# Town of Red Rock v. Henby/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
United States Supreme Court
106 U.S. 596
Town of Red Rock v. Henby
The statute of March 5, 1870, is an affirmative act, and contains no express repeal of the act of March 6, 1868. The question is, therefore, whether the former act repeals the latter by implication. The leaning of the courts is against repeals by implication, (U.S. v. Tynen, 11 Wall. 88,) and if it be possible to reconcile two statutes, one will not be held to repeal the other. McCool v. Smith, 1 Black, 459. It was held by this court, in the case of Wood v. U.S. 16 Pet. 342, that a repeal by implication must be by 'necessary implication; for it is not sufficient to establish that subsequent laws cover some or even all the cases provided for by it, for they may be merely affirmative or cumulative or auxiliary.' In the case of U.S. v. Tynen, ubi supra, it was declared by Mr. Justice FIELD, speaking for the court, that 'it is when the later act plainly shows that it was intended as a substitute for the former act that it will operate as a repeal of that act.' So in the case of Henderson's Tobacco, 11 Wall. 652, this court said, Mr. Justice STRONG delivering its opinion, that 'when the powers and directions under the several acts are such as may well subsist together, an implication of repeal cannot well be allowed.' In the case of King v. Cornell, ante, 312, the chief justice, expressing the opinion of the court, on this point said:
'While repeals by implication are not favored, it is well settled that when two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions which plainly show that the last was intended as a substitute for the first, it will operate as a repeal.' See, also, Murdock v. Memphis, 20 Wall. 590.
The result of the authorities cited is that when an affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless the two acts are in irreconcilable conflict, or unless the later statute covers the whole ground occupied by the earlier and is clearly intended as a substitute for it, and the intention of the legislature to repeal must be clear and manifest.
Guided by this rule, we are to settle the question upon which the judges of the circuit court were divided in opinion. It must be conceded that while the act of 1868 requires only the vote of a majority of the legal voters of the town before the bonds authorized thereby could be lawfully issued, the act of 1870 requires a vote of a majority of the supervisors, as well as a vote of the majority of the legal voters, to warrant the issue of bonds under its authority. It is, therefore, clear that the conditions upon which the towns of Mower county were authorized to issue their bonds were different under the two acts. Nevertheless, we are of opinion that the later act was neither repugnant to nor was it intended as a substitute for the former. This, we think, will appear from the following considerations. The act of 1868 authorized the issue of bonds by the towns of five counties, namely, Fillmore, Mower, Freeborn, Faribault, Martin, and Jackson. The map of Minnesota discloses the fact that they form a part of the southern tier of the counties of the state, and, beginning at the Mississippi river, extend in a right line from east to wast in the order named in the act. It appears from the record that prior to the passage of the act of 1868 the Southern Minnesota Railroad Company was chartered and empowered to construct and use a railroad from the Mississippi river westward across the state of Minnesota to its western boundary. This fact makes it reasonably clear that the object of the act of 1868 was to authorize the towns of the counties named to issue their bonds in aid of the construction of that line of railroad. The act of 1870 authorizes the towns, etc., of the counties of Mower, Dodge, Goodhue, and Dakota to issue bonds to aid in the construction of any railroad running into or proposed to be built through either or all of said counties. The map shows that these counties, beginning with Mower, on the southern boundary of the state, extend in a line northwardly to the Mississippi river opposite St. Paul. It is, therefore, reasonably clear that the purpose of this law was to aid in the construction of a line of railroad running north and south through these counties. It is true that each of the acts authorizes the towns to issue bonds in aid of any railroad running into either of the counties named therein, but this fact is consistent with the general purpose of the act as above indicated.
We have, therefore, two acts,-one passed to authorize the towns in a certain group of counties to aid in the construction of one line of railroad, and the other to authorize the towns in another group of counties to aid in the construction of another line of road, and the county of Mower happens to be common to both groups. When we consider the different objects which it is reasonably clear the legislature had in view in the passage of these two acts, it is a fair construction to hold that it was not the intention of the legislature, by the passage of the later act, to repeal the older act, either totally or partially. It is not contended that the supposed repeal affected any of the counties named in the first act except the county of Mower. If the method of authorizing the issue of bonds in that act was an unsafe and vicious one, which the legislature intended to change, why did it not repeal the act as to other counties and apply to them also the restrictions contained in the later act? It would not be an unwarranted construction of the two acts to hold that bonds issued in aid of an east and west line of railroad passing through the counties named in the act of March 6, 1868, should be issued in conformity with that act, and that bonds issued in aid of a north and south line of railroad running through the counties named in the act of March 5, 1870, should be issued in conformity with the latter act. We think that the circumstance that the county of Mower happens to be in both groups of counties does not show a purpose on the part of the legislature to repeal the first act, so far as it affects that county.
The language of the act of 1868 might have been sufficient to authorize the towns in Mower county to issue bonds in aid of a north and south line of railroad, but it was necessary to pass an act to authorize the towns in the counties of Dodge, Goodhue, and Dakota to issue bonds in aid of such a road. In passing this act the county of Mower was included, doubtless, for the purpose of making clear and unquestionable the authority of towns in that county to issue bonds for the same purpose. We, therefore, find no repugnance between the statutes, nor do we find the later act to be a revision of the entire subject covered by the older act, nor to be intended as a substitute for it. There is, therefore, no repeal.
There is another consideration which is entitled, in our opinion, to some weight, and that is, that before the act of 1870 was passed the railroad company had made considerable progress in performing the conditions upon which the town of Red Rock had agreed to issue its bonds. It had located its line of road according to the proposition made by the town, and had for more than two months been engaged in constructing its road upon that line. It is true, it was under no binding contract with the town to go on and complete the line, but it had unmistakably manifested its purpose to do so, and had expended and was expending large sums of money in an effort to comply with the conditions upon which the town had agreed to issue its bonds. If, under these circumstances, the legislature had withdrawn the authority of the town to issue its bonds, or had imposed new conditions upon the issue, it would have been an act of bad faith. If possible, we should give such a construction to the act of the legislature as would relieve the state from such an imputation. Broughton v. Pensacola, 93 U.S. 266.
The amendatory act of March 2, 1871, with its repealing clause, can have no effect on this controversy. That act was passed more than six months after the railroad had fully complied with all the conditions upon which the town of Red Rock had agreed to issue its bonds. It was too late then for the legislature to interfere. The railroad company was entitled to the bonds, and any attempt by the legislature to forbid their issue would have been unconstitutional and void.
The burden is on the plaintiff in error to make it appear that the act of March, 1868, which authorized the issue of the bonds, the coupons of which are in suit, was repealed by the subsequent act of 1870. In view of the considerations which we have stated, we are of opinion that the repeal has not been satisfactorily shown. On the contrary, we think it reasonably clear that no repeal of the former act was intended by the passage of the act of 1870.
As this view coincides with the opinion of the presiding judge in the circuit court, upon which the judgment of that court was based, it follows that the judgment should be affirmed; and it is so ordered.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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