119 Va. 165 | Va. | 1916
delivered the opinion of the court.
The New Market and Sperryville Turnpike Company, pursuant to a charter granted it in the year 1843, constructed a turnpike from the town of New Market, in Shenandoah county, across the Massanutten mountain, through Page county, to the top of Blue Ridge, and thence to the town of Sperryville, in Rappahannock county, a distance of about 30 miles. Of this turnpike about five miles—from New Market to the top of the Massanutten mountain—lies in the county of' Shenandoah; about twenty miles—from the top of the Massanutten mountain to the top of the Blue Ridge—lies in the county of Page; and about five miles—from the top of the Blue Ridge to the town of Sperryville—lies in the county of Rappahannock.
Some years ago the section of five miles lying in the county of Shenandoah and the section of five miles lying in the county of Rappahannock, were either abandoned or forfeited and turned over to the public
Under the statute—sub-section 5 of section 1294-j of the Code of 1904—the duty devolved upon the Circuit Court of Page county to appoint, in the months of April, August and December of each year, three disinterested freeholders to make an examination of the turnpike and to report its condition to the court, according to law in all such cases made and provided, with recommendations, and this it seems had been done through a number of years prior to the year 1914 with reference to the two sections of said turnpike east of Luray and the one section west of Luray. In vacation, August, 1914, L. M. Prank, John P. Louderbeck and D. T. Hite, freeholders, were appointed by the judge of the circuit court to view the said New Market and Sperryville turnpike, and who, after viewing the same, filed their report with the clerk of the county on the 6th day of August, 1914, wherein they reported that the turnpike was not in good eon
On a hearing of the appeal taken by the turnpike company from the decision of said viewers, as authorized by statute, the circuit court, on the 18th day of August, 1914, confirmed the report of the viewers and continued the suspension of tolls on the turnpike. Again, on October 31, 1914, the court appointed L. M. Frank, D. S. Hite and John E. Koontz, freeholders, to view the turnpike and report its condition, etc., and the same was by these viewers reported to be not in good condition, which report was filed in the clerk’s office on the 31st of October, 1914, and the suspension of tolls on the turnpike continued. This, it appears, remained the status of affairs until January 30, 1915, when notice was served on the president of the turnpike company that a petition would be filed by W. F. Keyser, Commonwealth’s attorney for the county of Page, and others, on the' 15th day of February, 1915, which was the first day of the February term, 1915, of the Circuit Court of Page county, praying an order of the court decreeing the abandonment of the turnpike and placing the same under the control of the board of supervisors of Page county, to be kept in good order in the same manner as other public roads in the county. Accordingly, such a petition was filed at the time named in said notice and the turnpike company then and there appeared and moved the court to strike out said petition as not authorized by law, which motion being overruled by the court, the turnpike company filed its demurrer to the petition setting forth the grounds thereof in writing, in which demurrer the petitioners joined, and the court having overruled the demurrer and every ground thereof, the turnpike
The first question requiring consideration by this, court is whether or not the act of the General Assembly approved March 21, 1914 (Acts 1914, p. 267), amending and re-enacting section 9 of ch. 10 of the act approved January 18, 1904, (Acts 1902-3-4, p. 1008), amended or repealed by implication the act of the General Assembly relating to turnpike companies, approved March 17, 1906, (Acts 1906, p. 267), and which itself amends and re-enacts sections 7 and 9 of ch. 10 of the act of 1902-3-4, supra.
It is well settled that the repeal of a statute by implication is not favored, and the presumption is always against the intention to repeal where express terms are not used, or the latter statute does not amend the former.
In the recent case of Lambert v. Barrett, 115 Va. 136, 78 S. E. 586, Ann. Cas. 1914 D, 1226, the opinion by Buchanan, J., says: “The repeal of a statute by implication is not favored by the courts. The presumption is always against the intention to repeal where express' terms are not used. To justify the presumption of an intention to repeal one statute by another, the two statutes must be irreconcilable. If by fair and reasonable construction they can be reconciled, both must stand.”
