61 Minn. 205 | Minn. | 1895
Lead Opinion
On the first Monday of April, 1893, William G. Goffe, a practicing physician, was duly appointed health officer of the city of Duluth. He accepted the office, and continued to discharge the duties thereof until March 10, 1895, when the respondent, Walter W. Routh, who was also a practicing physician, was, as he claims, duly appointed such health officer*by a majority vote of all of the members of the common council of such city, by virtue of the provisions of Sp. Laws 1887, c. 2, as amended by Sp. Laws 1891, c. 55, and the health ordinance of the city, approved February 25, 1895. The respondent thereafter, by virtue of his alleged appointment, qualified, and entered upon the duties of the office, and took possession thereof and of its records, with the approval of the city government of the city of Duluth, and now holds possession of such office. The relator claims that such election and appointment of the respondent was a nullity, because the ordinance under which
Was the term of the health officer of the city of Duluth at the time the respondent was appointed one year or three years? This 'is the only question presented by the demurrer, for, if the term was for one year, the respondent was legally appointed, and is entitled "to hold the office; but, if the term was for three years, he was not, .and is an intruder into the office, because in such case the term of Dr. Goffe had not then expired. The term was for three years, unless so much of the general statute relating to local boards of health ns fixes the term of the health officers at three years has been repealed as to the city of Duluth by subsequent local legislation. The question is to be solved by an examination of such local legislation; to ascertain whether or not it has effected, as to such city, a repeal, by necessary implication, of so much of G. S. 1894, § 7048, as fixes the term.
The rules for interpreting a special statute for the purpose of deciding whether it repeals by implication a previous general law are well settled. The presumption is not to be lightly indulged that •the legislature has repealed by implication, as respects a particular municipality, laws of a general nature elsewhere in force throughout the state; yet a qharter or special law, passed subsequent to a .general law and plainly irreconcilable with it, will, to the extent of the conflict, operate as a repeal of the latter by implication. Such repeals are not favored by law, and the rule should be applied with caution. State v. Archibald, 48 Minn. 328, 45 N. W. 606; 1 Dillon, Mun. Corp. § 88. But when a general intention is expressed, and also a particular one, which is inconsistent with the general one, the particular intention will be considered an exception to the general one; that is, where a special law which applies to a limited district, — as a city, — conflicts with a previous general law, the latter yields to the former. Tierney v. Dodge, 9 Minn. 153 (166); Sutherland, St. Const. §§ 158, 159; 23 Am. & Eng. Enc. Law, 479.
In the year 1887 the city of Duluth was incorporated, embracing within its limits all of the territory formerly included within the village. Sp. Laws 1887, c. 2. All of the ordinances in force in the village at the time this city charter went into effect which were not inconsistent therewith were by it continued in full force and • effect until repealed by the common council, and all acts and parts
From these provisions of the charter it is clear that the term of office of the elective officers — that is, those who are elected by the electors — is two years, and that the appointive officers — that is, those elected by the common council — is one year, and that the health officer is an appointive officer.
It is not possible, in this respect, to distinguish the health officer
In reaching this conclusion we have not overlooked the proviso (subchapter 3, § 5, of the charter) continuing in force the village health ordinance, which fixed the health officer’s term at three years. It is apparent that this village ordinance, so far as it made the health officer’s term three years, was inconsistent with the charter, and would not, in this respect, be continued in force by the general saving clause continuing in force all village ordinances not inconsistent with the charter; therefore, to avoid confusion and uncertainty as to whether or not the health ordinance remained in force, this special proviso was added, for without it the ordinance, as to the term at least, would be repealed by the charter, precisely the same as the general law as to the term was repealed by it,. After the charter was enacted, the term of the health officer of the-city of Duluth continued to be three years solely by virtue of this, health ordinance, and. not by virtue of the general law, which had been repealed, as to the term, by the charter. This is the necessary and logical conclusion to be drawn from the several provisions-, of the charter we have referred to.
The section of the charter to which this proviso was a part was; amended by Sp. Laws 1891, c. 55, § 6, “so as to read as follows,” and from the amendment the proviso was wholly omitted. This omission to re-enact the proviso repealed and extinguished it as to the future as fully as if it had never been enacted, for a statute providing that a previous one shall be amended “so as to read as follows” repeals everything contained in the original statute not re-enacted, and the amended statute is to be construed, as to any action had after the amendment, as if the statute had been originally enacted in the amended form. Sutherland, St. Const. § 133; 23 Am. & Eng. Enc. Law, 488. After the repeal of this- proviso, the village ordinance was repealed as to the health officer’s term, for it was inconsistent with the charter, and thereafter- such term was one
It follows that the city ordinance of 1895, which fixed the health officer’s term at one year, was in accordance with the city charter, and is valid', and that the respondent was legally appointed health officer of the city of Duluth by virtue of its charter and ordinance, and is now such officer.
Demurrer overruled, and writ discharged.
Dissenting Opinion
(dissenting). I cannot concur in the foregoing opinion. It is conceded by the majority that Laws 1885, c. 4 (G-. S. 1894, § 7048), has not been repealed, except by implication. It provides that the board of health is “to consist of the number hereinafter provided, * * * and shall consist of not less than three members, one of whom shall be a physician.” Soon after the passage of this act, and in entire conformity with it, the village council of the village of Duluth passed an ordinance establishing a board of health, and providing for the same length of term and commencement and ending of term of office of its members as the general law does. Afterwards, in 1887, Duluth obtained a new charter, incorporating it as a city. -This charter did not in any manner repeal the provisions of said general law of 1885. On the contrary, it expressly provided for the establishment of a board of health on exactly the same plan as the law of 1885, by declaring said ordinance to be in full force and effect. If, under these circumstances, the law of 1885 is repealed, it is not because the subsequent special legislation is in conflict with it, but because it is in perfect harmony with it; in fact it is plain that this ordinance was originally passed solely for the purpose of carrying out the provisions of the general law of 1885. It seems to me that this is a new rule of repeal by implication.
To sustain its position, the majority cite wholly disconnected and collateral provisions of the charter of 1887, which provide that certain officers elected by the people shall be elected for two years, and that appointive officers shall hold for one year. These are found in Sp. Laws 1887, c. 2, sube. 2. It might be inferred from the opinion of the majority that the words, “the common council shall elect
This section is in no respect inconsistent with the general law of Í885. In fact, if the charter made no reference to a health officer or board of health, it might well be argued that the intention was to exclude the operation of the general law within the limits of the city of Duluth. It should be remembered that the general law of 1885 is by its own terms auxiliary to all the charters of all the cities, towns, and villages in the state, and is intended to establish a uniform system of police regulations on the matters to which it relates. The indefinite reference to the health officer and board of health now to be found in the charter of Duluth should be construed as affirming the general law; not repealing it.