Virginia citizen. (Irvington, Va.) 1891-1921, 1900-03-02
IMPORTANT OYSTER DECISION.
State Supreme Court Renders
Strong Decision on Dredg-
fnU

state Supreme Court Renders
Strong Decision on Dredg.
ing.
Below we publish copy of the de-
cision of the Supreme Court of Ap
peals in an oyster case that went III
from the County Court of Accomack
and which though rendered on
March 30, 1899, has only recently
been published. 1t is found l Va
Supreme Court Rep. 231.
soMERs VS.. THE COMMONWEALTH
Riley, Justice. The question to
be decided in this case, is, whether il
is criminal offence to take or catch
oysters with dredges on private oyster
grounds.
The act of April 2S, 1887 (acts
Extra Session 1887, p. 11S), and the
act of March 8, 1883 (acts 1878, ..
1860, amendatory thereof, among
other things which they prohibit with
respect to oysters, contain provision
against dredging on private oyster
ground even by the owner of the
planted oysters, and prescribe a pen
atty of not less than fifty dollars for
each violation of the provision.
Neither of the above acts is affect
ed by the adoption of the Code of
1887 and the repeal of all acts and
parts of acts of a general nature in
force at the time of it's adoption.
Code Secs. 1902, 1908.
The things which are prohibited
by the said acts, with the exception
of dredging, are reprohibited by section
214S of the Code, which, like the said
acts is founded upon the original act
of March 4, 1884 (Ac.s 1884, D.
324), and the amendments made
thereof from time to time.
BY act of March 8, 1898 (Acts
1878 p. 745), the act of March 5,
1888, and section 2l4S were both
amended and re-enacted. While the
provision against dredging is re-
tanned in the amendatory act, all
punishment for its violation is omit
ted The penalty prescribed for do
ing the other things prohibited plain
ly does not apply to dredging. The
act simply prohibits dredging with
out prescribing any punishment for
It's commission or declaring it to be
criminal offence. 1t is, therefore,
contended that the provision of the
act of March 5, 1888, making dredg-
ms on private oyster ground a mis-
demeanor, is repealed by the act of
March 3, 1898. 1t does not do so in
express terms, and if the provision is
repealed, it is by implication.
The repeal of the statute by i'm
plication is not favored by the courts.
The presumption is always against
the intention to repeal where express
terms are not used, or the later stat.
ute does not amend the former. To
Justify the presumption of an inten-
tion to lepeal one statute by another,
the two statutes must be irreconc;l-
able. If, by a fair and reasonable
construction, they can be reconciled,
both must stand. If, however, they
are inconsistent and irreconcilable,
then an intention to repeal is pre-
sumed, but only to the extent of the
repugnance. Fulkerson VS.. Bristol,
50 Va, !; Davies & Co. VS.. Creighton,
33 Graft, COG; and Sutherland on
Statutory Construction, Sec. 1873.
But where the later statute was
plainly intended to embrace the
whole legislation on the SUBJECT 10
which it refers and to be wholly sub
stituted for all former statutes on
the same subject, it must be held to
be legislative declaration that
whatever is embraced in it shall pre-
vail and whatever is excluded is-dis-
carded and repealed. Fox VS.. Com
monwealth, 16 Graft, L; McCready
VS.. Commonwealth, q Graft, 9s2;
Davies q Go. VS.. Creighton, 33 Graft,
696; Sutherland on Statutory Con-
struction, Sections 1856, 156.
Laws are presumed to be passed
with deliberation, and with a knowl-
edge of all existing laws on the same
subject and their various provisions
This presumption in our opinion is
a very violent one.-EDIToR The
act of March 3, 1898, both in its
title and in the enacting clause, re-
fers directly to the act of March 5,
1888, and makes it, in part, the sub
iect of the amendment. 1t amends
it and section 2148 of the Code $50
as to read as follows" that is, in the
words of the amendatory act. 1t is
manifest that the act of March 3,
1898, was intended to be repeal of
all parts and provisions of the
statutes amended which were omitted
from it. 1t is necessarily implied
that what is left out is no longer in
force. Sutherland on Statutory
Construction, Sec. 1877. 1t, there
fore. follows that dredging on pri-