D. Repeal by Revision

Revision of statutes implies their review with the purpose of dropping the superfluous portions. Consequently the general rule is that whatever is omitted from the revised act is repealed. The revised act displaces the former one whether it be to the same effect or of greater or less scope. The same result is accomplished in many states which amend acts by “re-enacting" them "to read as follows." Unlike ordinary amendments then, a revision repeals by implication the previous statutes on the subject even though there be no repugnancy.1 There is no need of an express repealing clause so far as the act revised is concerned. The presumption that repeal is implied is sufficient. The portion that is re-enacted in the revision has continuous operation but all else falls.

The difficulty with acts of this sort is not to determine their effect but to know whether in any particular case an act is intended as a revision of all other acts on the subject or not. Where an act declares itself a revision and the body bears out the claims of the title, it is clear that the rules should apply. But the intent of the legislature in a revising act is not always clear.3 It may be to revise certain of the laws on the subject

1 Mack v. Jastrow, 58 P. 372 (Cal. 1899).

2 U. S. v. Bowen, 100 U. S. 508 (1879); Cambria Iron Co. v. Ashburn, 118 U. S. 54 (1886); U. S. v. Lacher, 134 U. S. 624 (1890); State ex rel. Gaston v. Shields, 130 S. W. 298 (Mo. 1910). But a contrary rule seems to be followed in Louisiana, Miller v. Mercier, 3 Martin (N. S.) 236, and the Minnesota Supreme Court declares that there is no presumption that revised statutes are intended to alter the existing law. In re Lockey's Estate, 128 N. W. 833 (Minn. (1910).

3 Chichester v. N. H. Fire Ins. Co., 46 A. 151 (Conn. 1900); Combs v. Nelson, 91 Ind. 123 (1883); Commonwealth v. Carter, 55 S. W. 701 (Ky. 1900); Meriwether v. Overly, 129 S. W. 1 (Mo. 1910).

and have the new act stand as a supplement to some others. In all such acts the intent should be clearly expressed by the draftsman so that the courts may not be confronted with doubt as to whether the legislature meant to make the new act the whole of the law on the subject.

E. Repeal of Repeal

The common law rule as to the effect of repealing a repealing statute is that the original act revives, and this is true even though the repeal is only one by implication. In the United States, constitutions and general statutes have modified that standard. In many state constitutions the language used is to the effect that no law shall be revived, altered or amended by reference to its title only, but the act revived and sections altered shall be enacted and published at length.2

In some states it is maintained that these rules as to revival do not apply to the rules of the common law and that when a statute changing them is repealed the former common law rule at once comes into force again,3 but the constitutional rule would apply where only acts of the legislature were involved. A repeal of the

1 See discussion, Baum v. Thoms, 50 N. E. 357 (Ind. 1898), and cases cited.

2 Ala. 45; Ark. 5, 23; Cal. 4, 24; Col. 5, 24; Fla. 3, 16; Ida. 3, 18; Ill. 4, 13; Ind. 4, 21; Kan. 2, 16; Ky. 51; La. 32; Mich. 4, 25; Miss. 61; Mo. 4, 33 and 34; Mont. 5, 25; N. D. 64; Neb. 3, 11; Nev. 4, 17; N. J. 4, 7, 4; Ohio 2, 16; Okla. 5, 57; Ore. 4, 22; Pa. 36; Tex. 3, 36; Utah 6, 22; Va. 52; Wash. 2, 37; W. Va. 6, 30; Wyo. 3, 26. Similar provisions in Ga. 3, 7, 17, Md. 3, 29 and

Tenn. 2, 17.

3 Baum v. Thoms, 50 N. E. 357 (Ind. 1898).

4 Yolo County v. Colgan, 64 Pac. 403 (Cal. 1901), and Grand

Rapids and I. R. Co. v. Cheboygan Circuit Judge, 123 N. W. 591 (Mich. 1909).

repealing act would not under these constitutions work revival of a statute.1 Lacking regulation by constitution or law, the common law rule as to revival applies even when only statutes are in question.2

In many states a general statute law has been relied upon to raise a barrier against implied revival, but in some, as in the case of constitutional provisions, the limitation applies only to revivals of previous acts of the legislature and not to revivals of the common law. No distinction is made between revivals due to express and to implied repeals of repealing acts of the legislature.1 Further, when the repealing act is passed with the intent of substituting another law the question of revival does not arise. But where the act repealed merely removes a law which made an exception to a former general law the courts hold that the law constituting an exception was not itself a repealing act but only a suspension of the general law for that case, and therefore the repeal of the exception makes the general law applicable notwithstanding a statute against implied revival."

