of some of the evils it was intended to provide against.' Long practice may clear away ambiguities, and have a potent influence in the interpretation of a statute. So a long disuse of a statute of a penal nature, implying that it has not been kept in popular remembrance, or an intention of the government not to enforce it, may incline a court to soften its rigors within the limits of judicial discretion. Parts of a statute may become useless and incapable of any operation on account of the repeal or radical change of other and fundamental parts. They should be deemed repealed, because lifeless fragments.3

-

§ 138. Repeals by implication not favored. Such repeals are recognized as intended by the legislature, and its intention to repeal is ascertained as the legislative intent is ascertained in other respects, when not expressly declared, by construction. An implied repeal results from some enactment the terms and necessary operation of which cannot be harmonized with the terms and necessary effect of an earlier act. In such case the later law prevails as the last expression of the legislative will; therefore, the former law is constructively repealed, since it cannot be supposed that the law-making power intends to enact or continue in force laws which are contradictions. The repugnancy being ascertained, the later act or provision in date or position has full force, and displaces by repeal whatever in the precedent law is inconsistent with it.3

221; Hebbert v. Purchas, L. R. 3 P. C. District, 4 Lea, 644; Coats v. Hill, 41 650. Ark. 149; Dobbs v. Grand Junction

1 Mayor, etc. v. Dearmon, 2 Sneed, Water Works, L. R. 9 Q. B. Div. 158; 104. Rex v. Middlesex, 1 Dow. P. C. 117;

2 Leigh v. Kent, 3 T. R. 362. See Kinney v. Mallory, 3 Ala. 626; Iverson post, § 308.

3 Stephens v. Ballou, 27 Kan. 594; Steamboat Co. v. Collector, 18 Wall. 478, 490.

4 Thorpe v. Schooling, 7 Nev. 15. Wood v. United States, 16 Pet. 342; New London, N. R. R. Co. v. Boston, etc. R. R. Co. 102 Mass. 389; Elrod v. Gilliland, 27 Ga. 467; People v. Burt, 43 Cal. 560; Johnson v. Byrd, Hempst. 434; Maddox v. Graham, 2 Met. (Ky.) 56, 76; Mayor, etc. v. Jersey City, etc. R. R. Co. 20 N. J. Eq. 360; Home Ins. Co. v. Taxing

v. State, 52 id. 170; Smith v. Speed, 50 id. 276; Poulson v. Union Nat. Bank, 40 N. J. L. 563; Harrison v. Walker, 1 Ga. 32; Fowler v. Pirkins, 77 Ill. 271; Woods v. Jackson Co. 1 Holmes, 379; Hearn v. Brogan, 64 Miss. 334; Chapoton v. Detroit, 38 Mich. 636; Gates v. Shugrue, 35 Minn. 392; Grant County v. Sels, 5 Oregon, 243; Hurst v. Hawn, id. 275; Forqueran v. Donnally, 7 W. Va. 114; State v. Wish, 15 Neb. 448; Public School Trustees v. Trenton, 30 N. J. Eq. 667; State v. Yewell, 63 Md. 120; Hirsch

Subsequent legislation repeals previous inconsistent legislation whether it expressly declares such repeal or not. In the nature of things it would be so, not only on the theory of intention, but because contradictions cannot stand together. The intention to repeal, however, will not be presumed, nor the effect of repeal admitted, unless the inconsistency is unavoidable, and only to the extent of the repugnance. Implied repeals

are not favored.' One statute is not repugnant to another unless they relate to the same subject and are enacted for the same purpose. When there is a difference in the whole purview of two statutes apparently relating to the same subject, the former is not repealed. Such is the general doctrine, in which all the cases concur. In its practical administration other rules obtain suggested by the nature of the cases which occur, and the forms of legislation raising the question of repeal. There is an obvious difference in repealing effect between negative and affirmative statutes. We will endeavor to elucidate this distinction.

