Barton v. Moscow Independent School District No. 5

29 P. 43 | Idaho | 1892

SULLIVAN, C. J.

This is an action brought to obtain an injunction to restrain the issuance, sale, and delivery of $25,000 of bonds, the proceeds of which are to he used in erecting and furnishing a schoolhouse in the Moscow independent school district No. 5 of Latah county. The court below denied the motion for an injunction, from which order this appeal was taken. An act was passed by the legislature of the state of Idaho at its first session entitled: “An act to authorize independent school districts to issue bonds to redeem, fund, or refund their indebtedness, and to provide and to improve schoolhouses and grounds and furniture and fixtures,” which act was approved March 6, 1891. (Idaho Sess. Laws 1890-91, p. 129.) Said legislature, at said first session, also passed an act entitled “An act to establish and maintain a system of free schools,” which act became a law, over the veto of the governor, on the said sixth day of March, 1891. (Idaho Sess. Laws 1890-91, p. 131.) We have not been able to ascertain which of said acts became a law first, nor do we consider it necessary to determine that question. Said first-mentioned act provides as follows: “Be it enacted by the legislature of the state of Idaho, that there be added to chapter 11 of title 3 of the Political Code the following sections.” Then follow three sections, directing the procedure to govern the board of trustees of independent school districts in the issuance of bonds “to redeem, fund, or refund their indebtedness, and to provide and improve schoolhouses and grounds and furniture and fixtures.” The second act above referred to provides a plan for the establishment and maintenance of a system of free schools, and contains, among others, the provisions of said chapter 11, title 3 of the Political Code, almost verbatim. The word “territory” is changed to “state,” and a very few other words are changed; but the scope and meaning of the provisions of said chapter remain substantially the same as before the passage of said act.

It is contended by the appellant that section 65 of the last act above referred to repeals all of the provisions of said chapter 31, title 3 of the Political Code, and that said first-mentioned act is an amendment of said chapter 11, and for that reason it is also repealed by said section 65, which section is as follows: “Title (3) three of the Political Code, and all acts and parts of acts inconsistent with this act, are hereby repealed.” Title 3 of the Political Code was “Public Schools.” Said title contains eleven chapters. The eleventh chapter thereof provides for establishing independent school districts, and none of its provisions .are inconsistent with said act containing said section 65. The provisions of said chapter 11 were re-enacted by said second-mentioned act almost verbatim, and are contained in said act from sections 57 to 64, inclusive. We think that by the re-enactment of the provisions of said chapter 11 the intention was to continue in force the uninterrupted operation of said provisions, and that such re-enactment was not, in -a proper sense, a repeal thereof, but that the new act was a mere continuing in force of the provisions of the former act. (State v. Wish, 15 Neb. 448, 19 N. W. 686.) Sutherland, in his work on Statutory Construction (section 133), says: “The portions of the amended sections which are merely copied, without change, are not considered as repealed, and again re-enacted, but to have been the law all along”; and in section 134, he says: “When there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the repeal, so far as the old law is continued in force. Offices are not lost, corporate existence is not ended, .... by such repeal and re-enactment of the law on which they respectively depend.” In Sheftels v. Tabert, 46 Wis. 439, 1 N. W. 161, the court says: “The rule of construction applicable to acts which revise and consolidate another act or acts is that, when the revised and consolidated act re-enacts in the same words the provisions of the act or acts so revised and consolidated, such revision and consolidation shall be taken to be a continuation of the former acts, although such former acts may be expressly repealed by such revised and consolidated act.” To the same effect is Association v. Benshimol, 130 Mass. 325; also Wright v. Oakley, 5 Met. (Mass.) 400; Capron v. Stout, 11 Nev. 304; Steamship Co. v. Joliffe, 2 Wall. 450. It merely supersedes said chapter 11 by re-enacting the provisions thereof, and thus continues the same in force. The repealing clause of the act which became a law over the veto of the governor clearly indicates that it was not the intention of the legislature to repeal the provisions of said chapter. It repeals only the title of title 3 of the Political Code, and re-enacts the provisions of said chapter, giving it a new title. The act of March 6, 1891, authorizing independent school districts to issue bonds, is designated as an amendment to chapter 11, title 3 of the Political Code; but it has a title of its own, and is complete in itself. Said act of March 3, 1891, which was passed over the veto of the governor, re-enacts all of the provisions of said chapter 11, title 3, and is specific in repealing the title only to said chapter, and all acts and parts of acts inconsistent with said act. Both of these acts became a law upon the same day — the one by the governor’s approval, and the other over his veto. It was, unquestionably, contemporaneous legislation, and, as there is no conflict or repugnancy between said acts, both should be permitted) to stand. (Endlich on Interpretation of Statutes, secs. 159, 222; Smith v. People, 47 N. Y. 330; Pond v. Maddox, 38 Cal. 572; State v. Babcock, 23 Neb. 128, 36 N. W. 348; Commonwealth v. Kenneson, 143 Mass. 418, 9 N. E. 761.) The order of the court below, refusing to grant an injunction, should be sustained, and it is so ordered, with costs of this appeal in favor of the respondent.

Huston and Morgan, JJ., concur.