As we view the two statutes here in question, they are easily to be reconciled, and both should stand in so far as the act of 1906 is not amended by the act of 1914. The first paragraph of section 9 of the original act of 1904, as it appears in the act of 1906, provided that all tolls upon any section or sections of the road of any turnpike company pronounced to be out of repair by the viewers, or over which they recommend that the tolls be suspended, shall from the time of the filing of the report of the viewers in the clerk’s office, be suspended unless an appeal be taken from the decision of the viewers, as provided in section five of the act of 1904; and in the event that the circuit court shall confirm the report of the viewers, upon appeal,
The act of 1906, amending section 9 of the original act (1904), provides, as did the original act, that on the application of the president, or one of the directors of the company, a justice shall issue his warrant for summoning three freeholders of the county to be named in the warrant, to meet on the section or sections at a specified time and ascertain whether the said section or sections are in good repair or not, the proceedings upon such warrant to be the same as are prescribed in the preceding sections of the act (1904); provided that where viewers appointed by the circuit court of any county in which there may be a turnpike road upon which tolls are charged, or by the judge thereof in vacation, shall have reported such turnpike, or any section or sections thereof, as not in good repair, and payment of tolls on the same shall have been suspended in the manner provided by law, should such turnpike company allow its said road, or any section or sections thereof, to remain for four months consecutively in such condition that tolls are not allowed to be charged thereon, the Commonwealth’s attorney of such county, or any adjacent county, may
By a comparison of the act of 1906 with that of 1914 it is readily to be seen that the chief difference consists in the elimination of the provision which permitted the president or one of the directors of the company to apply to a justice for a warrant summomng three freeholders, etc., and the substitution in the later act of the provision that the application for the warrant may be made by the president or a director of the turnpike company to the court. There seems to have been no effort or purpose to make any change in the remainder of the act of 1906, except in so far as the act of 1914 says, “and until said section or sections shall have been put in good repair and ascertained to be so, etc., within four months from the date of filing the report of the viewers;” whereas, the language of the act of 1906 is, that “if any section or sections thereof remains for four months consecutively in such condition that tolls are not allowed to be charged thereon the Commonwealth’s attorney may apply by petition again to have these sections viewed,” etc. Then follows the provisions for the filing of the report of the viewers, which report was to deal with and report upon the matters and things as provided for in the preceding sections of the act of 1904, and in addition the viewers were in their report to state whether in their opinion the turnpike company had made substantial effort to put in good repair such section or sections of its road as had been declared to be not in good repair and tolls thereon suspended, whereupon the court was to hear and determine
Neither the act of 1914, nor the act of 1904 which it purported to amend, provides that if the road is not in good repair within four months from the filing of the report of the viewers pronouncing the road not to be in good repair the same shall be declared abandoned by the court and the charter and franchise forfeited, but the ninth section of the former act provided for another set of viewers charged with the duty of ascertaining and reporting whether the road or a section or sections thereof declared to be out of repair was then in good repair or not; while the amendment of section 9 of the act by the act of 1906 goes further and requires that these viewers state in their report whether in their opinion the turnpike company has, within a time specified, made substantial effort to put in good repair such section or sections of its road since the same was or were declared as not being in good repair and tolls thereon suspended. It is upon such a report that the court is required to give, after notice to the turnpike company, a hearing of the cause, and is authorized,
In 36 Cyc. p. 1077, it is said: “When two statutes cover in whole or in part the same subject matter, and are not absolutely irreconcilable, no purpose of repeal being clearly shown, the court, if possible, will give effect to both. Where, however, a later act covers the whole subject of the earlier acts and embraces new provisions, and plainly shows that it was intended, not only as a substitute for the earlier acts, but to cover the whole subject then considered by the legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of all former statutes relating to such subject-matter, even if the former are not in all respects repugnant to the new act. But in order to effect such repeal by implication it must appear that the subsequent statute covered the whole subject-matter of the former one, and was intended as a susbtitute for it. If the later statute does not cover the entire field of the first, and fails to embrace within its terms a material- portion of the first, it will not repeal so much of the first as is not included within its scope, but the two will be construed together, so far as the first still stands.” In other words, as the same author
It would be an unwarranted construction, as it appears to us, of the act of 1914 under consideration here, that would permit the court, merely upon the fact that four months had elapsed from the filing of a report of viewers of the turnpike, pronouncing it not to be in good repair, to declare it abandoned and the charter and franchises of the turnpike company forfeited, and that too without giving to the turnpike company a hearing and an opportunity to show cause, if any it had, why such a judgment should not be pronounced against it.
The proceedings upon the petition of defendants in error in this case having ignored the unrepealed provisions of the act of 1906, which provide for a hearing of the turnpike company before its road or any part of it could be declared abandoned and the charter and franchise of the company forfeited, the turnpike company, plaintiff in error here, as the order of the court complained of states, “offered evidence to show that substantial work was done on said turnpike in the early part of November, 1914, (that is, within four months from the date of the filing of the first report of the
There is no merit in the plaintiff in error’s third assignment, which presents the questions, (1) whether the act of 1914 is unconstitutional, in that its title does not express the object of the act, if it is claimed that under the act a turnpike company can forfeit, without due process of law or hearing, its franchises and charter and be declared abandoned; and (2) whether the act is unconstitutional and void because it requires that the viewers must be freeholders.
The object of the statute, as its title expresses, is to amend and re-enact two sections of a previous act relating to turnpike companies, and the act itself conforms to the purpose expressed in its title, and cannot, for the reasons above stated, be fairly or reasonably construed as authorizing the forfeiture without due process of law of the franchises and charter of a turnpike company and an adjudication that its road, or some part or parts of it, has been abandoned.
We do not think that the provision in the statute requiring that the viewers of a turnpike road, appointed by the court, shall be freeholders violates section 32 of Art. 2 of the Constitution, which provides that “every person qualified to vote shall be eligible to any office
Other points raised in the petition for this writ of error are either considered as wholly without merit or as not likely to arise upon another trial of the ease.
Reversed.
N. B.—Costs to be recovered by plaintiff in error of defendants in error other than W. F. Keyser, Commonwealth’s attorney for Page county.