State ex rel. Lum v. Archibald
| Decision Date | 28 May 1890 |
| Citation | 45 N.W. 606,43 Minn. 328 |
| Parties | State of Minnesota, ex rel. Leon E. Lum, v. David Archibald |
| Court | Minnesota Supreme Court |
Appeal by the respondent below from an order of the district court for Crow Wing county, Holland, J., presiding, directing the issuance of a peremptory writ of mandamus.
Order reversed.
G. S Fernald and Flannery & Cooke, for appellant.
Gordon E. Cole and Leon E. Lum, for respondent (relator.)
This is an appeal from an order directing that a peremptory writ of mandamus issue, addressed to the defendant, an assessor, requiring and compelling him, as such, to proceed with the assessment of real and personal property in certain territory alleged to be a part of Crow Wing county. The controversy arises by reason of the passage of an act entitled "An act relating to the change of county lines of unorganized counties, and annexation of unorganized territory to organized counties," which was approved on February 25, 1887, now known as chapter 119 Gen. Laws of that year; and the passage of another act approved on February 18th of the same year, entitled "An act to detach certain territory from the unorganized county of Cass, and attach the same to Crow Wing county." It is now found as chapter 118, Laws 1887. The appellant contends that the act last mentioned (chapter 118) was repealed upon the passage and approval of the other act, (chapter 119,) and this we regard as the only question needing special consideration. By the several sections of chapter 118, a certain portion of the unorganized county of Cass was detached therefrom, and, subject to the approval of the legal voters of the organized county of Crow Wing, attached to the latter. The proposition was to be submitted to the electors of the organized county at the next general election, and, if approved by a majority of those voting thereon, the governor of the state was required to make proclamation of the fact. There was also another provision of the act in reference to taxes previously levied on property affected by the change, remaining uncollected at the time of its approval by the legal voters.
There are three sections in the law approved February 25th: The first, that no change shall be made in the lines of an unorganized county, and no part thereof shall be annexed to an organized county, "without first submitting the proposition for such change of line or annexation to the electors of the county or counties to be affected thereby," and an adoption of the proposition by a majority of the electors of each county voting thereon; the second, "that all acts or parts of acts inconsistent with this act are hereby repealed;" and the third, (as was also provided in chapter 118,) that the same should take effect from and after its passage. In accordance with the provisions of chapter 118, the question of annexing the territory therein described to Crow Wing county was duly submitted to the legal voters thereof at a general election held in November, 1888, at which time a majority voted in favor of annexation. The electors of Cass county did not vote upon the proposition. The result in Crow Wing was proclaimed by the governor prior to April 2, 1889, and on that day defendant was duly appointed assessor for a portion of Crow Wing county, including, if chapter 118 was unrepealed, the territory in dispute. Thereafter defendant refused to proceed with the assessment of personal property within this territory, solely on the ground heretofore indicated, that the earlier act (chapter 118) was repealed by implication on the passage of the later, (chapter 119.)
1. Starting out with the proposition, which has become axiomatic, that repeals by implication are not favored, we may safely say, as a reasonable proposition, that a legislature does not intend to effect so important a measure as the repeal of a law, without expressing its intent so to do. Such an interpretation, therefore, should not be adopted unless it be inevitable, and any reasonable construction of the later act which offers an escape from it is more likely to be in consonance with the real intention. It is a rule well founded in reason, as well as in authority, that to give an act not clearly intended as a substitute for another the effect of repealing it, the implication of an intent to repeal must be disclosed by a repugnancy between its provisions and those of the earlier law, so positive as to be irreconcilable by any fair, strict, or liberal construction thereof, which would, without destroying its manifest intent and meaning, find for it a reasonable field of operation, preserving at the same time the force of the earlier law, and construing both together in harmony with the whole course of legislation upon the subject. To justify a court in holding that an act is repealed by one subsequently passed, it must appear that the later provision is certainly and clearly in hostility to the former. If by any reasonable construction the two statutes can stand together, they must so stand. If harmony is impossible, and it is only in that event, the earlier enactment is repealed. Wood v. U. S., 16 Pet. 342; State v. Stoll, 84 U.S. 425, 17 Wall. 425, 21 L.Ed. 650; Chew Heong v. U. S., 112 U.S. 536, (5 S.Ct. 255, 28 L.Ed. 770;) People v. Board Suprs. St. Lawrence Co., 103 N.Y. 541, (9 N.E. 311;) Rounds v. Waymart Borough, 81 Pa. 395; Covington v. City of East St. Louis, 78 Ill. 548; Iverson v. State, 52 Ala. 170; Pratt v. Atlantic & St. Lawrence R. Co., 42 Me. 579; Sedg. St. & Const. Law, 105; Smith, St. Law, 879. Of course, repeal by implication can be effected by inconsistent enactments at the same session of the legislature; but it has been said that statutes enacted at the same session are to be construed to a certain extent as one act, and therefore in such a case there is a much stronger presumption against an intention to repeal which is not expressed than in case of statutes passed at different sessions; and in such cases there should be such an exposition as will give effect to what appears to be the main intent of the lawmaker. Peyton v. Moseley, 3 T. B. Mon. 77; Eckloff v. District of Columbia, 4 Mackey 572; Board of Commrs. of La Grange Co. v. Cutler, 6 Ind. 354.
In the cases first above referred to, and in the large number of authorities therein cited, may be found instances in which the general rules in respect to repeal by implication have been applied, and it only remains for us to...
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