§ 139. Negative and affirmative statutes.-A negative statute is one expressed in negative words; as, for example: "No person who is charged with an offense against the law shall be punished for such offense unless he shall have been duly and legally convicted," etc. "No indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved," etc. An affirmative statute is one enacted in affirmative terms. Alderson, B., observed in

atory of the act repealed. Hem- Commonwealth, 6 Watts & S. 209; strat v. Wassum, 49 Cal. 273. Williams v. Potter, 2 Barb. 316; Bowen v. Lease, 5 Hill, 221; People v. Deming, 1 Hilt. 271; Smith v. Hickman, Cooke, 330; Buchanan v. Robinson, 3 Baxt. 147; Central Iowa R'y Co. v. Supervisors, 67 Iowa 199; Stephens v. Ballou, 27 Kan. 594; Elizabethtown, etc. R. R. Co. v. Elizabethtown, 12 Bush, 233; Van Hagan, Ex parte, 25 Ohio St. 426; Montgomery v. Board of Education, 74 Ga. 41; Red Rock v. Henry, 106 U. S. 596; Arthur v. Homer, 96 U. S. 137; Dugan v. Gittings, 3 Gill, 138; Chew Heong v. United States, 112 U. S. 536; Abernathy v. State, 78 Ala. 411; Herr v. Seymour, 76 id. 270; Cook v. Meyer Bros. 73 id. 580; Jackson v. State, 76 id. 26; Tracy v. Tuffly, 134 U. S. 206.

1 Brown v. McCormick, 28 Mich. 215; Breitung v. Lindauer, 37 id. 217; Davies v. Creighton, 33 Gratt. 696; Succession of Hebert, 5 La. Ann. 121; Nixon v. Piffet, 16 id. 379; Desban v. Pickett, id. 350; Central R. R. v. Hamilton, 71 Ga. 461; Hockaday v. Wilson, 1 Head, 113; Cate v. State, 3 Sneed, 120; Kinney v. Mallory, 3 Ala. 626; Saul v. His Creditors, 5 Martin (N. S.), 569; S. C. 16 Am. Dec. 212; United States v. Twenty-five Cases of Cloth, Crable, 356; Ryan's Case, 45 Mich. 173; State v. Alexander, 14 Rich. 247; Van Rensselaer v. Snyder, 9 Barb. 302, 308; Higgins v. State, 64 Md. 419; State v. Watts, 23 Ark. 304; Collins v. Chase, 71 Me. 434; Harford v. United States, 8 Cranch, 109; Reg. v. Inhabitants, etc. 2 Q. B. 84; Wood v. United States, 16 Pet. 342; Brown v. County Commissioners, 21 Pa. St. 37; Street v.

2 The King v. Downs, 3 T. R. 569; Bowen v. Lease, 5 Hill, 221, 225; United States v. Claflin, 97 U. S. 546; United States v. Gear, 3 How. 120; Miller v. Edwards, 8 Colo. 528.

Mayor of London v. The Queen,' that "the words 'negative' and 'affirmative' statutes mean nothing. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same." If a statute contrary to a former one be expressed in negative words it operates to repeal the former; so expressed it takes away any different common-law right or remedy. In that form it is prohibitory and generally mandatory. An act providing that "no corporation" shall interpose the defense of usury repeals the laws against usury as to corporations. An act that "no beer" shall be sold without a license abrogates any previous exemptions from licensing regulations."

The repugnance of any previous statute contrary to an enactment in negative words is very readily seen. Not so in the case of affirmative statutes. It is upon such enactments that debatable questions of repeal more frequently arise. The repeal in either case results from repugnancy, but this is not so easily perceived when the repealing statute is affirmative in form. When it prescribes an exclusive rule it implies a negative, and repeals whatever of existing law stands in the way of its operation. The intention to make the enactment exclusive may be deduced from the nature of the subject, and its necessary operation in comparison with the necessary effect of prior laws. A statute in derogation of an existing statute will be strictly construed in consequence of implied repeals being regarded with disfavor. So an intention to change the rule of Gas C. Co. v. Clarke, 11 C. B. (N. S.) 814.

