Davies v. Creighton

• Decision Date: 14 October 1880
• Citation: Davies v. Creighton, 74 Va. 696 (1880)
• Court: Virginia Supreme Court
• Parties: DAVIES & CO. v. CREIGHTON.

74 Va. 696

DAVIES & CO. v. CREIGHTON.

Supreme Court of Appeals of Virginia.

October 14, 1880

1. For the principles governing the question of the repeal of a statute by implication, see the opinion of Burks, J.

2. The act of May 29, 1852, which authorizes the organization of building fund associations, has not been repealed by any of the subsequent statutes; and a building fund association organized under that statute on the 8th of September, 1872 is a legally organized association.

This was an action of ejectment in the circuit court of Amherst county, brought by A. M. Davies and P. E. Waugh, partners under the name of A. M. Davies & Co. against Henry W Creighton, to recover a tract of two acres of land lying in Amherst county. On the trial the plaintiffs offered in evidence a deed from the trustees of the Mutual building fund association of Lynchburg to the plaintiffs, and also with it the articles of association of the said company. This company was organized September 8, 1872, in the manner authorized by the act of May 29, 1852, without authority from the court. But the court excluded the evidence, and the plaintiffs excepted. There was a verdict and judgment for the defendant and the plaintiffs obtained a writ of error.

John H. Lewis, for the appellants.

There was no counsel for the appellees.

OPINION

BURKS, J.

This is a writ of error to a judgment of the circuit court of Amherst county rendered in behalf of the defendant in an action of ejectment.

The plaintiffs in error here were the plaintiffs in the action below, and on the trial of the issue, in order to show title in themselves to the land in controversy, they offered to introduce in evidence to the jury the deed of J. P. Bell, S. R. Dawson, and J. J. Mahone, described as trustees of the Mutual building fund association of Lynchburg, which deed purported to be attested by the president and secretary of said association, conveying to the plaintiffs the land claimed in the declaration, and, in connection with the deed, they also offered to introduce certain articles under which they claimed that the said association was a duly constituted corporation under the laws of this State. The defendant objected to the introduction of the deed and articles as evidence, and on his motion they were excluded from the jury. To this ruling of the court the plaintiffs excepted, and tendered their bill of exceptions, which was signed, sealed, and made a part of the record.

The rejection of these papers as evidence is the only error assigned. No reason for the rejection is stated in the bill of exceptions, but it is understood and has been so argued here, that the learned judge, who presided at the trial, based his ruling solely on the ground that the special statutes which authorized the self-incorporation of building fund associations by articles such as were offered in evidence had been repealed and superseded by other statutes of a more general character, which empower the courts to grant charters, and therefore that the Mutual building fund association of Lynchburg, never having obtained a charter in the mode prescribed by the statutes last mentioned, was never duly and legally incorporated.

If there has been any repeal of the special statutes which have been adverted to, it was not a repeal in express terms, but by implication merely. The rules and principles which guide the courts when the question for determination is whether one statute has been impliedly repealed by another were considered by this court in Hogan v. Guigon, judge, 29 Gratt. 705. It is there said, that the repeal of a statute by implication is not favored by the courts; for ordinarily where a repeal is intended by the legislature it is declared in express terms. The presumption is always against the intention to repeal where express terms are not used. The rule is stated by Chief Justice Marshall to be, that a repeal by implication ought not to be presumed unless from the repugnance of the provisions the inference be necessary and unavoidable; (Harford v. United States, 8 Cranch. 109); and by Judge Story, that it is not sufficient to establish that subsequent laws cover some or even all of the cases provided for by it; for they may be merely affirmative, or cumulative, or auxiliary; but there must be a positive repugnancy between the provisions of the new laws and those of the old. Wood v. United States, 16 Peters' R. 342, 363. It is laid down in McCoole v. Smith, 1 Black U. S. R. 459, 470, that to justify the presumption of intention to repeal one statute by another, the two statutes must be irreconcilable; and in the more recent case of Arthur v. Homer, 96 U. S. (6 Otto) 137, that to induce a repeal of a statute by the implication of inconsistency of a later statute, there must be such a positive repugnancy between the two statutes that they cannot stand together.

There may also be acts plainly intended to embrace and include the whole legislation on the subjects to which they refer, and to be substituted wholly for the former acts on the same subjects; and in such cases, the provisions of the former laws on the same subject, although not expressly embraced in the subsequent acts, are impliedly repealed. Fox's adm'rs v. Commonwealth, 16 Gratt. 1; United States v. Tynen, 11 Wall. U. S. R. 88.

The method of incorporation pursued by the Mutual building fund association of Lynchburg was first authorized by an act of the legislature, passed May 29, 1852. That act provided, among other things, that persons might associate and become an incorporated company, for the purpose of accumulating a fund to enable its respective members to purchase houses and lots, erect buildings, remove encumbrances from real estate, and for other purposes enumerated, by signing articles of association of a particular description, and causing the same, when verified in the mode prescribed, to be recorded in the court of the county or corporation in which the association should transact its business. See Acts of 1852, ch. 101.

On the 3d day of March, 1854, (Acts 1853-4, ch. 46,) an act was passed empowering the circuit and county courts, in their discretion, to grant charters for mining and manufacturing purposes. This was the first of a series of acts, extending down to the present time, investing the courts with jurisdiction to grant charters of incorporation.

On the 11th day of March, 1856, (Acts 1855-6, ch. 36,) an act was passed amending the act of March 3, 1854, so as to extend its provisions to hotel, cemetery, gas-light, water, springs, and telegraph companies, orphan asylums, hospitals, academies, library and building associations.

The acts of March 3, 1854, and March 11, 1856, were amended March 15, 1858, so as to forbid county courts to grant corporate powers, thus leaving the jurisdiction for that purpose exclusively in the circuit courts. Acts 1857-8, ch. 70.

These several acts, commencing with the act of March 3, 1854, were embodied by the compiler in the Code of 1860, ch. 65, § 4 et seq., and on the 29th of January, 1867, sections 4, 5, and 7 of chapter 65 (Code of 1860) were amended, and the provisions of section 4 extended so as to authorize the circuit courts to grant charters of incorporation " for the conduct of any enterprise or business which may be lawfully conducted by private individuals," & c. Acts 1866-7, ch. 129.

By an act approved March 30, 1871, (Acts 1870-71, ch. 277,) sections 4, 5, 6, 7, 8, 9, and 10 of chapter 65 of the Code of 1860, and all acts and parts of acts amendatory thereof were repealed, and other provisions substituted; but the main features of the former acts were preserved. The circuit courts were empowered, in their discretion, on proper certificates, to grant charters to " joint stock companies for the conduct of any enterprise or...