Waller v. Everett

• Decision Date: 28 February 1873
• Citation: 52 Mo. 57
• Parties: FOUNTAIN WALLER, Plaintiff in Error, v. A. B. EVERETT, et al., Defendants in Error.
• Court: Missouri Supreme Court

52 Mo. 57

FOUNTAIN WALLER, Plaintiff in Error,

v.A. B. EVERETT, et al., Defendants in Error.

Supreme Court of Missouri.

February Term, 1873.

Error to Clay County Circuit Court.

Samuel Hardwick, for Plaintiff in Error.

While repugnant statutes necessarily supplant previous ones, they must be clearly repugnant; for unless the legislative intent is expressed in terms, it will not be assumed if any other construction can be given to the subsequent act. (State ex rel., Maguire vs. Draper, 47 Mo., 29, 33; State, ex rel. Vastine vs. McDonald, 38 Mo., 529.)

Repeals by implication are not favored by the law and are not operative, unless “plainly repugnant,” so that “the two cannot stand together.” (Bowen vs. Lease, 5 Hill, 221; McCartee vs. The Orphan Asylum Society, 9 Cowen, 437; 2 Pick., 176; 13 Pick., 348; 20 Pick., 410; 24 Pick., 497; Snell vs. The Bridgewater Cotton Gin Manufacturing Co., 24 Pick., 296; Brown vs. City of Lowell, 8 Met., 172; Tracy vs. Goodwin, et al., 5 Allen, 409.)

D. C. Allen, for Defendants in Error.

In the absence of any constitutional prohibition, the power to pass laws repealing by implication is undoubted, and statutes clearly repugnant to previous ones necessarily supplant them. (Potter's Dw., p. 113, n. 9; Id., p. 154 and n. 4; State, ex rel., Maguire vs. Draper, 47 Mo., 29.)

The constitution expressly repeals all laws which were inconsistent with it. (Constitution, Art. 2, Sec. 3, 1 W. S., 61.)

Sections 5 and 6 of the Charter of Sugar Tree Grove Academy are clearly repugnant to the constitution of 1865, and legislation enacted since then.

EWING, Judge, delivered the opinion of the court.

A writ of certiorari was issued to the defendants, Justices of the County Court of Clay County, upon the petition of plaintiff alleging that he had been erroneously assessed for School purposes. Upon the return being made to the writ, a motion to quash it was sustained by the Circuit Court, and plaintiff excepted and brings the cause to this court by writ of error.

Plaintiff is a stockholder in an Academy known as the Sugar Tree Grove Academy, incorporated by an Act of the General Assembly, approved January 15, 1855. This act constituted the stockholders in said Academy an organized school district, with the same rights, privileges and immunities, and subject to the same liabilities as to accounting for funds drawn from the County Treasury, as other trustees of school districts. It was therein further provided that upon the application of any stockholder of said Academy to the trustees of his original district, they should pay him his due proportion of all school funds according to the number of scholars listed to said applicant in the reports made to the County School Commissioner for the year 1854; and that each stockholder should be free and exempt from tax for school purposes in his original district from and after the passage of the act.

For the defendants it is maintained that sections 5 and 6 of the charter, the substance of which is given above, are repealed by the act of 1868, and this is the only question for determination. The plaintiff claims that no part of the act of 1855 above referred to, is repealed by any subsequent act, and that the school district thereby established, remains an independent school organization, subject only to the law creating it. It is not pretended that there is any express repeal of the sections 5 and 6 of the charter of the Academy; but it is urged that they are inconsistent with the constitution subsequently adopted, and the laws passed pursuant thereto relating to a system of public instruction, and especially the act of 1868.

Gratuitous instruction and taxation as the means of sustaining it are the leading...