Wilson v. Head
| Decision Date | 07 January 1904 |
| Parties | WILSON v. HEAD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
I. R. Clark, for plaintiff.
Solomon Lincoln and Ropes, Gray & Gorham, for defendants.
The plaintiff seeks to recover, under St. 1890, p. 479, c. 437 for money paid for the purchase of stocks on margin. In the opening of his case at the trial he stated and offered to prove facts which would entitle him to a verdict under that statute, were it not for the enactment of the amendatory act of 1901, p. 391, c. 459. The question before us is, what is the effect of the amendments contained in the later statute? The first section of St. 1901 is as follows: 'Section 2 of chapter 437 of the acts of the year 1890 is hereby amended by striking out the whole of said section, and substituting the following,' etc. The difference between the original section 2 and the section as amended is that the latter allows a recovery of payments for securities or commodities contracted for on margin only when the contracting party has an affirmative intention 'that there shall be no actual purchase or sale,' while the former allows such a recovery not only when there is such an affirmative intention, but also when there is a mere negative state of mind in regard to the subject; that is when he had 'at the time of the contract, no intention to perform the same by the actual receipt or delivery of the securities or commodities and payment of the price.' There is also a proviso in the amended section limiting the recovery to cases when no actual purchase or sale of the commodities or securities, and no valid contract therefor has been made in accordance with the terms of the contract or employment. This is simply a limitation of the right of recovery given in the original statute. The first and third sections of the original act are retained without change. The fourth section is amended by striking it out, and substituting a new one in the same way as the amendment is made to the second. This fourth section relates to what shall constitute prima facie evidence in favor of the plaintiff, and the new one is the same as the old, except as it is changed to adapt it to the change in the second section. Except in the amendments to these two sections, there is no reference to the former statute, and it is left in full course. The question is whether these changes in two sections of the act have repealed the whole act, or any part of it, and, if a part, what part? It is plain that the Legislature intended to amend the original act, and not to repeal it. The form of the amendmants has no significance as tending to show a repeal. The substance of the provision in regard to each amendmant is that the language of the section shall be changed so as to read as follows, with the words of the new section following. The fair construction of the new statute is that the original statute shall remain in force, except as it is changed by the amendmants. There is no hint or suggestion of a repeal of the statute as a whole. Those parts of the original statute which are inconsistent with the amended statute, and those only, are repealed by implication. Com. v. Kimball, 21 Pick. 373, 376; Wright v. Oakley, 5 Metc. 400-406; United Hebrew Benevolent Ass'n v. Benshimol, 130 Mass. 325; Steamship Co. v. Joliffe, 2 Wall. 450-459, 17 L.Ed. 805; Bear Lake Co. v. Garland, 164 U.S. 1-12, 17 S.Ct. 7, 41 L.Ed. 327; Ely v. Holton, 15 N.Y. 595-598; Reid v. Supervisors, 128 N.Y. 364-373, 28 N.E. 367; Dashiell v. Mayor, 45 Md. 615-622. The original statute gave a right of recovery in certain cases. The effect of the amendmant is to limit this right in two particulars, and thereby to take away the right in certain cases included in the former statute. Every case in which there can be a recovery under the amended statute is included in the original statute, and recovery in it could be had as well without the amendments as with them. The effect of the amendmants is simply to show that, of the cases in which there is a right of recovery under the original act, those in which there is only a negative lack of intention as to performance of the contract, as distinguished from an affirmative intention that there shall be no purchase or sale, shall no longer give a right of recovery, and that those in which there is an actual purchase or sale of the securities or commodities, or a valid contract therefor, shall no longer give such a right. As to all other cases included in the original act, the law remains unchanged. It is necessary to consider the effect of the amendments upon cases which arose prior to the enactment of St. 1901, and which are included in the original statute, but not included in the amended statute. Did the statute create rights which vested before the amendments were in force, so that the Legislature could not constitutionally take them away? These rights were purely statutory--to recover money paid under a kind of gambling contract, under which there can be no recovery at common law. Wall v. Metropolitan Exchange, 168 Mass. 282-284, 46 N.E. 1062. As was said in Corey v. Griffin, 181 Mass. 229-232, 63 N.E. 420, 421, the statute was ...
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