« SebelumnyaLanjutkan »
is a principle that a general statute, without expenses for the previous month have been negative words, will not repeal, by implication audited, the board of each state institution from their repugnancy, the provisions of a may make requisition for warrants to pay the former one which is special or local, unless bills so audited, etc. Before this amendthere is something in the general law, or in ment, a proper pro rata of the biennial approthe course of legislation upon its subject-mat- priation to state institutions was drawn quarter, that makes it manifest that the legisla-terly in advance. By the old method of drawture contemplated and intended a repeal. ing this fund, under section 2070, large When the legislator frames a statute in gen- amounts of money could be drawn from the eral terms, or treats a subject in a general state treasury in advance, so as to deplete manner, it is not reasonable to suppose that it for a time, while the money drawn might he intends to abrogate particular legislation, lay idle in banks, and thus cause the state to the details of which he had previously giv- some financial embarrassment.
This may en his attention, applicable only to a part of have been the fault sought to be remedied by the same subject, unless the general act shows the enactment. All state institutions have a plain intention to do so.” Ex parte Crow their regular expenses, accruing at regular inDog, 109 U. S. 570, 3 Sup. Ct. 396, 27 L. Ed. tervals. The biennial appropriations are sup1030; Sedg. St. & Const. Law, p. 97; Malloy posed to be sufficient to cover these expenses, V. Com., 115 Pa. St. 25, 7 Atl. 790; 23 Am, & and the provision was probably made so that Eng. Enc. Law, pp. 424, 425; Suth. St. Const. § such bills could be met monthly, after they 147. The university act had special reference were audited, and thereby preserve the reto the removal of the University of Utah, and maining fund in the hands of the state treas its establishment on the site granted by con- urer, thus subserving all legitimate purposes. gress, and to plat the grounds, procure plans, In construing a statute, the amendment thereerect necessary buildings thereon, and to to should be read in connection with the secequip and furnish the same as a state univer- tion amended. Endlich on Interpretation of sity; and the sum of $200,000 was appropri- Statutes (section 294) says: “No doubt, a statated for that purpose, to be drawn at such ute which is amended is thereafter, as to all times as the regents thought proper, not to acts subsequently done, to be construed as if exceed $50,000 to be drawn during or after the amendment had always been there, and the year 1899, and a like sum during or after the amendment itself so thoroughly becomes 1900. The regents are directed by the act a part of the original statute that it must be to expend the sum appropriated, or so much construed in view of the original statute as it thereof as is necessary, for this purpose. It stands after the amendment is introduced, was doubtless within the contemplation of the and the matters superseded by the amendlegislature that contracts could be made to ment eliminated." Had section 2070 origbetter advantage, and material and labor pro- inally read as it is amended, it would not reacured at a greater saving to the state, when sonably be contended that the enactment of cash could be paid at the maturity of the ob- section 7 of chapter 5 repealed it, as they do ligations entered into by the regents. By not apply to the same subject-matter. Chaprequiring the regents to comply with the law, ter 5 deals with a special appropriation for a and to draw the money at such times as they special, temporary, definite purpose, such as may deem proper, the legislature intended to the construction of buildings for an expensive vest in such board a large discretion as to the state university, and the laying out of grounds, amount of money to be drawn, and when it which, when completed, ends the object of should be drawn, in order to meet the various the statute. Chapter 53 deals with a general expenses and obligations that they were re subject, concerning monthly distributions of quired to incur. The appropriation was made biennial appropriations covering the expendifor a special, temporary, and specific purpose. tures of all public institutions in the state. The plan was to be carried out in a special One is specific, temporary, and special, coverway, by a special board. When he object | ing a definite, special subject, and having a was accomplished, the improvements made, special, temporary object and duration; the and the appropriation exhausted, the act so other being a general act, having no relation far ceased to be operative. The act applies to the same subject or purpose, and being to no other board, building, or fund. Nor are continuous in its operation. The two provithe payments to be made biennially. At the sions have no repugnancy to each other, and end of the act, as if to emphasize the purpose are readily harmonized. On this subject. and object of it, and render it operative as Sutherland on Statutory Construction (section against any other provision of the statute, the 138) says: “One statute is not repugnant to legislature made a provision that "all laws in another unless they relate to the same subconflict herewith shall not be construed to ject, and are enacted for the same purpose. prevent the carrying out of the provisions of When there is a difference in the whole purthis act." Sess. Laws 1899, c. 5, $ 9. Chapter view of two statutes apparently relating to 53, enacted a few days later, amended section the same subject, the former is not repealed." 2070 of the Revised Statutes in relation to In the case of Crane v. Reeder, 22 Mich. 322, state institutions drawing their biennial ap- It is said: "Where there are two acts or pro propriations, and provided that on the 1st of visions, one of which is special and particular, each month, or as soon thereafter as bills for and certainly includes the matter in question,
and the other general, which, if standing satisfied that, in so far as they have gone, alone, would include the same matter, and they lave not exceeded their authority, but thus conflict with the special act or provision, were acting within the clear provisions of the the special must be taken as intended to con- statute in making the demand and requisition stitute an exception to the general act or pro- in question. The judgment of the district vision, especially when such general and spe. court in overruling the denurrer, and in dicial acts are contemporaneous, as the legis- recting a peremptory writ of mandate to islature are not presumed to have intended a sue as prayed, is affirmed. Let the writ issue conflict." Black, Interp. Laws, p. 116.
