University of Utah v. Richards

• Decision Date: 16 November 1899
• Court: Utah Supreme Court
• Parties: UNIVERSITY OF UTAH, RESPONDENT v. MORGAN RICHARDS, STATE AUDITOR, APPELLANT

59 P. 96

20 Utah 457

UNIVERSITY OF UTAH, RESPONDENT v. MORGAN RICHARDS, STATE AUDITOR, APPELLANT

Supreme Court of Utah

November 16, 1899

Original application in this court for writ of mandate to compel the State Auditor to draw his warrant for $ 5,000 to be expended by plaintiff under Chapter 5 of the Laws of 1899.

Writ allowed.

Hon. A C. Bishop, Attorney General, for appellant.

This is an action in mandamus, brought to compel the State Auditor to issue a warrant for five thousand dollars to be expended by the plaintiff under the provisions of Chap. 5, of the Laws of 1899, the defendant having refused to draw a warrant for said amount, on the ground that the plaintiff did not comply with the provisions of Chap. 53, of the Laws of 1899.

The sole question involved is, what interpretation or construction is to be placed upon these two acts of the legislature.

That part of Chap. 5, material to this question, is contained in Sec. 7.

The refusal of the defendant to draw a warrant is based upon Chap. 53, which is amendatory of Sec. 2070 of the Revised Statutes.

It is a well recognized rule in the construction of statutes and a settled maxim of the common law, that all acts based upon the same subject in pari materi, must be construed together and made to stand, if capable of being reconciled, and especially is this true of statutes enacted at the same legislative session. McFarland v. State Bank, 4 Ark. 410; (S.C. 37 Am. Dec. 3761;) Wortheimer v. Basket, 99 N.C. 70.

But where they are in irreconcilable conflict with each other then the latter statute substitutes the former notwithstanding both were intended to take effect and go into operation at the same time. The latter must be regarded as the last expressed will of the legislature. Wright v. Tipton County, 82 Ind. 337; In re Yak Wah, 9 P. 139; Pierpont v. Crouch, 10 Cal. 315.

It must appear from the last act that it was intended to take the place of the former, or that the two acts are so inconsistent that force and effect cannot be given to both. Ex parte Smith, 40 Cal. 419; Estate of Wixom, 35 Cal. 320; People v. Burt, 43 Cal. 560; People v. Sargent, 44 Cal. 430; Northern P. R. R. v. Ellison, 29 P. 263; People v. Dobbins, 14 P. 860; In re Hickey Tree Road, 43 Pa. 139; Sutherland on Stat. Const., Secs. 217, 283, 286; Real Estate & Trust Co. v. Kragscow, 47 Neb. 592.

Plaintiff is contending for a special or exclusive privilege as compared with other state institutions. A statute will be construed most strongly against a claim of exclusive privilege thereunder.

U.S. Electric L. Co. v. Ross, (D. C.) 24 Washington Law Reports 775.

Messrs. Williams, Van Cott & Sutherland, and Messrs. Pierce, Critchlow & Barrette, for respondents.

A general act neither modifies nor repeals special legislation, to the details of which the legislature has previously given attention, even though dealing with the same subject matter, which sections 7 and 2070 do not. Sutherland Stat. Con., Sec. 157, 158.

In 109 U.S. 570-1, ex parte Crow Dog, it is said:

"Implied repeals are not favored. The implication must be necessary. There must be a positive repugnancy between the provisions of the new laws and those of the old." Wood v. The United States, 16 Pet. 342; Davies v. Fairbairn, 3 How. 636; United States v. Tynen, 11 Wall. 88; State v. Stoll, 17 Wall. 425.

In 23 Ency. Law 422, it is said: "A general law will not repeal an earlier especial act by mere implication."

See the great list of cases cited in note 3 to quotation.

Repeals by implication are not favored. If any part of Section 7 is repealed by Section 2070, it must be by implication, as there are no express words of repeal. Such repeals are not favored as it is well settled that in order to effect an implied repeal the inconsistency must be unavoidable. This is not so in the case at bar, because not only Section 7, but the whole act, refers to the drawing of money for a special purpose, while Section 2070 refers to biennial appropriations for expenses. Sutherland Stat. Con. Sec. 138; 109 U.S. 570, ex parte Crow Dog; 118 U.S. 393, U.S. v. Langston.

It is well settled that the legislature less intends that a later act shall repeal a previous one when passed at the same session. Suth. Stat. Con. 151 and 152.

