Somers v. Commonwealth

• Decision Date: 30 March 1899
• Court: Virginia Supreme Court
• Parties: SOMERS. v. COMMONWEALTH.

33 S.E. 381

97 Va. 759

SOMERS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 30, 1899.

STATUTES—PENAL PROVISIONS—REPEAL BY IMPLICATION.

Acts 1897-98, p. 745. refers directly to Act March 5, 1888, and amends it and Code, § 2148, "so as to read as follows, "—i. e. in the words of the amendatory act. The 1888 act contained a provision against dredging on private oyster ground, even by the owner, and prescribed a penalty. The 1898 act simply prohibits dredging, without prescribing a penalty or declaring it a criminal offense. Held, that the criminality of the offense is repealed by implication.

Error to Accomac county court

One Somers was convicted of catching oysters with dredges on a private oyster ground, and he brings error. Reversed.

J. N. Stubbs, for plaintiff in error.

The Attorney General, for the Commonwealth.

RIELY, J. The question to be decided in this case is whether it is a criminal offense to take or catch oysters with dredges on private oyster ground.

The act of April 28, 1887 (Acts Ex. Sess. 1887, p. 118), and the act of March 5, 1888 (Acts 1887-88, p. 486), amendatory thereof, among other things which they prohibit with respect to oysters, contain a provision against dredging on private oyster ground, even by the owner of the planted oysters, and prescribe a penalty of not less than $10 nor more than $50 for each violation of the provision.

Neither of the above acts is affected by the adoption of the Code of 1887, and the repeal of all acts and parts of acts of a general nature in force at the time of its adoption. Code, §§ 4202, 4203.

The things which are prohibited by the said acts, with the exception of dredging, are prohibited by section 2148 of the Code, which, like the said acts, is founded upon the original act of March 4, 1884 (Acts 1883-84, p. 324), and the amendments made thereof from time to time.

By act of March 3, 1898 (Acts 1897-98, p. 745), the act of March 5, 1888, and section 2148, were both amended and re-enacted. While the provision against dredging is retained in the amendatory act, all punishment for its violation is omitted. The penalty prescribed for doing the other things prohibited plainly does not apply to dredging. The act simply prohibits dredging, without prescribing any punishment for its commission or declaring it to be a criminal offense. It Is, therefore, contended that the provision of the act of March 5, 1888, making dredging on private oyster ground a misdemeanor, is repealed by the act of March 3, 3898. It does not do so in express terms, and, if the provision is repealed, it is by implication.

The repeal of a statute by implication is not favored by the courts. The presumption is always against the intention to repeal, where express terms are not used, or the later statute does not amend the former. To justify the presumption of an intention to repeal one statute by another, the two statutes must be irreconcilable. If, by a fair and reasonable construction, they can be reconciled, both must stand. If, however, they are inconsistent and irreconcilable, then an intention to repeal is presumed, but only to the extent of the repugnance. Fulkerson v. Treasurer, 95 Va. 1, 27 S....