, 54 N.J. L 175, 747. 23 Atl. R. 759; U. S. v. Philbrick, 120 9 Goodno v. Oshkosh, 31 Wis. 127;


provisions of another statute is not repealed by the subsequent repeal of the statute adopted.'

Statutory exceptions.- Sometimes the statute which repeals a repealing one specifies an effect different from the commonlaw rule, and then it inust prevail. And of late, both in England’ and in many of our states, there is a general enactment providing that repealed laws shall not be revived by the repeal of the statute which repealed them. Thus, in Illinois, “no act or part of an act repealed by another act of the general assembly shall be deemed to be revived by the repeal of such repealing act.”3 Like words prevail in Louisiana. In Ohio they are: “Whenever a law shall be repealed which repealed a former law, the former law shall not thereby be revived unless specially provided for.” And this regulation is held in the United States circuit court to apply to repeals which are implied by reason of repugnance, as well as to those which are express.

$ 187. Repealing statute expiring-(Temporary).— Where a repealing statute expires of its own limitation, the repealed law does not-revive. Where there is a temporary statute, subsequently continued, made perpetual, or revived by another, after its period has elapsed, or, of course, before, all things done are regarded as having transpired under the first statute; though, if there is an intermediate time in which it had no force, such time, unless saved by a special clause, is lost.?


P. v. Tyler, 36 Cal. 522; P. v. Brooke 5 Milno v. Huber, 3 McLean, 212. lyn, 8 Abb. Pr. (N. S.) 150.

As to Wisconsin, see Smith v. Hoyt, 1 Sikar v. Chicago, etc. R. R. Co., 21 14 Wis. 252. As to California, ManWis. 370.

love v. White. 8 Cal. 376. 13 and 14 Vict., ch. 21, SS 5, 6; Levi 6 U.S.2. Twenty-five Cases of Cloths, v. Sanderson, Law Rep. 4 Q. B. 330; Crabbe, 356. (Where a statute has Glaholm v. Barker, supra, at p. 229. expired, been repealed, or declared 'Sullivan v. P., 15 Ill. 233.

void, all subsequent amendments are 4 Tallamon v. Cardenas, 14 La. An. also void. Helt v. Helt, 152 Ind. 142, 509; Witkouski v. Witkouski, 16 La. 52 N. E. R. 699.] An. 232

11 Kent, Com. 466 205




$ 188. General and legal interpretation compared.— Every writing must, to be understood, be interpreted by the reader. And the merit of the interpretation is commensurate with its success in ascertaining what the writer meant. All know this to be true, for example, of the letter of a friend describing a country in which he is traveling. And we have seen that the same is true also of the written laws,- they require interpretation, the object whereof is simply to determine the meanings of the makers. In the instance of the letter, should the reader have been born and reared between walls affording no outlook,- should he never have seen a hill, valley, plain, sheet of water, flowing stream, or landscape of any sort,— his understanding of its descriptions would necessarily be very imperfect. For they could be comprehended only by mingling with the words, to illumine, enlarge, compress and otherwise modify their primary meanings, the results of a familiarity with external nature. So interpretation deals with everything; so, we have seen, it does with the written laws. The mind of the interpreter truly comprehends them only as he collates them with the rest of the legal system. Now,

Doctrine of this chapter defined.— The doctrine of this chapter is that, since all language is elastic in its meanings, since the language of the written laws is to be interpreted by the reasons of the law, and since these reasons are numerous and the results to which they severally press are diverse, statutes are in meaning variously contracted and expanded according to the differing numbers, natures and strength of the reasons which individually or collectively enter into their interpretation.

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1 Ante, SS 70–72, 116.

2 Ante, SS 82, 86-90, 92d, 102, 113b et seq., 122 et seq.

$ 189, Elsewhere - Here — And distinguished. - To the casual thought this chapter may appear the same in subject with a preceding one, in which it was shown how the various provisions of the statutory and common laws, being interpreted together, cut short and extend one another in their effects. But it has been explained that the difference is absolute and complete. Not the minutest particle of what pertains to the one topic is included in the other. We are here inquiring not after the effects, but the meanings; and no wider distinction exists between any two things in the law.

