, 1892-01-05

TWO SECTIONS OF THE CODE ARE
IN CONFLICT.

AN OU4NG A4OAe
An Action to Recover Damages AL.
legged 20 Have Been Caused by
Negifgence-Th Judg ment of the
Lower Court is Reversed.
concluded from Saturdays editionl
The learned counsel for respondents in
slst that there is but one rule Of construc-
ton that can be adopted, and that is, that
section III, must be taken as the latest ex-
preston of the legislative will, and must
therefore prevail. 1t is true that it is a
general rule Of construction that the last
expression of the legislature is to
be deemed the law, but it has
its exceptions, and it is not always
true that statue later in position
is to be deemed to repeal an earlier one on
the same subject. In this instance the
code itself provides it's own rule for its CON
struction, in the following language: ssSec,
761 The provisions Of this code so far as
they are substantially the same as existing
statutes, must be construed as continue
ton thereof, and not as new enactments.' -
This rule, if applicable to the case at bar,
is mandatory. And it is applicable, for we
lind, on examination, that the two sections
now IN controversy are, not only substan-
TALLY, but exactly, the same as two statu-
tory provisions existing at the time of the
passage Of that part Of the code containing
them, and which were originally passed at
different times. The only effect Of the
codlficatlon was to continue them, as or
iginally passed, and the mere position now
occupied by them in the code cannot be a
guide to determine the latest expression Of
the legislative will We are therefore rele-
gated to the original acts themselves in or
der to determine which of the two irrecon-
cllable provisions must give way.
The one last in time must be taken to be
the law. The rule is thus laid down by
Sutherland in hisrecent and valuable work
on statutory construction, in speaking Of
repeating acts: "Though a revision oper-
ates to repeal the revised laws,
whether repugnant or not to those
portions that are re-enacted, are CON
tinuations. The revision is, however, a
re-enactment, and to be alone con-
suited to ascertain the law when its mean
ing is plain; but when there is irreconcil-
able conflict Of one part with another, the
part last enacted, Iii the original form, will
govern" Sec, 156, p. 210.
In this instance, it must be remembered,
he was speaking of revisions which did not
contain provision that the laws continued
therein should not be deemed new enact
ments. And, Of course, the reason for the
rule is still stronger under codes or reyis-
ions like ours.
Again, the same author, speaking on the
same subject, says, at page ZIG. sec. 161:
when two statutes IN pari nlateria origi-
n nally enacted at different periods Of time,
are subsequently incorporated, IN revis-
lou, and re-enacted in substantially the
same language, with the design they were
originally intended to produce, the time
when they first took effect will be ascer-
tanned by the courts, and effect will be
given to that which was the latest declara-8
tion OF the will Of the legislature, if they
are not harmonious. The
appearance of such statute in the form
and body of a revision has no other effect
than to continue it in force.'' The same
rule is also laid down substantially III End
lich on Interpretation of Statutes, in sec
tions 1888 and 203, in. the latter of which he
makes reference to our code.
In Winn VS.. Jones, 6 Leigh 76, the court
speaking of irreconcilable sections Of the
code Of Virginia, and referring to the origi-
nal law, used this language. eff there be
any inconsistency between them this last
must prevail; for in the construction of the
laws re-enacted at the revisal, we must, in
case OF 1rreconcilable difference look to the
dates of the original statutes, in order to
ascertain the last.declaration of the legisla-
tive WILL"
See also ex parte Ray VS.. Defoe, As Ala
19; Blackfo-d ct al VS.. Hurst, 26 Graft,
2c5; Hurley. VS.. Town Of Texas, 20 Wis,
665; Scheftels VS.. Tabert, 46 Wis, 439:
Rowen 161 n 5oa Y G,Naa sio' "
son AZ Al 52e 5s7 NAME "a w. ~ Pol,
vs PATTY. IL % IA r 75i 80 '"Niii5' i'f'nA
Recurring 70 to the law mon tba anas-
+;o,, ,o1u heSforo m ~, +ap9 'le 4 Yves.
If the adontinn oftba cnde &c C. gae Slne
ton W. find tbaf sact;ap w J" .s5iiiti5 nf tB5a
code is identically the same as sec
1874 entitlad 1An act 10 reomiota oriota ~, IL,
nractce and nrocad,ra i, - act;a,a,, oii
Which reneaed ali ats " ~ ols ~
theretofore enacted upon any n bect ma noSs
therein contained Hi'' f'on any suOleo' iila'-