68 Me. 525 | Me. | 1878
The Stat. of 1870, c. 121, § 1, provided that, in the absence of any agreement in writing, “the legal rate of interest shall be six per cent per annum ;” and it took effect on March 11, 1870. Section 2 repealed “ all acts and parts of acts inconsistent therewith; ” and § 1, c. 15, R. S. of 1857, being the only section or part of a section “ inconsistent therewith,” was alone thereby repealed, leaving §§ 2 and 3 (pertaining to remedies in cases of excessive interest) as amended by Stats, of 1862, c. 136, and of 1863, c. 209, in force and unmodified.
The Stat. of 1870, c. 169, provided “that c. 15, of R. S. of '1857, and all acts additional thereto and amendatory thereof, passed prior to 1870, are hereby repealed.” Unless repealed, c. 169 became “ effective in thirty days after the recess of the legislature passing it,” inasmuch as no “ different time is named
The general repealing act of 1870, c. 174, § 1, provides as follows : “ The public acts passed during the years hereafter named and herein designated are repealed, except so far as they are preserved or excepted in the following sections ; but no other acts are hereby repealed:
“ 1857. All the chapters of R. S. of 1857, numbered one to one hundred and forty-three, inclusive. . . 1870. Chapters numbered seventy seven to one hundred and seventy, inclusive, except . . c. 169.” This general repealing act, being preliminary to the enactment of the new revision, did not take effect until February 1, 1871.
What were the intention and purpose of the legislature as"they are indicated by the several enactments above mentioned ? It appears to us that only one answer can be given, viz., to unquali-fiedly repeal the whole of c. 45, R. S. of 1857.
As already seen, § 1, c. 45, R. S. of 1857, being inconsistent with § 1, c. 1.24, Stat. of 1870, was repealed by § 2, c. 124, leaving §§ 2 and 3, of c. 45, in full force. Subsequently, the same legislature enacted c. 169, purporting in terms to repeal c. 45 and all acts additional thereto or amendatory thereof, passed prior to 1870. These terms included in the repeal the acts of 1862 and 1863, cc. 136 and 209, but excluded c. 124, of 1870. The repeal of c. 45 and the amendatory and additional acts named is without condition or reservation. It took effect April 23, 1870. The general repealing act, c. 174 of 1870, expressly excepts c. 169, thus leaving it in full force.
It is contended, however, that, notwithstanding these facts, the legislature really intended to repeal c. 169; and that “ by implication the genera] repealing act did repeal it; ” and Coe v. Co. Commissioners, 64 Maine, 31, is cited as an authority to sustain this view. But we are not able to perceive how one statute can “ by implication ” repeal another in the absence of any inconsis
The case finds that a certain sum as interest, exceeding six per cent, is included in the principal of the note in suit; and the defendant contends that therefore the note, to the extent of such excess, is in contravention of the statute of usury (R. S. of 1841, c. 69), and the consideration to that extent illegal. Goodrich v. Buzzell, 40 Maine, 500. That the statute named rests upon principles similar to that prohibiting the sale of intoxicating liquors. Ellsworth v. Mitchell, 31 Maine, 247, 250. And that the repeal of the statute of usury does not validate this note so far as it is usurious. Hathaway v. Moran, 44 Maine, 67.
Had this note been given under the Stat. of 1821, c. 19, which was in terms pr ohibitory, and declared that all contracts made in violation thereof “shall be void,” there would be much force in the proposition, and reason as well as authority would sustain us in holding that the note would not be made valid by the mere repeal of the statute, the violation of which made it void. But the Stat. of 1821, c. 19, was very materially changed in 1834. Stat. 1834, c. 122. Its penal provisions were eliminated, so that
In Butler v. Palmer, 1 Hill (N. Y.), 324, Cowan, J., after reviewing the authorities as to the effect of a repealing statute, says: “ The amount of the whole comes to this, that a repealing statute is such an express enactment as necessarily divests all inchoate rights which have arisen under the statute, which it destroys. These rights are but incident to the statute, and fall with it unless saved by express words in the repealing clause.” So in Curtis v. Leavitt, 15 N. Y. 9, 153, Brown, J., says: “ The borrower can have no vested interest in the penalty or forfeiture which follows the proof of usury in an action where that defense is interposed. Whatever right he had was contingent upon the fact of the usury being established upon the trial. This the
Exceptions overruled.