1 But to the contrary, see a decision by Sup. Ct. of New Jersey, Wallace v. Bradshaw, 54 N. J. L. 175 (1891), and similar, Zickler v. Union Bank, etc., 104 Tenn. 277 (1909).

2 Chard v. Holt, 32 N. E. 740, 741 (N. Y. 1892). Section 82 of ch. 427 of laws of 1855 was by express repeal abrogated by sec. 1, ch. 285, laws of 1862. Sec. 1, ch. 280, laws of 1870, repealed the latter. Held that the law of 1855 revived. New York courts hold, however, that a general law is enough to prevent automatic revival. People v. Steuben County, 75 N. E. 1108 (N. Y. 1905). 3 So in State v. Sawell, 83 N. W. 286 (Wis. 1900); see also, Rice v. Commonwealth, 22 Ky. L. R. 1793 (1901).

4 Milne v. Huber, Fed. Cas. 9617 (1843).

5 Commonwealth v. Churchill, 2 Met. 118 (1840).

6 State v. Sawell, 83 N. W. 296 (Wis. 1900); Dykstra v. Holden, 115 N. W. 74 (Mich. 1908); State v. Wirt County Court, 59 S. E. 884 (W. Va. 1907).

CHAPTER XI

THE CLAUSE OF TAKING EFFECT

The usual place for the clause of taking effect is at the end of the act. Like the repealing clause it is not necessary for the validity of a law. A possible exception is found in Kansas where the constitution provides that "the legislature shall prescribe the time when its acts shall be in force and shall provide for the speedy publication of the same, and no law of a general nature shall be in force until the same be published." 1

The English rule for the taking effect of statutes was determined by the fact that the enrolled bill was the final test of what was the law. Only the date of the beginning of the session appeared upon the roll; consequently, unless otherwise specified, all laws operated from the beginning of the session. The act 33 Geo. III, ch. 13, provided that a certain parliamentary officer should endorse on every act of Parliament "the day, month and year when the same shall have passed and shall have received the royal assent and such endorsement shall be taken to be a part of such act and to be the date of its commencement where no other commencement shall be therein provided." 2 Since that time the rule in England

1 Const. 1859, 2, 19. It is held that “this provision plainly requires that the legislature shall fix a single definite time when its act as an entirety shall become law," and that an act parts of which go into effect at different times is void. Miami Co. Comr's v. Hiner, 54 Kan. 334 (1894); Finnigan v. State, 54 Kan. 420 (1894).

2 The King v. The Justices of Middlesex, 2 Barnewell and Adolphus, 818, 821 (1831).

is substantially the same as in this country. In North Carolina, however, the old rule is still followed. All acts take effect from the first day of the session except where a different date is declared.1

In America, if no time to go into effect is stated in the law, reliance will be had upon the constitutional rules, if any, or upon general statutory provision or upon custom.2 The majority of the states regulate the going into force of laws by constitutional provisions. On hardly any other point is there greater variety of practice. Two states put the law into effect immediately on publication. Others provide a delay, presumably to justify the axiom that ignorance of the law excuses no one. In the states which have adopted the referendum the period gives opportunity for the filing of a petition for a popular vote upon the bill. In one state the period of delay is forty days after passage, in another sixty,5 in another

4

1 Hamlet v. Taylor, 50 N. C. 36 (1857); Weeks v. Weeks, 40 N. C. 111 (1847). It is held in the former case that "passage" means passage by the two houses of the legislature, not "ratified" by the executive. Most North Carolina laws are now in terms to operate from "ratification."

2 Various forms of the clause of taking effect are found; sometimes several are used in a single state. The usual forms are: "This act shall take effect immediately"; "This act shall take effect and be in force from and after its passage" or "from and after the date of its approval" or "its enactment." The first form is followed in New Jersey and New York. California uses the first three forms; Arkansas the last three. In Michigan the favorite wording is: "This act is ordered to take immediate effect," and in North Carolina, "This act shall be in force from and after its ratification,”if the law is not to follow the rule of referring to the first day of the session.

3 Ind. 4, 28 (1851); Wis. 7, 21 (1848).

4 Tenn. 2, 20 (1870).

5 Miss. 75 (1890).