28 N.Y.S. 28 | New York Court of Common Pleas | 1894
By the express provisions of the constitution of this state (article 4, § 9), acts of the legislature approved by the governor become effective as laws only upon such approval (Suth. St. Const. § 104); and whenever, in the ascertainment of the rights and obligations of parties, such becomes material, courts may inquire into the precise time when the several laws took effect. Louisville v. Portsmouth Sav. Bank, 104 U. S. 469. In the case last cited Mr. Justice Harlan observed that—
“Courts may, when substantial justice requires it, ascertain the precise hour when a statute took effect by the approval of the executive. * * * We look to the final act of approval by the executive to find when the statute took effect, and, when necessary, inquire as to the hour of the day when that approval was in fact given.”
The legal fiction that the law does not recognize the fractions of a day does not obtain in such a case. Suth. St. Const. § 110. This is in accord with the views expressed by Judge Story in the following terse language:
“I am aware that it is often laid down that in law there is no fraction of a day; but this doctrine is true only sub modo, and in a limited sense, where it will promote the right and justice of the case. It is a mere legal fiction, and therefore, like all other fictions, is never allowed to operate against the right and justice of the case. On the contrary, the very truth and facts, in point of time, may always be averred in furtherance of the right and justice of the case; and there may be even a priority in an instant of time; or, in other words, it may have a beginning and an- end.” In re Richardson, 2 Story, 571, Fed. Cas. No. 11,777.
See, also, Grosvenor v. Magill, 37 Ill. 239; Small v. McChesney, 3 Cow. 19; Clute v. Clute, 3 Denio, 263; Phelan v. Douglass, 11 How. Pr. 193; Rusk v. Van Benschoten, 1 How. Pr. 149; Blydensburgh v. Cotheal, 4 N. Y. 418.
The complaint predicates defendant’s liability upon the facts that at the time of the contraction of the alleged debt, defendant was a trustee of the Importers’ & Traders’ Club, a corporation organ
The statutory construction law (chapter 677, Laws 1892) provides (section 1) that the provisions of that act shall be applicable “to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter,” and (section 31) “that the repeal hereafter, or by this chapter, of any provision of a statute which repeals any provision of a prior statute, does not revive such prior provision.” Obviously, then, if the act of 1892 (chapter 688) amendatory of the stock corporation law of 1890 is affected by the provisions of section 31 of the statutory construction law of 1892, the repeal of the stock corporation law of 1890 did not revive the provisions of section 3 of chapter 228 of the Laws of 1877, and defendant thus would have to. be absolved from liability thereunder. But both laws—the statutory construction law of 1892 as well as the act of 1892 by which the stock corporation law of 1890 was amended and repealed—were approved by the governor on the same day, and each provided that it should take effect immediately; and, as the question of the order of their approval is presented to us by demurrer to the complaint, we have not the advantage of evidence adduced by either parfv to. aid us in determining the order of their priority in respect to executive sanction, and iheir consequent taking of effect. Plaintiff, therefore, contends that, since both' acts took effect on the same day, it must be assumed that they became laws simultaneously, and hence that the act amending and repealing the stock corporation law of 1890 is not affected by the provisions of section 31 of the statutory construction law of 1892, because that section is made applicable only to repeals subsequent to its enactment. Defendant, on the other hand, maintains that, inasmuch as the act of 1892 which amends and repeals the stock corporation law of 1890 is numbered 688, while the statutory construction law of 1892 is numbered 677, the presumption is that the acts were severally approved in the order in which they appear numbered, 677 being first, and 688 later in point of time; and so that the inhibition of the revival of a law repealed by a law in turn also repealed, provided for by section 31 of the statutory construction law of 1892 (chapter 677), applies to the act of 1892 (chapter 688) amending and repealing the stock corporation law of 1890; and that section 3 of chapter 228 of the Laws of 1877 cannot, therefore, be deemed to have been revived by the repeal of section 70 of the stock corporation law of 1890, and was, therefore, not in force at the time of the contraction of plaintiff’s demand against the Importers’ & Traders’ Club.
In Board of Health v. Schmades, 3 Daly, 282, 10 Abb. Pr. (N. S.) 205, it was held at general term of this court (Daly, C. J., and Van Brunt and Loew, JJ., concurring) that when two inconsistent acts