43 N.H. 415 | N.H. | 1862
This is a motion in arrest of judgment, on the ground that the proceeding by indictment at common law is taken away by our statute. Rev. Stat., ch. 119.
The motion to quash the indictment was addressed to the discretion of the court, and such a motion may always be properly refused in cases of doubt. Whart. Cr. Law, 240; 1 Chitty Cr. Law, 299; Archb. Cr. Pl. 35; 2 Hawk. P. C., ch. 25, sec. 146. No exception appears to have been taken on this point.
If the proceeding by indictment is taken away by the Revised Statutes, it is by implication only. But the law does not favor a repeal by implication. 1 Bac. Ab., Statute, D.; Bowen v. Lease, 5 Hill 226. It has ever been confined to repealing as little as -possible of the preceding statute. Although two acts are seemingly repugnant, yet they shall, if possible, have such construction that the latter may not be a repeal of the former by implication. Bac. Ab., Statute, D; Foster’s Case, 11 Co. 63; Weston’s Case, Dyer 347; Snell v. Bridgewater Co., 24 Pick. 298. And the same principle applies to the implied repeal of the common law. 1 Bla. Com. 88.
Two cases of such implied repeal are found: First, where the provisions of the later law are so inconsistent with and repugnant to the common law, or some earlier statute, that both can not be in force. Leges posteriores priores contrarías abrogant, is a maxim of ancient date; 1 Co. 25, b; 11 Co. 62; borrowed from the civil law. Dig. 1, 3, 26, and n. 1, 4, 4; 2 Atk. 674; 1 Bla. Com. 88; Commonwealth v. Cooley, 10 Pick. 39. But an older statute will not be repealed by a more recent one, unless the latter expressly negative the former, or unless the provision’s of the two statutes are manifestly repugnant, in which case the earlier enactment will be impliedly modified or
Where there is a difference in the whole purview of two statutes apparently relating to the same subject, the former is not repealed. Bowen v. Lease, 5 Hill 225; King v. Downs, 3 T. R. 569; Dwar. Stat. 674 ; and in Goldson v. Buck, 15 East 371, it was held that two acts relating to the same subject, confirming several powers to be exercised for different purposes, might well subsist together, and the former not be repealed by implication.
Second. If the whole of a former law is revised by a new statute, and the latter appears to be intended to prescribe the only rules which should govern that subject, the particulars of the old law in which they differ will be' regarded as repealed by implication. Davies v. Fairbairn, 3 How. (U. S.) 636; Dexter v. Allen, 16 Barb. 18; Com. v. Cromby, 1 Ashm. 179; Goddard v. Boston, 20 Pick. 410.
If a revising statute embrace all the provisions of antecedent laws on the same subject, and reduce them to one system, such statute virtually repeals the statutes revised, without any expression to that effect, and though there is no repugnancy between them. Goodenow v. Buttrick, 7 Mass. 140; Bartlett v. King, 12 Mass. 537; Ashley, Ap’t, 4 Pick. 21; Commonwealth v. Cooley, 10 Pick. 39; Mason v. White, 1 Pick. 452; Rogers v. Watrous, 8 Tex. 62; Illinois Canal v. Chicago, 14 Ill. 334; Gorham v. Luckett, 6 B. Monroe 146. And where some parts of a revised statute are omitted in the revision, they are not to be revived by construction, but are to be considered as annulled. Ellis v. Paige, 1 Pick. 43; Rutland v. Mendon, 1 Pick. 154; Blackburne v. Walpole, 9 Pick. 97; Towle v. Marett, 3 Greenl. 22; Farr v. Brackett, 30 Vt. 346; Giddings v. Cox, 31 Vt. 609; Laighton v. Walker, 9 N. H. 59; Wakefield v. Phelps, 37 N. H. 304.
And upon the same principle, if a statute revises the whole-subject of an offense, for example, making that a qualified offense which was before absolute, ox;. changing the" Timé or mode of prosecution, or the degree of punishment, it may. bo a repeal of the common, law.
By the statute here in question (Rev. Stat., ch. 119), the health officers may make regulations for the prevention and removal
The health officers are authorized to remove nuisances at the expense of the owner or occupier of the building or inclosure in which they are found; but this is quite consistent with the continuance of the law inflicting punishment for the public wrong on those who are chargeable with nuisances.
A penalty is imposed on those who place or leave in or near any public street any substance liable to become offensive or injurious to the public health; but it is quite apparent that this is a new offense, entirely different from that of nuisance.
The eighth section is the only one which seems to be in conflict with the common law as to nuisances, and here the conflict is only seeming.
“ If any person shall use or occupy any building in the compact part of any town, for a slaughter-house, for trying tallow, or for currying leather, or for the deposit of green pelts or skins, without permission of the health officers, he shall incur a penalty of ten dollars for each month in which the said building shall be so occupied.”
A slaughter-house, and so of the other buildings required by this act to be licensed, is not of course a nuisance. They are all liable to become such by mismanagement or neglect; and it is doubtless for this reason that a license from the board of health is required, that they may be excluded'from compact neighborhoods. Though not nuisances, they are liable to be, under the most careful management, at times offensive to those who reside upon or have occasion to be in the streets where they are situated. Those who keep slaughter-houses in the compact parts of towns without license, are made liable to the penalty imposed by the statute, equally whether their buildings are or are not nuisances; and it would be no defense to a prosecution for the penalty, if the most complete proof could be produced that they were not nuisances.
It would be but a poor and inadequate redress for a nuisance, such as a slaughter-house may become, that the health officers have the right to enter and remove any offensive matters that may be found in such a building, at the expense of the owner.
The compact part of a town is a phrase of somewhat indefinite extent. A slaughter-house may be a nuisance, if ill managed or neglected, though it may be in no sense in the compact part of a town. This statute can have no application to such a house. If prosecuted for the penalty, it would be a perfect defense that the building is not in the compact part of a town, and, consequently, does not come within the provisions of the law. It is not alleged, and consequently does not appear, that the building here in question is in the compact part of the town of Pembroke, and no presumption can be entertained to that effect. It1 is alleged it was near to a public street called Pembroke street, in Pembroke, being a common highway, and near the dwelling-houses of divers good
The common law and this statute may well be in force together as to the same property. A party may have a license to occupy á building as a slaughter-house. This is no license to maintain a nuisance because the health officers are authorized to remove offensive matters from it at his expense, and if the building should be so managed as to become a nuisance, there is no reason why he may not be indicted and punished for the common law offense.
It seems then clear, that this statute is a police regulation, in force and applicable to the compact parts of towns; that it does not cover the whole subject of nuisances, nor of slaughter-house nuisances, if, indeed, it covers any part of either; that the purview and purpose of the common law and of this statute are entirely distinct; that this statute does not necessarily or naturally prevent or interfere with the application of the common law, and is not inconsistent with it, and does not supersede it; and that the offense here charged is not embraced in or affected by the statute.
The motion in arrest must therefore be denied.