State v. District Court of Ninth Judicial Dist., Gallatin County
| Decision Date | 06 November 1919 |
| Docket Number | 4465. |
| Citation | 185 P. 157,56 Mont. 464 |
| Parties | STATE ex rel. ESGAR, Sheriff, v. DISTRICT COURT OF NINTH JUDICIAL DIST., GALLATIN COUNTY, et al. |
| Court | Montana Supreme Court |
Petition by the State, on the relation of Chas. C. Esgar, Sheriff, for writ of supervisory control against the District Court of the Ninth Judicial District in and for the County of Gallatin and Ben B. Law, Judge thereof. Motion to quash the writ overruled, and order for a release from custody, sought to be reviewed, annulled.
S. C Ford and Frank Woody, both of Helena, for relator.
W. S Hartman, of Bozeman, and Wm. Meyer, of Butte, for respondents.
Richmond Gex was charged before a justice of the peace of township No 1 of Gallatin county, on the 8th day of August, 1919, with a violation of section 8576 of the Revised Codes, in having promoted a boxing match in defiance of its provisions. A trial was had upon that date in the justice's court, judgment of conviction rendered and entered, and a fine imposed upon the defendant therein in the sum of $50. Upon his refusal to pay the fine, he was committed by said justice to the county jail for the period of 25 days, or until the payment of such fine. In obedience to the direction contained in the commitment, the relator herein took and held Gex in custody until the 9th day of August, when his release was ordered upon a writ of habeas corpus by the district court in and for Gallatin county. On the date last named the relator made return and answer to the writ. To this return and answer the respondent herein filed a general demurrer, which, upon a hearing, the court sustained, upon the ground that section 8576 of the Revised Codes had been repealed by chapter 97, Acts of the Thirteenth Legislative Assembly, commonly known as the Kiley Law. This act was passed by the Legislative Assembly and approved March 14, 1913. Some months later it was, by petition under the referendum provision of article 5, section 1, of the Constitution, referred to the people for their approval or rejection, and, at the general election held on November 3, 1914, was by adverse vote of the people rejected.
The foregoing is a summary of the material matters set forth in the petition and application of the Attorney General for the issuance by this court of a writ of supervisory control directed to the district court of the Ninth judicial district, in and for Gallatin county, and to the judge thereof, commanding the annulment of the order discharging Richmond Gex from the county jail and from the custody of the relator. To the order by this court to show cause, a motion to quash has been filed, and the dismissal of this proceeding is asked by respondents upon the ground that the petition herein does not state facts sufficient to warrant the issuance of the order to show cause or to require them to answer thereto.
Section 8576 denounces boxing, wrestling, or slugging matches, and declares all promoters or participants therein guilty of a misdemeanor. The Kiley Law created a commission, confided to it "sole direction, management, and control *** over all boxing and sparring matches and exhibitions to be *** held or given within the state." That act prescribed punishment for its violation, nullified all city and town ordinances governing boxing and sparring, and repealed all acts and parts of acts in conflict therewith.
The Attorney General, however, insists that section 8576 was not repealed by the passage and approval of the Kiley Law, but that both were at the same time in full force and effect, and so continued to be until the rejection of the later act by the people at the general election held in 1914, and that section 8576 continued to be and still is in full force and effect. The respondents' answer to this is that the provisions of the Kiley Law (chapter 97) and of section 8576 are wholly inconsistent and repugnant; that the later act, when signed by the Governor, went into immediate effect, entirely displaced section 8576, and continued in force until the proclamation of the adverse vote at the referendum election held in November, 1914; that the Kiley Law, by its terms, nullified the words in section 8576 condemnatory of boxing, wrestling, and slugging matches, and therefore effected its repeal in toto. The fallacy of this contention is plain upon the face of both statutes.
By the Kiley Law it was merely sought to render boxing contests less offensive to the sensibilities of citizens opposed to prize ring contests, and it in no sense conflicted with the design apparent in section 8576 to prohibit boxing contests and "wrestling and slugging matches." It did attempt to dress boxing with official sanction by empowering a commission to supervise the actions of all persons promoting boxing matches, to require contestants to submit to physical examination, to prescribe the kind of gloves to be worn, and to impose restrictions designed to remove the obnoxious influences frequently attending such affairs; but it left untouched and unaffected the provisions of section 8576 prohibiting wrestling and slugging matches, thereby precluding the inference that it was intended to permit wrestling and slugging matches in any form. To hold otherwise would be to give countenance to repeals by implication.
