Territory v. Digneo.

• Decision Date: 25 August 1909
• Citation: 103 P. 975,15 N.M. 157
• Parties: TERRITORYv.DIGNEO.
• Court: New Mexico Supreme Court

15 N.M. 157

103 P. 975

TERRITORY

v.DIGNEO.

Supreme Court of the Territory of New Mexico.

Aug. 25, 1909.

Syllabus by the Court.

Repeals of a statute by implication are not favored, but, if two statutes are in part positively repugnant to each other, the older statute is repealed by implication to the extent of the repugnancy.

Section 1235, Comp. Laws 1897, making it illegal to sell or give intoxicating liquors to minors, is still in force as to minors between the ages of 18 and 21 years, and to that extent is not repealed by implication by section 1270, Comp. Laws 1897, and section 1, c. 3, p. 18, Laws 1901, as those laws only legislate as to minors under the age of 18 years, and not as to minors between the ages of 18 and 21 years.

Appeal from District Court, Santa Fé County; before Justice John R. McFie.

Joseph Digneo was convicted of selling intoxicating liquors to a minor, and he appeals. Affirmed.

As implied repeals are not favored, as statute is impliedly repealed only so far as inconsistent with a later act.

E. P. Davies and A. B. Renehan, for appellant. J. M. Hervey, for the Territory.

MILLS, C. J.

The single point involved in this case is whether or not it is unlawful under the laws of this territory to sell or give intoxicating liquors to minors over the age of 18 years without the consent of the parent or guardian of such minor.

Three laws have been passed by the territorial Legislature in regard to the selling or giving of intoxicating liquors to minors, to wit: Section 1235, Comp. Laws 1897, passed February 15, 1854, provides: “If any person, by himself, or by his agent, shall sell or give any intoxicating liquor to any minor, without the consent of his parent or guardian, *** he shall be fined in a sum not less than $5.00 nor more than $50.00. ***” Section 1270, Comp. Laws 1897, passed April 1, 1876, provides: “Every person who shall sell, give or deliver to any minor under the age of eighteen years (such person not being the father, mother or guardian of such minor), any spirituous or fermented liquor *** shall be punished by a fine not more than fifty nor less than five dollars, or by imprisonment not exceeding sixty days, at the discretion of the court.” Section 1, c. 3, p. 18, Laws 1901, provides: “It shall be unlawful for any person to sell or give to any minor under the age of eighteen years, or to any pupil of any school or educational institution within the territory, any intoxicating liquor or any cigars, cigarettes, or tobacco in any form, except upon the written consent of the parent of such minor or pupil.” The contention of the appellant is that section 1270, Comp. Laws 1897, and section 1, c. 3, p. 18, Laws 1901, repeal by implication section 1235, Comp. Laws 1897, not because they contain direct words of repeal, but because they are repugnant to it; while the contention of the appellee is that the several sections of our laws are not repugnant to each other, and that, therefore, there is no implied repeal of the earlier statute under which the appellant admits on page 3 of his brief the conviction could be sustained. It is the rule that the repeal of any law by implication is not favored by the courts, but that it nevertheless results if the latter enactment is repugnant to and absolutely irreconcilable with the provisions of the earlier law. In Frost v. Wenie, 157 U. S. 46, 15 Sup. Ct. 532, 39 L. Ed. 614 (which case is quoted approvingly in U. S. v. Healey, 160 U. S. 147, 16 Sup. Ct. 247, 40 L. Ed. 369), the court says: “It is well settled that repeals by implication are not to be favored. And where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court-no purpose to repeal being clearly expressed or indicated-is, if possible, to give effect to both. In other words, it must not be supposed that the Legislature intended by a statute to repeal a prior one on the same subject, unless the last statute is so broad in its terms and so clear and explicit in its words as to show that it was intended to cover the whole subject, and therefore to displace the prior statute.” An eminent authority on statutory construction says: “If the two statutes can be read together without contradiction, or repugnancy, or absurdity, or unreasonableness, they should be read together, and both will have effect. It is not enough to justify the inference to repeal that the latter law is different. It must be contrary to the...