Collins v. Smith, 6 Whart. 294

Collins v. Smith

6 Whart. 294 | Pa. | 1841

Gibson, C. J.,

delivered the opinion of the court.

The Schuylkill Savings Institution is an unincorporated banking association; and it is illegal if the act of the 19th of March, 1810, is still in force. That act forbade unincorporated banks to issue their notes, to lend money on business or accommodation paper, to receive it on deposit; or to do q.ny act which an incorporated bank might do; and these prohibitions were unlimited as to duration. But an act was passed on the 21st of March, 1814, which created thirty-nine new banks, and which, having declared the contracts and notes of all unincorporated banks void, repealed the act of 1810 in terms, and limited the duration, not only of the new charters, but of its own existence, to a period of little more than eleven years. Then came the act of the 25th of March, 1824, which, without again supplying the prohibitions of the act of 1810, or continuing those of the act of 1814, renewed the charters of certain banks named in it, most of which had come into existence under the act of 1814; so that the question is, whether the expiration of a statute by its own limitation, ipso facto, revives a statute which had been repealed and supplied by it.

It is an admitted rule of the common law, that the repeal of a repealing statute revives the original. But in Warren v. Windle, (3 East, 211,) Lord Ellenborough suggested—for notwithstanding the synopsis of the case, and the quotation of it by text writers and compilers, it was not decided—that there may be a difference betwixt the repeal of a repealing act, and the expiration of it, when “ though temporary in some of its provisions, it may have, a permanent operation in other respects. The statute 26, G. 3,” said he, “ professes to repeal the statute 19 G. 2, absolutely, though its own provisions which ft substituted in the place of it, were only temporary.” If he meant by this that there may be a permanent repeal of provisions which’ are at the same time but temporarily supplied— in other words, thai parts of a statute may be temporary, while other parts of it are perpetual—I admit it. A statute may be repealed without being supplied at all; and the providing of a temporary substitute does not necessarily make the repealing statute also temporary. That, however, is not the attribute of the statute before us ; for every enactment, branch, and clause of it, was to cease at' the time appointed. But if Lord Ellenborough meant to be understood that every present repeal is necessarily a permanent one, though declared by a temporary act, or that a statute may continue to operate as a repeal after it is itself defunct, he assumed what cannot be granted. I have found nothing like a decision or dictum to support his suggestion; and there seems to be as little foundation for it in reason. The common law is not essentially imperishable, nor does it possess more inherent power of self resuscitation than does a statute. Sir Matthew Hale thought that many things which *298now obtain as common law, had their origin in parliamentary acts or constitutions made in writing by the King, Lords and Commons, though those acts are either not now extant, or, if extant, were made before the time of memory. However that may be, the common law may certainly be repealed and supplied as a statute may; and were it done by a statute of limited duration, it could scarce be maintained that the common law would not revive as soon as the statute were spent. We have a statute which directs that a remedy provided by act of assembly shall be pursued in exclusion of every other, and which is pro tanto a substantive repeal of the common law. It happens to be perpetual; but were it temporary, we should, according to Lord Ellenborough, have nothing to supply the place of a temporary and exploded statutory remedy, when that statute would expire—a consequence not anticipated and certainly not intended. In what does the limitation of a repealing clause differ from the repeal of such a clause! It may be thought that an immediate repeal evinces a change of intention, and that no. other object can be assigned for it than the revival of the original. The revival, however, arises, not from an implication of intention, but from a removal of the pressure which kept the original statute down; and were it otherwise, such an implication would equally arise from a limitation, which is a future repeal by anticipation. It is a declaration that the statute shall stand annulled at the appointed time, and be as entirely annihilated as if it had not been enacted; so that a statute abrogated by it might less properly be said to be repealed than suspended. And it can scarce be doubted that the legislature of 1814 intended only to suspend the act of 1810, and not to abrogate it. That body was not more tolerant of unauthorised banking than were its predecessors ; and that it introduced new provisions only for the sake of experiment, is evident from the fact that they were of limited duration. The object was not to protect the new banks from unauthorised competition, as it might seem to have been from the limitation of the prohibition to a period co-extensive only with the duration of their charters—for other banks, having equal claims to protection, had paid for charters with longer time to run— but it was more effectually to restrain an independent mischief which had survived every attempt to suppress it. If, then, the repeal of the act of 1810 was intended to be permanent, why were not the prohibitory sections of the act of 1814 also permanent! Perhaps it may be thought that the final disposition of the subject was purposely postponed, with a view to the result of the experiment, till further legislation should be needed for the new banks. But at the renewal of their charters in 1824, the legislature evidently thought there had been a final disposition of it already, else they would have acted on it. And they could have thought so only by viewing the approaching expii'ation of the repealing act as a restoration of that which had preceded it. There was no change of temper as to these *299associations; for their tendency could not be disguised, and the public interest in the banking privilege was too valuable to be thrown open to those who did not pay for it. We must suppose, then, that the legislature intended to leave them to the original act; whence it results that the Schuylkill Savings Institution, being an unincorporated association for purposes of banking, is illegal, and that the note in suit, being drawn in favour of its treasurer, is void.

Judgment reversed.