Wood River times. [volume] (Hailey, Idaho) 1882-1915, 1882-12-18

contestant that because the old statute
allowed more latitude in contests, that |
it was not abrogated by the new; but
section IA of the Code above cited |
states that it matters not whether the |
new law is consistent with the old or
not, the old statute is abrogated un-
less it is expressly continued i'll force
by the provisions Of the Code. There
is no provision of the Code continu-
ing this old statute in force; there
fore it was argued that the old statute
was repealed and abrogated.
JUDGE DlLLEY's DECISION.
The Judge took the case under ad-
visement, and this morning rendered
the following decision:
In this case the contestee herein
made motion to quash the proceed
ings on the ground that the court has
no jurisdiction Of the subject matter
OF the contest for the reason that the
statute under which this proceeding is
commenced has been abrogated by the
enactment Of the Code OF Civil Pro-
cedure.
1t is conceded on the part of the
contestant that this proceeding is
brought under sections 50 and 80 OF
the Election Law, Revised Laws of
Idaho, 1910, page 693. The con-
testees claim that these sections were
abrogated by the enactment of Sec
tons 75s ct seq. of the Code Of Civil
Procedure relating to contesting GER
tain elections--it being conceded that
this proceeding is not brought under
this statute, but under the sections Of
the former statute above cited. The
only question necessary to decide upon
this motion is as to whether the former
statute is repealed or abrogated by the
enactment of the latter as a part of the
Code OF Civil Procedure.
1t is claimed on the part of the con-
testees that Section IA Of the Code is
decisive Of the question as to the re-
peal or abrogation of the former Stat
ute, and in this view of the case l must
concur. The section last referred to
reads as follows:
"No statute, law or rule is continued
in force because it is consistent witt,
the provisions Of this code on the same
subject; but in all cases provided for by
this code, all statutes, laws and rules
heretofore in force in this Territory
whether consistent or not with the pro.
visions of this code, unless expressly
continued in force by it, are repealed
and abrogated. This repeal or abro
CATION does no. revive any former Law
heretofore repealed, nor does it affec
any right already existing or accrued
or any action or proceeding alread
taken, except as in this code provided
nor does it affect any private statut
not expressly repealed
It is claimed on the part of the con
testant that the old statute provide
for contest on different and disting
, grounds from those mentioned in tn
Code Of Civil Procedure, and there
: fore that they are two distinct RENE
dies, based on different grounds I
, contest; but IN my judgment thi
claim is only another way of stating
| that the former statute is consisten
with the latter, and that either rem
edy may be chosen when the fact
, warrant it.
The section last cited expressl
) provides that the prior statute is re
pealed and abrogated, and not con
continued in force because it is consis
tent with the provisions of the Code
and all laws upon the same subjec
heretofore in force, whether consisten
I or not with the Code, unless ex
pressly continued in force by it, ar,
repealed and abrogated.
There is no claim that there is an,
provision of the Code expressly con
tinuing in force these provisions of tn,
old statute under which the proceed
ing is commenced.
| am therefore of the opinion tina
J the sections referred to (Sections 81
and 80 of the Election Laws), pro
viding for contests, are repealed and
abrogated by the provisions of thu
Code, and that the Court has no juris
diction to try contest brought under
these sections, and therefore decide
that the proceedings must be dis
missed. S. b. DILLEY,
Probate Judge.
Kingsbury & McGowan. attorneys
for contestant.
Texas Angel and Frank Ganahl
attorneys for contestee, L. Leadley.
Haley, |. T., Dec. Is, 1882.