Congdon v. Butte Consolidated Railway Co.

17 Mont. 481 | Mont. | 1896

De Witt, J.

The question here is whether section 75, Code of Civil Procedure, repeals subdivision 1 of section 72, so that a service of summons upon a domestic corporation made in full accordance with the provisions of subdivision 1 of section 72 is void if such service does not also fulfill the requirements of section 75. Under the provisions of section 72, service may be made upon a domestic corporation by serving the summons upon the president or other head of the corporation, secretary, cashier or managing agent thereof. Under section 75, any corporation doing business in this state may be served by serving the summons upon the president, secretary, treasurer or other officer of the corporation, or upon their designated agent. The section then provides, in case these officers cannot be found, for a service upon certain subordinate employes of the corporation. As the service in this case was not made upon the president, secretary or treasurer, or, as appellant claims, any other officer, or upon a designated agent, it is contended that the return should have shown that such officers could not be found, and that for that reason service was made upon the managing agent. This section 75 provides that the service may be made upon any other officer. We are not prepared to hold that the managing agent of the corporation was not such other officer. ’ ’ He himself, in making an affidavit to set aside the default, admits that he was the managing agent, and does not claim that he was not an officer of the corporation, nor do any of the affidavits filed by the appellant pretend that the person served was not an officer. Under these circumstances, there is much reason to hold that the managing agent served was an officer of the corporation, within the purview of section 75.

But we will pass this question, and advance to another consideration. Unless subdivision 1 of section 72 was repealed by section 75, the service in this case was good. Section 75 did not directly repeal subdivision 1 of section 72. If there was a repeal at all, it was by implication only. Repeals by implication are not favored. (United States v. 196 Buffalo Robes, 1 Mont. 495.) Furthermore, both section 72 and section 75 were reenacted in the revision of 1887, and thus may be considered as the acts of one legislature.

It is said in Sutherland on Statutory Construction (section 156) as follows : “Though a revision operates to repeal the laws revised, whether repugnant or not, those portions that are reenacted are continuations. The revision is, however, a reenactment, and to be alone consulted to ascertain the law when its meaning is plain; but, when there is irreconcilable conflict of one part with another, the part last enacted in the original form will govern; and, when it becomes necessary to construe language used in the revision which leaves a substantial doubt of its meaning, the original statutes may be resorted to for ascertaining that meaning.

Upon the same subject, this court, through Mr. Justice Hunt, made the following remarks in State ex rel., Aachen & M. Ins. Co. v. Rotwitt, ante, page 41: “ We conclude, therefore, that the legislature enacted both laws, — the one, title 11, as adopted, by way of new enactment; the other, by express retention of the act of March 8, 1893. As before stated, we regard the repealing clause in the 1893 act as ineffective against the new legislation of 1895. Both laws must therefore be upheld if, by fair and reasonable interpretation, they may be made to operate in harmony, and without absurdity. (Sutherland on Statutory Const. § 152.) There is a presumption that the legislature did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. ‘In an endeav- or to harmonize statutes seemingly incompatible, to avoid repeal by implication, a court will reject absurdity as not enacted, and accept with favorable consideration what is reasonable and convenient. ’ Id. It is also a rule of construction that, where two acts were passed at the same session of the legislature, effect should be given to each, if possible. In such a case the presumption is strong against implied repeal. (Houston & T. C. R. R. Co. v. Ford, 53 Tex. 364; Smith v. People, 47 N. Y. 330; Sutherland on Statutory Construction § 153.)”

These two sections under review having, in effect, been passed by the same legislature, the question is whether section 75 is so repugnant to subdivision 1, section 72 that the latter cannot stand. We think not. Section 72, in its two subdivisions, called 1 and 2, provides for service upon domestic corporations and foreign corporations. Section 7 5 names any corporation doing business in this state. It is apparent in reading section 75 that it is an extension of the facilities of serving a corporation. Section 72 provides simply for service upon principal officers of a corporation, whether domestic or foreign. Section 75 also provides for service upon principal officers, and, furthermore, if such officers cannot be found, gives the privilege of service upon certain employes, and it extends this privilege to employes of apparently very low degree. It provides for service upon a clerk, ticket agent, or station keeper. In other words, it would seem that, if service cannot be obtained under the provisions of section 72, it may be obtained under the more liberal provisions of section 75. It does not appear to us that the two sections are necessarily repugnant. We are of opinion that there is nothing in section 75 which is repugnant to the provisions of section 72 allowing service upon the managing agent of a domestic corporation. (Telephone Co. v. Turner, 88 Tenn. 265, 12 S. W. 544.)

It is argued, and Mr. Sutherland is quoted to the effect, that where there are two statutes on the same subject, passed at different dates, and it is plain from the framework and substance of the last that it was intended to cover the whole subject, and to be a complete and perfect system or provision in itself, the last statute must be held to be a legislative declaration that whatever is embraced in it may prevail, and whatever is excluded is discarded and repealed. But it appears to us that section 75 does not seem to be a complete and perfect system in itself, to the exclusion of section 72. It does not cover the whole subject of service upon corporations, domestic and foreign. For instance, it makes no provision at all for service by publication. And, if section 75 is to be considered the only complete system in itself, then service by publication cannot be made at all. But service by publication is expressly provided for in section 72 and section 73. We do not consider that the provisions for service in this way were intended to be repealed by section 75; but, if section 75 is a complete system in itself, then there is no such procedure as service upon a corporation by publication. We cannot hold that section 75 was a complete substitute for all other provisions for service upon corporations, nor that it was necessarily repugnant to the provisions of section 72, allowing service upon the managing agent of a domestic corporation. We are therefore of the opinion that the service of summons made in this case was good* and that, therefore, the district court did not err in refusing • to open the default and set aside the judgment. The order appealed from must therefore be affirmed.

Affirmed.

Pemberton, C. J., concurs.