$ 189a. Illustrations of doctrine.- The doctrine of this chapter will be best explained by a series of illustratious; thus,

Derogation of prior law.— As shown in other connections, affirmative statutes in derogation of the prior law, whether statutory or common, are strictly construed; that is, kept in meaning strictly within their terms.* An excellent writer, referring to so much of this rule as relates to the prior common law, attributes it to the high reverence formerly paid to such law, and deems that now, while legislation is greatly changing it, this rule of interpretation has ceased to have any “solid foundation in our jurisprudence.” But the thoughtful reader will see that the rule is derived from no such reason as is thus supposed, nor could it ever have depended on any reason even analogous thereto. Every judge is by the character of his duties compelled to pay respect to all the laws which he is sworn to administer, whatever may be his private opinions respecting any particular ones,— he cannot judicially deem one law to be

1 Ante, § 122 et seq.

4 Cush. 63; (S. v. Babcock, 21 Neb. 2 Ante, SS 118a, 1186.

599, 31 N. W. R. 682; Com. v. Barber, 3 Ante, SS 119, 155.

143 Mass. 560, 10 N. E. R. 330; S. v. 4 Post, S 190e; Ash v. Abdy,3 Swanst. Palmes, 23 Fla. 620, 3 S. R. 171; Dean 664; Boyd v. S., 53 Ala. 601; Wood v. v. R. R. Co., 119 N. Y. 540, 23 N. E. R. Woods, Phillips (N. C.), 538; Dewey 1054; Rogers v. R. R. Co., 91 Fed. R. v. Goodenough, 56 Barb. 54; East St. 300; Frazier v. R. R. Co., 88 Tenn. Louis v. Maxwell, 99 Ill. 439; Barrett 138, 12 S. W. R. 537; Cadwallader v. v. Long, 3 H. L. Cas. 395; Arthur v. Harris, 76 Ill. 370; Wilbur v. Crane, Bokenham, 11 Mod. 148, 150; Wear v. 13 Pick. (Mass.) 284. In many states Adamson, 1 Q. B. D. 546, 554, 2 Ap. the rule with respect to statutes in Cas. 743; Stevenson v. S., 5 Bax. 681; derogation of the common law has Hawthorne v. S., 58 Miss. 778; Spring- been changed by statute.] field v. Connecticut River R. R. Co., 5 Sedgw. Stat. Law (2d ed.), 267–274

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good and another bad, -cannot prefer one to another,-cannot love one and hate another.1 Therefore he cannot construe one law strictly because he thinks another better than it, or liberally because he deems another poorer. But the reason why an affirmative statute contrary to the prior law is to be kept by the courts within its express terms is that, where two laws stand side by side with no words of repeal, the one later in date is in its very nature powerless to take from the earlier anything which is not directly in conflict with it. Presumption has no room to work. Implication against what is positively ordained is never permitted in our jurisprudence. Again,

$ 189b. Depriving of life. The law, in numerous of its provisions, is watchful over human life, and careful to avoid the taking of it away. A judge, as a man, may be of the same mind with the law, or he may not; but, in his judicial capacity, he is required to preserve, as far as he may, the lives of the people. Therefore the courts should and do give a strict construction to statutes which inflict capital punishment.? Here the interpretation is the same as of a statute in derogation of the prior law,- that is, it is strict,— but the reason is quite different. Once more,

§ 189c. Taking away public or private rights. It being a primary function of all laws to maintain the rights of indi. viduals and the public, statutes taking any of them away, even where not unconstitutional, are to be strictly construed. The reason for this, the reader perceives, is substantially the same as. for the like doctrine of the last section. On the other hand,

1 Ante, & 70; post, S 235; Reithmil. [Public grants are strictly construed. ler v. P., 44 Mich. 280.

Wis. Cent. R. R. Co. v. U. S., 164 U. S. 2 2 Hawk. P. C., ch. 18, § 16; Rex v. 190, 41 L. ed. 399; Y. & M. R. R. Co. Harvey, 1 Wils. 164; Rex v. Whist- V. Thomas, 132 U. S. 174, 33 L ed. ler, 11 Mod. 25, 28 and note.

302; Oregon Co. v. R. R. Co., 130 U. S. 3 Ante, SS 82, 119; Morris v. Mellin, 1, 32 L. ed. 837. But not so strictly 6 B. & C. 446, 449; Oldakar v. Hunt, as to withhold what is fairly given. 19 Beav. 485, 489, 490; Randolph v. U. S. v. R. R. Co., 150 U. S. 1, 37 L. ed. Milman, Law Rep. 4 C. P. 107, 113; 975. See also Hamilton Co. v. HamRex v. Birmingham Canal, 2 B. & ilton, 146 U. S. 258, 36 L. ed. 963. Ald. 570, 579; Harrod v. Worship, 1 Statutes allowing compensation to B. & S. 381; Deptford v. Sketchley, officers are interpreted strictly in 8 Q. B. 394, 408; Yarmouth 2. Sim- favor of the state. U. S. v. Clough, mons, 10 Ch. D. 518, 527; U. S. v. 55 Fed. R. 373.] Athens Armory, 35 Ga. 344, 351.

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