accordingly. It is also contended that the later act passed at the same session repeals the previous one. BARTCH, C. J., and BASKIN, J., concur. But this does not necessarily follow. The repeal depends upon the intention of the legislative body as expressed in the act. The fact
(6 Ariz. 423) that the later act is different from the former YAVAPAI COUNTY v. McCORD et al. one is not sufficient. It must further appear
(Supreme Court of Arizona. Nov. 1, 1899.) that the later act is contrary to or inconsistent
MUNICIPALITIES-COUNTY BONDS-REFUNDwith the former, in order to justify the con
ING-DEMAND-VALIDATING tention that the first is repealed. If the later 1. Act Cong. June 6, 1896, having validated act covers part or all of the provisions of
railroad aid bonds theretofore issued by counties
in Arizona pursuant to territorial legislation, no the former, it may not effect a repeal, for it
original invalidity in such bonds, or the enactmay then be merely affirmative or auxiliary ment under which they were issued, is available to the former. The rule that if, by fair and to prevent their being refunded.
2. Under Territorial Act March 19, 1891, aureasonable interpretation, acts which
thorizing any person holding county bonds to seemingly contradictory may be enforced, and
exchange them for bonds issued under the provimade operative and harmonious, without ob- sions of the act, no demand by the county auscurity or conflict, both will be upheld, and thorities on the loan commissioners for the
funding of the bonds was necessary to authorize the later will not be regarded as repealing the
them to do so, a demand from the holders alone former by construction or intendment. In being sufficient. Sutherland on Statutory Construction (sections 3. Act Cong. June 6, 1896, authorizing "fund152, 153) it is said: “The presumption is
ing of all outstanding obligations of" Arizona
"until January 1, 1897," limits the power to obstronger against implied repeals where proyi. | ligations outstanding prior to such date, but sions supposed to conflict are in the same act, does not terminate the power of county to sell or were passed at nearly the same time. In funding bonds after such date. the first case it would manifestly be an in
Appeal from district court, Maricopa counadvertence, for it is not supposable that the
ty; before Justice Webster Street. legislature would deliberately pass an act with
Suit by Yavapai county against M. H. Mcconflicting intentions. In the other case the
Cord and others. There was a decree for presumption rests on the improbability of a
defendants, and plaintiff appeals. Affirmed. change of intention, or, if such change has
Herndon & Norris, for appellant. occurred, that the legislature would express
C. F. it in a different act without an express repeal
Ainsworth, Atty. Gen., and T. W. Johnston of the first." This authority has a pertinent
and L. H. Chalmers, for appellees. bearing, as also does section 147 of the same work, inasmuch as no express words of repeal
DAVIS, J. By the provisions of an act of are found in the later enactment, while in the the legislative assembly of the territory of former act, passed at the same session, there
Arizona entitled "An act to aid in the conis contained a clause which provides that "all
struction of a railroad in Yavapai county," laws in conflict herewith shall not be con- approved March 12, 1885, there was authorizstrued to prevent the carrying out of the pro
ed to be issued, on the faith and credit of visions of this act." Sess. Laws 1899, c. 5, § Yavapai county, negotiable bonds in the 9. This clause is unusual, and was evidently amount of $4,000 per mile for the construction inserted for a purpose. It does not in words of a railroad from a point on the line of the repeal any other law, but affects the construc- Atlantic & Pacific Railroad, near Chino station of all laws in conflict, and disarms them tion, in Yavapai county, to the city of Presfrom any repealing effect upon the act. It is cott, and thence to the northern boundary of seemingly a declaration on the part of the Maricopa county. The Prescott & Arizona legislature that the act was enacted for a
Central Railroad Company, accepting the special, particular, and temporary purpose, provisions of this act, constructed a railroad, and that it should be enforced according to in accordance therewith, from a junction its terms, without regard to any other law in point near Chino station to the city of Pres. force.