113 Q. B. 33.

2 Bac. Abr. tit. Statute, G.

3 Hurford v. Omaha, 4 Neb. 336; Bladen v. Philadelphia, 60 Pa. St. 464; State v. Smith, 67 Me. 328; People v. Allen, 6 Wend. 486; Koch v. Bridges, 45 Miss. 247; Rex v. Newcomb, 4 T. R. 368; Rex v. Leicester, 9 D. & R. 772; 7 B. & C. 12; Reg. v. Fordham, 11 A. & El. 73; Bowman v. Blyth, 7 El. & Bl. 47; Williams v. Swansea C. Nav. Co. L. R. 3 Ex. 158; Liverpool Borough Bank v. Turner, 2 De G. F. & J. 502; Great Central

Ballston Spa Bank v. Marine Bank, 16 Wis. 120; Curtis v. Leavitt, 15 N. Y. 1, 85.

5 Read v. Storey, 6 H. & N. 423. See Strauss v. Heiss, 48 Md. 292.

6 Commonwealth v. Knapp, 9 Pick. 496; State v. Norton, 23 N. J. L. 33; Melody v. Reab, 4 Mass. 471; Dwelly v. Dwelly, 46 Me. 377; Burnside v. Whitney, 21 N. Y. 148; Gibson v. Jenney, 15 Mass. 205; Wilbur v. Crane, 13 Pick. 284; Bailey v. Bryan,

the common law will not be presumed from doubtful statutory provisions; the presumption is that no such change is intended unless the statute is explicit and clear in that direction.' The common law will be held no further abrogated than the clear import of the language used in the statute requires.? A statute providing a remedy for an illegal tax was held not embraced in a general repeal of all laws relating to assessments in an act prescribing and regulating the method of assessing taxes.3

§ 140. Repealing effect of affirmative statutes conferring power and regulating its exercise. In organizing the powers of government there is a definite and precise scheme or plan, and a unity and singleness of means employed to carry it into effect. There is but one chief magistrate, one legislature, one judiciary. There is but one revenue system, one police system. Public duties are defined and imposed on officers designated. with certainty, without duplication or confusion, except by inadvertence. The exercise of power by one over another must be authorized by law; its possession and scope will be such as is granted; when granted, if the mode of its exercise be also prescribed, it must be followed. In the grants, and in the regulation of the mode of exercise, there is an implied negative; an implication that no other than the expressly granted power passes by the grant; that it is to be exercised only in the prescribed mode. Affirmative words may and often do imply a negative, not only of what is not affirmed, but of what

3 Jones (N. C.), 357; Schuyler v. Mercer, 4 Gilm. 20; Lock v. Miller, 3 Stew. & Port. 13; White v. Johnson, 23 Miss. 68; Clarke v. State, id. 261; Williams v. Potter, 2 Barb. 316; Peyton v. Moseley, 3 T. B. Mon. 77, 80; Street v. Commonwealth, 6 Watts & S. 209; Morlot v. Lawrence, 1 Blatch. 608.

R. & Can. Co. pros. v. Commissioner, 37 N. J. L. 240; Rex v. Northleach & W. Road, 5 B. & Ad. 978; Janney v. Buell, 55 Ala. 408; Lessee of Moore v. Vance, 1 Ohio, 1-10; Phillips v. Ash, 63 Ala. 414; Excelsior Petroleum Co. v. Embury, 67 Barb. 231; Rochester v. Barnes, 26 Barb. 657; Johnston's Estate, 33 Pa. St. 511; Townsend's Case, Plowd. 113; State, N. Hudson Co. R. R. Co. pros. v. Kelley, 34 N. J. L. 75; Evansville v. Bayard, 39 Ind. 450; 3Shear v. Commissioners of Colum- North Canal St. Road Case, 10 Watts, bia, 14 Fla. 146. 351; New Haven v. Whitney, 36 Conn. 373.

1 People v. Palmer, 109 N. Y. 110. 2 Fitzgerald v. Quann, 109 N. Y. 441.

4 People v. The Mayor, etc. of N. Y. 32 Barb. 102, 121; State, the United