State ex rel. Vastine v. McDonald, 38 Mo. 529

State ex rel. Vastine v. McDonald

38 Mo. 529 | Mo. | 1866

Wagner, Judge,

delivered the opinion of the court.

The relator claims the office of public administrator of St. Louis county by virtue of an election by the people at the last general election, and the respondent refuses to approve his bond and permit him to qualify on the ground that the law making the office elective is repealed, and that the power to appoint a person to fill the said office is vested in the respondent as sole judge of the St. Louis Probate Court. By an act of the Missouri Legislature approved March 3, 1857, it was provided at the next general election after the passage of the law, and every four years thereafter, the public administrator should be elected in certain counties including St. Louis, and that he should hold his office for four years and until his successor should be elected and qualified.

The General Statutes, chap. 428, § 1, p. 515, declares that “ each court having probate jurisdiction in any county may appoint a public-administrator for its county who shall have been a resident citizen of the county for one year previous to his appointment, and shall hold his office for two years and until his successor be qualified.” Chap. 224, § 6, p. 883, of the General Statutes, provides that all acts or parts of acts of a private, local or temporary nature, or specifically applicable to certain particular cities or counties, in force on the first day of November in the year 1865, not repealed by or repugnant to the provisions of the General Statutes or some act of the present session of the General Assembly, shall continue in force or expire according to their respective provisions or limitations.

It is contended here that this last recited section of the general statutes necessarily repeals the special law and vests the power of appointment in the court having probate juris*534diction, as prescribed by sec. 1, chap. 128 ; that the two acts are repugnant and inconsistent, and that the -former must give way to the latter. It may be stated as a well settled rule of construction that the law does not favor the repeal of a statute by implication—Dwar. on Stat. 533; 11 Coke, 63; Dyer, 347. A later statute, which is general and affirmative, does not abrogate a former, which is particular, without negative words are used, or unless the two acts are irreconcilably inconsistent—Deters v. Renick, 37 Mo. 597 ; Dwar. 532; Brown v. County Court, 21 Penn. Stat. 37 ; O’Neil v. Commonwealth, id. 427. Sedgwick says: “ The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular, or positive, previous provisions, unless it is absolutely necessary to give the latter act such a construction in order that its words shall have any meaning at all.”—Sedg. Stat. & Const. Law, 123.

But it may be regarded as equally well settled, that a subsequent statute, which is clearly repugnant to a prior one, necessarily repeals the former, although it do not do so in express terms : Leges posteriores priores contrarias, ab-rogant. Now, the same provisions, in reference-to giving the courts, having probate jurisdiction, the appointment of public administrators, was in the revisions of 1845 and 1855. It was incorporated in the statute book at the time the special law was passed rendering an election necessary in certain counties. . The mind of the Legislature was especially directed to the general law when the special law was enacted. The special law must, then, be considered as a particular provision, an enactment upon the same subject matter in pari materia, and to be constructed in harmony with the general law. The revision of 1866, in the enactment of the same general law in precise and identical terms, cannot be held as a repeal of the particular special provision by any *535sound or recognized rule of construction. Can it be said that the 6th section of chapter 224 accomplishes this result ? It continues in force all acts and parts ■ of acts of a private, local, or temporary nature, specially applicable to particular cities or counties not repealed by or repugnant to the provisions of the general statutes. The law, then, remains precisely where ,the statute's of 1855 left it. The general law and the special law both stood in full force by legislative enactment and legislative modification." It is evident there is no direct repeal; the presumption is strongly against a repeal by implication, and the manifest intention of the Legislature is indisputably opposed to the abrogation of the special law.

The Constitution wisely places a check on the vicious system of special legislation, but it does not enjoin the repeal of special acts which were in existence before it took effect.

A peremptory mandamus is ordered.

The other judges concur.