The reason and philosophy of the general rule against the abrogation of a former statute are that the repeal of any of the provisions of a law is not to be presumed unless irreconcilably repugnant, or the latter revises the whole subject-matter of the former. This has been the undeviating opinion of this court from the first to the fifty-first volume of the Montana Reports, as expressed in the following cases: United States v. 196 Buffalo Robes, 1 Mont. 489; Jobb v. Meagher County, 20 Mont. 424, 51 P. 1034; Penwell v. County Commissioners, 23 Mont. 351, 59 P. 167; State ex rel. Hay v. Hindson, 40 Mont. 353, 106 P. 362; State ex rel. Wynne v. Quinn, 40 Mont. 472, 107 P. 506; State ex rel. Eagye v. Bawden, 51 Mont. 357, 152 P. 761. See, also, Breitung v. Lindauer, 37 Mich. 217; Longlois v. Longlois, 48 Ind. 60; State v. Taylor, 2 McCord (S. C.) 483; State v. White, 49 La. Ann. 127, 21 So. 141.
It is further firmly settled, not only by repeated decisions of this court, as well as those of courts of the highest character throughout the country, but also by the text-writers upon the subject, that-
United States v. 196 Buffalo Robes, supra; State ex rel. Eagye v. Bawden, supra; Diver v. Keokuk, 126 Iowa, 691, 102 N.W. 542, 3 Ann. Cas. 669; Chicago, etc., Ry. Co. v. McElroy, 92 Ark. 600, 123 S.W. 771; Blackwell v. State, 45 Ark. 90; 36 Cyc. 1973, and cases there cited; Sutherland on Statutory Construction, § 152; Lewis' Sutherland on Stat. Construction, §§ 247, 355.
The same rule applies with reference to a statute partly unconstitutional. If it is possible to eliminate the invalid portion, without destroying the entire statute, it must be done. Hamilton v. Board, 54 Mont. 301, 169 P. 729.
Every piece of legislation is enacted for the purpose of making a change in the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment. A partial repeal of a statute may be accomplished by a partial repugnancy to another statute-the rule being that the repeal extends only so far as the repugnancy extends, and leaves all the remainder in full force. Quinette v. St. Louis, 76 Mo. 402; County Court v. Griswold, 58 Mo. 199; Manker v. Faulhaber, 94 Mo. 430, 6 S.W. 372; Van Rensselaer v. Snyder, 9 Barb. (N. Y.) 308; Harrington v. Trustees, 10 Wend. (N. Y.) 550; Dean v. Blise, 5 Beav. 582; Bowen v. Lease, 5 Hill (N. Y.) 225; Williams v. Potter, 2 Barb. (N. Y.) 316.
In Stadler v. City of Helena, 46 Mont. 139, 127 P. 458, the following rule of construction, peculiarly applicable to the question now under consideration, was quoted with approval by Mr. Justice Holloway:
"Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together, and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but, to the extent of any necessary repugnancy between them, the special will prevail over the general statute." 30 Cyc. 1151.
Giving full force and effect to every word of the Kiley Law, it is indisputable that the only feature of section 8576 sought to be affected by its provisions was that prohibiting boxing in any form, except with soft gloves in a gymnasium, and that purported neither to repeal the prohibitory clause nor change the penalty prescribed for its violation, but only sought to deal with boxing in a "more minute and definite way," by making it a misdemeanor when not conducted in accordance with the rules and regulations prescribed by it. This was in no sense a repeal of any part of that section. 30 Cyc. 1070, 1151.
Counsel, however, strenuously insist that, notwithstanding the rejection of the Kiley Law by the referendum vote, section 8576 of the Revised Codes was not thereby resurrected, but is still a dead letter upon the statute book. That was the lower court's holding, and that by the force of section 122 of the Revised Codes, providing:
"No act or part of an act, repealed by another act of the Legislative Assembly, is revived by the repeal of the...
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