Columbia Wire Co. v. Boyce

• Decision Date: 13 October 1900
• Docket Number: 731.
• Citation: 104 F. 172
• Parties: COLUMBIA WIRE CO. v. BOYCE.
• Court: U.S. Court of Appeals — Seventh Circuit

104 F. 172

COLUMBIA WIRE CO. v. BOYCE.

No. 731.

United States Court of Appeals, Seventh Circuit.

October 13, 1900

John R Bennett, for appellant.

Geo. S House and C. E. Pickard, for appellee.

Before WOODS, and GROSSCUP, Circuit Judges, and SEAMAN, District judge.

WOODS Circuit Judge.

This appeal is from an order entered on August 6, 1900, denying a preliminary injunction, and the motion of the appellee to dismiss must be sustained. The right of appeal is statutory. The seventh section of the judiciary act of 1891 provided 'that where, upon a hearing in equity in a district court, or in an existing circuit court, an injunction shall be granted or continued by an interlocutory order or decree * * * an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the circuit court of appeals.' 26 Stat. 828. By the act of February 16, 1895 (2 Supp.Rev.St.p. 376), that section was 'amended to read as follows: That where, upon a hearing in equity in a district court or a circuit court, an injunction shall be granted, continued, refused or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, * * * an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve an injunction to the circuit court of appeals. ' By an act approved June 6, 1900 (Stat. 1899-1900, p. 660), it was provided, without express reference to the act of 1895, that the seventh section of the act of 1891 'be amended to read as follows: Sec. 7. That where, upon a hearing in equity in a district court or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued or a receiver appointed, by an interlocutory order or decree, * * * an appeal may be taken from such interlocutory order or decree granting or continuing such injunction or appointing such receiver to the circuit court of appeals. ' This act, it will be observed, omits of the act of 1895 all that was not contained in the original section, and, besides adding the phrase 'or by a judge thereof in vacation,' gives a right of appeal from any order or decree appointing a receiver.

Two questions are presented: First, is the last act invalid because it purports to amend a section of the original act which had already been amended? and, second, if the last act be valid, did its enactment operate to repeal the act of 1895?

In some of the states, by reason of constitutional provisions prescribing how amendments should be enacted, and requiring that the subject of an act be stated in the title thereof, it has been held that an amendatory act, to be valid, must relate to an existing and valid statute, and not to one which has been repealed or declared unconstitutional. 23 Am.& Eng.Enc.Law, 276; Igoe v. State, 14 Ind. 239; Blakemore v. Dolan, 50 Ind. 194; Hall v. Craig, 125 Ind. 529, 25 N.E. 538; State v. Benton, 33 Neb. 823, 833, 51 N.W. 140, 144; Wall v. Garrison, 11 Colo. 515, 19 P. 469. In the absence of constitutional restriction, the reasonable rule would seem to be, as it has been several times declared, that an amendatory statute will be upheld though it purport to amend a statute which had already been amended, or which was for any reason invalid. Com. v. Kenneson, 143 Mass. 418, 9 N.E. 761; Jones v. Commissioner, 21 Mich. 236; State v. Brewster, 39 Ohio St. 653; Basnett v. City of Jacksonville, 19 Fla. 664; Greer v. State, 22 Tex. 588; State v. Warford, 84 Ala. 15, 3 So. 911; Blake v. Brackett, 47 Me. 28.

In the Massachusetts case referred to, as here, the original statute had been twice amended, 'so as to read as follows,' and, giving effect to the evident intention of the legislature, the court held that the second amendatory act though it purported to amend the original statute and contained no express reference to the first amendment, was valid, and that the second act, or first amendment, had been repealed by implication. In the Maine case it was held that the repeal of a section of the Revised Statutes repealed the section as it had been amended. The ruling in Alabama was that a statute, amending a statute which had previously been amended, was constitutional, although the former amendment had been...