Where there is no repeal clause in a general act, there is a presumption that the legislature did not intend to repeal a previous act, although on the same subject. Suth. Stat. Con. 147 and 148; McAfee v. Southern R. R. Co., 36 Miss. 669.

MINER, J. BARTCH, C. J. and BASKIN, J., concur.

OPINION

MINER, J.

This is an action brought to obtain a writ of mandamus against the State Auditor, requiring him to issue a warrant for $ 5,000, to be expended by the plaintiff, through its regents, under the provisions of Ch. 5, Sess. Laws 1899, the defendant having refused on application to draw a warrant for such sum on the ground that Ch. 53, Sess. Laws 1899, supersedes and is repugnant to Ch. 5, and that the plaintiff had not complied therewith. We are required to place a construction or interpretation on these two provisions of the statute.

The legislature of this state, at its session in 1899, enacted Ch. 5, p. 20, which, among other things, provides for the removal of the University of Utah and its establishment on the site granted by Congress. By the first section of the act the regents of the university are authorized and directed to expend $ 200,000, or so much thereof as may be necessary to plat the grounds, procure plans, erect necessary buildings, equip and furnish the same, and do all other acts and things necessary to establish and construct said university. Section 7 of this act reads, as follows:

"Appropriation. There is hereby appropriated one hundred thousand dollars, or so much thereof as may be necessary, to effectuate the purposes mentioned in section 1, of this act; not to exceed fifty thousand dollars thereof may be drawn by the regents of the university of Utah at such times as they may deem proper during or after the year 1899; and not to exceed fifty thousand dollars may be drawn by the regents of the university of Utah at such times as they may deem proper during or after the year 1900; and the state treasurer and the state auditor are hereby authorized and directed to issue and pay warrants for such one hundred thousand dollars as herein specified."

This act was approved and took effect on the 24th day of February, 1899.

Subsequently, at the same session, the legislature enacted ch. 53, p. 76, Sess. Laws, Utah 1899. The object of this act is expressed in the title being to amend section 2070 Rev. Stat. 1898, in relation to state institutions drawing their biennial appropriations, and reads as follows: "Be it enacted by the Legislature of the State of Utah; Sec. 1. That section 2070 of the Revised Statutes of Utah 1898, be amended to read as follows:

"Sec. 2070. Appropriations. When Available. How Drawn. That on the first day of each month, or as soon thereafter as the bills for the expenses for the previous month have been audited, the board of control of each state institution, or the proper committee thereof, duly authorized by the board for such purpose, shall make a requisition upon the state auditor for a warrant in sufficient amount to pay the bills so audited, and thereupon the state auditor shall draw his warrant against the appropriation made for such institution for the amount named in the requisition, in favor of the treasurer of the governing board of the institution, or in case of the state prison in favor of the warden thereof. To obtain such warrant the treasurer of the board or the warden must present to the state auditor a written authorization from the board."

This act took effect on its approval March 9, 1899.

The appellant contends that this last act repeals or is repugnant to that part of Sec. 7, Ch. 5, as provides that the regents may draw not to exceed $ 50,000, or such part thereof as may be necessary, during or after the year 1899, and not to exceed $ 50,000 during or after the year 1900, and therefore claims that so much of said sum found necessary, should be drawn under Ch. 53, and that requisition for the same should be made at the beginning of each month sufficient to pay bills audited for the previous months.

The law makers did not see fit to embrace in the latter any express words of repeal of the former act. If such former act is repealed, it must be by implication. If the acts are repugnant or are so irreconcilably in conflict with each other and cannot be harmonized together, in order to effectuate the purpose of their enactment, then it may be said the later act may by implication repeal the former. Repeals by implication, however, are not favored by the law. One act is not to be allowed to defeat another if by reasonable construction the two can be made to stand together. Particular provisions relating to a former subject must govern in relation to that subject as against general provisions in another part of the law which might otherwise be broad enough to include it.

Where a statute enumerates the persons and things to be affected by its provisions, there is an implied exclusion of others, and the natural inference follows that it is not intended to be general.

Irrigation Co. v. Canal Co's., 14 Utah 155, 46 P. 824. So, as said in Sutherland on Statutory Construction, 157, 8, "It is a principle that a general statute without negative words will not repeal by implication from their repugnancy the provisions of a former one which is special or local, unless there is something in the general law or in the course of legislation upon its subject matter that makes it manifest that the legislature contemplated and intended a repeal. When...