Northern P. R. Co. v. Ellison

• Decision Date: 28 January 1892
• Citation: 29 P. 263,3 Wash. 225
• Parties: NORTHERN PAC. R. CO. v. ELLISON.
• Court: Washington Supreme Court

29 P. 263

3 Wash. 225

NORTHERN PAC. R. CO. v. ELLISON.

Supreme Court of Washington

January 28, 1892

On rehearing.

ANDERS, C.J.

The learned counsel for the respondent, in his petition for a rehearing in this case, calls our attention to the fact that in the opinion heretofore filed in the case of Graetz v McKenzie, (Wash.) 28 P. 331, upon the authority of which this case was decided, we omitted to make any reference to the act to regulate the practice and procedure in civil actions, approved November 8, 1877, and insists that, if that act had been considered, the rule of statutory construction laid down in Graetz v. McKenzie, and followed in this case would have conducted the court to a different conclusion from that announced in our former opinion. But we are unable to adopt the view of counsel as to the effect of that act. It was simply a re-enactment of the practice act of 1873, as amended by the act of November 12, 1875. That part of section 8 of the Code which we held repealed section 717 was brought forward from the act of 1875, where it originally appeared, and re-enacted in the act of 1877 in the identical language of the former, as section 8 of the latter act. Laws 1877, p. 4. And section 656 of the act of November 13, 1873, is designated as section 721 in the re-enactment and appears in the Code of 1881 as section 717. These sections of the Laws of 1873 and of 1875, embodied in the act of 1877, cannot be treated as new enactments, and construed on the theory that they had no prior existence, but must be considered as continuations of former laws. See Suth. St Const. § 161. And, had we been called upon to construe these statutes as they stood in the act of 1877 without reference to the Code, we would have been obliged to refer to the original enactments in order to ascertain the latest expression of the legislative will, notwithstanding the act itself purported to repeal all laws on the same subject. Such a repealing clause must be held to affect only those laws which are not in the same language as the repealing statute. We can readily see how a law can be continued in force by re-enacting it, but we are unable to perceive how it can be repealed by that means. It may thus be transferred from one statute to another, but it is still the same law, and no rights can be affected merely by the change of position. We therefore see nothing in the statute referred to by counsel to cause us to...