Elliott v. Lochnane

| Kan. | Feb 15, 1862

By the Court,

Ewing C. J.

This was an action brought by plaintiff in error against defendants in error in the District Court sitting in Douglas county on the 21st day of May, 1859, to recover damages for an alleged destruction by defendants, on the 21st day of May, 1856, at the town of Lawrence, of a library and a newspaper establishment, owned by plaintiff.

Defendants Abell, Carr, and Redman, severally answered, .pleading—

First. A general denial.

Second. The statute of limitations of 1855, which provide that “ an action for taking, detaining or injuring any goods or chatties” “shall be commenced within three years.” (Laws of 1855, p. 96.)

Third. The statute approved February 11th, 1859, which provides that such action “ can only be brought within two years. ” {Laws of 1859, p. 84.)

By consent, the cause was transferred to the District Court sitting in Jefferson county, and there plaintiff filed a demurrer to each of the pleas of the statutes of limitation, which was overruled as to the pleas, but sustained as to the petition, to which ruling plaintiff excepted, and files his petition in error here. 1

The act approved February 12th, 1858, which took effect on the 1st of April of that year, provided that “ actions for taking, detaining or injuring personal property ” can only be brought within four years next after the cause of action “shall have accrued. ” This provision supplied and repealed the three years limitation of 1855 above quoted, and added-one year to the time for commencing suits “ for taking, detaining or injuring personal property,” in all cases not barred by the law of 1855, on the 1st day of April, 1858.

The provision in section fifteen of the limitation law of 1858, that “ civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued, ” does not confine the effect of the title to actions thereafter to accrue. The thirteenth section of that law provides that “ this title shall not apply to actions already commenced, but the statutes iiow in force shall be applicable to such cases ” — plainly showing that the title was meant to apply to all actions not then commenced or barred, whether the cause had or had not already accrued.

The provision of the law of 1858 above quoted,' continued in force until it was supplied and, by implication, repealed by the provision of the law of 1859 above quoted. The last named provision is part of the act to establish a Code of Civil Pro-cedure, approved February 11th, 1859, the last section of which is as follows:

Section 824. “ This act to take effect and be in force from and after the first day of June next. ”

On the 10th of February, 1859, an act was approved, entitled “ An act amendatory of ‘an act to establish a Code of Civil Procedure,’ passed February, 1859, ” which provides^—

“ Section 1. The act to which this is amendatory shall take effect and be in force from and after the passage of this act. ” • ■

“ Section 8. This act shall take effect and be in force from and after its passage. ”

Evidently the first section of the last named act could- not put the Code into effect on the 10th of February, for on that day the Code did not exist. Though that section might not be absolutely void, because it seeks to put into instant effect a law not in existence, it certainly is so if in plain and irreconcilable conflict with such law when thereafter enaeted. It is a rule without exception, that where two statutes are, in any respect, in both language and meaning, irreconcileably repugnant, the provisions of the statute last enacted repeal those of the former with which they conflict. It is true that provisions in letter conflicting are to be construed if possible, so that both may stand; but where, by no construction both can stand, the intention manifest in the latter law is uniformly given effect by tbe Courts. This rale of construction is announced in many English and American decisions, and controverted in none; and it is as well supported £by reason as by authority. The case of the Southwark Bank vs. the Commonwealth (26 Penn. JR., pp. 380-2, as cited in Sedg. p. 416,) seems to affirm rather than question the rule.

By the organic act, the legislative power of the Territory was vested in the «Governor and Legislative Assembly, and at the date of approval by the Governor the acts under consideration became laws. That approved February 10th, provides that the Code go into effect on that day, while that approved February 11th, provides that it shall go into effect on the first of June thereafter. Nothing can be gathered from other parts of either law to effect the construction of these contradictory provisions, and we therefore feel bound to carry into effect the provision in the act of February 11th, as being the last expression of the legislative will.

It is argued that this conclusion involves the absurdity of having a provision of an act entitled amendatory repealed by a law it purports to amend. The organic act required no title, and hence this is no part of the law, but is a mere clerical prefix. It may be resorted to in aid of interpretation to show that the law when passed was intended to amend the Code; but whatever was the legislative intention on the 10th of February as to the Code, as shown in this proposed amendment, the intention as clearly expressed on the 11th can not be effected by it.

We do not choose to consult theories as to the origin of the singular conflict in these laws. It matters not how it originated, or which law passed either or both branches of the Legislative Assembly first. The legislative intent is fully expressed when and not until a bill becomes a law, and it takes date and effect then. The contradictory intentions as to when the Code should take effect are plainly expressed in the two laws; and to allow the intention expressed first to annul that expressed' last, or any theory as to the origin of the contradiction, would be to seek legislative intent by guessing instead of by interpretation.

We hold, therefore, that, as the provision ofthelawofl855 above quoted, limiting the time for bringing actions “for taking, detaining or injuring goods or chatties,” was by implication repealed on the 1st of April, 1858, and as the provision of the law of 1859 above quoted, limiting actions in like cases, was not in force when this suit was brought, the grounds numbered two and three in the several answers of defendants were bad on demurrer. In the argument in this Court no objections were presented to the petition. We suppose the District Court held it demurrable, because it shows on its face that the cause of action accrued on the 21st of May, 1856. Holding as we do that the action was not barred, we think the petition states facts constituting a cause of action, and therefore the demurrer should not have been sustained as to it.

Ordered by the Court that the order overruling the demurrer as to the answers, and the order sustaining it as to the petition, be reversed; and the cause remanded to the District Court with, instructions to sustain the demurrer to the second and third pleas of the several answers.

Judgment and execution here against defendants in error for costs.