cott, and received therefor the negotiable We hold it was the exclusive province of bonds of Yavapai county to the number of the legislature to decide how, when, and by 292, and in the denomination of $1,000 each. whom money should be drawn by the regents Interest was paid on these bonds from the of the University of Utah under the provisions date of their issue, in 1886, to the year 1893, of chapter 5. A discretion was intended to inclusive, and 27 of said bonds were redeembe vested in the board of regents, and we are ed and paid by Yavapai county. On the 17th
day of September, 1897, the territorial loan heretofore issued under the authority of the commissioners took up 203 of said bonds in legislature of said territory, as hereinbefore exchange for territorial funding bonds, and, authorized to be funded, are hereby confirmso far as the record shows, the remainder of ed, approved and validated, and may be fundsaid original issue is still outstanding. On Oc- ed as in this act provided until January 1, tober 1, 1897, Yavapai county commenced an 1897: provided, that nothing in this act shall action in the court below to enjoin the de- be so construed as to make the government fendants, who were, respectively, governor, of the United States liable or responsible for secretary, and auditor of the territory, acting the payment of any of said bonds, warrants, as loan commissioners, from funding or ex- or other evidences of indebtedness by this act changing any of the aforesaid outstanding approved, confirmed and made valid, and aurailroad bonds. The injunction was asked thorized to be funded. Under that act, all for upon three grounds, as stated in the bonds which had been issued by virtue of the amended complaint: First, that the act of territorial legislative enactments were permitthe territorial legislature under which said ted to be funded in territorial funding bonds. bonds were issued was in conflict with the The act of congress aforesaid made valid all statutes of the United States, and that the of the bonds which were issued under the said bonds are, for that reason, illegal and legislative act of March 12, 1885.” In sup void; 'second, that no official demand had port of this construction, and as bearing upbeen made upon the loan commissioners by on the intention of congress and the exigenthe authorities of Yavapai county for the cies which the act of June 6, 1896, was defunding of said bonds; third, that, under the signed to meet, the court, in that case, cited act of congress approved June 6, 1896 (29 Stat. the memorial adopted by the territorial legis262), the power and authority of the loan lative assembly, in 1895, setting forth that, commissioners to fund said bonds terminated under various acts of the assembly, the counon January 1, 1897. Upon the full hearing of ties were authorized to and did issue railroad the case, the lower court rendered judgment aid bonds, which were sold in the open mardenying the injunction and dismissing the ket at their face value, and were then held complaint, from which judgment the plaintiff at home and abroad by bona fide purchasers; has appealed to this court.
that the validity of these bonds, though quesInasmuch as the appellant rested his claim tioned, was acknowledged by the payment of to equitable relief solely upon the grounds interest thereon; that a repudiation of the above stated, it follows that the relief sought same would work a great hardship to the was properly denied, unless the right thereto | bolders, and affect the credit of the territory; could be sustained upon some one or more of and therefore the legislative assembly urged those grounds. Whether or not there is upon congress the propriety of passing such merit in any one of them is to be determined, curative legislation as would protect the holdin our judgment, by the correct interpretation ers of all bonds issued under authority of its of the several congressional and territorial acts, the validity of which had been acknowlfunding acts. These acts have been recently edged, and relieve the people from the disasreviewed and construed by this court in the trous effects of repudiation. Since the case cases of Gage v. McCord, 51 Pac. 977, Cocon- of Coconino Co. v. Yavapai Co. was decided ino Co. v. Yavapai Co., 52 Pac. 1127, and by this court the important features of this Bravin v. Mayor, etc., 56 Pac. 719, and all funding legislation have received interpretaof the questions necessarily involved in the tion from the highest judicial authority of case at bar have been fully decided. In Co- the land. In Utter v. Franklin, 172 U. S. conino Co. v. Yavapai Co., supra, the court, 416, 19 Sup. Ct. 183, which went from this referring to these same bonds, said: "Wheth- court on appeal, Mr. Justice Brown, deliverer or not the act of March 12, 1885, author- ing the opinion, expressed the following views izing Yavapai county to issue bonds for the upon the effect to be given the congressional construction of said railroad, was within the enactment of June 6, 1896: "Its evident purpower of the legislature to enact, or whether pose was to authorize the funding of all outthe bonds that were issued in pursuance of standing bonds of the territory and its musaid act were originally valid or not, this nicipalities, which had been authorized by court does not feel called upon to decide; for legislative enactments, whether lawful or not, the view we take of the matter is that the provided such bonds had been 'sold or exvalidity of the bonds is to be determined by changed in good faith, in compliance with the act of congress approved June 6, 1996, the terms of the act of the legislature by section 2 of which is as follows: "That all which they were authorized.' The second bonds and other evidences of indebtedness section deals with the original bonds which heretofore funded by the loan commissioners had not been theretofore funded, and provides of Arizona, under the provisions of the act of that all such as had been theretofore issued congress approved June 25, 1890, and the act under the authority of the legislature, and amendatory thereof and supplemental there which by the first section were authorized to to approved August 3, 1894, are hereby declar- be funded, should be confirmed, approved, ed to be valid and legal for the purposes for and validated, and might be funded until which they were issued and funded; and all January 1, 1897. We think it was within bonds and other evidences of indebtedness the power of congress to validate these bonds
Their only defect was that they had been is- exercise their funding powers, was fully consued in excess of the powers conferred upon sidered in the case of Gage v. McCord, supra, the territorial municipalities by the act of and in that case we held that the limit of June 8, 1878. There was nothing at that time January 1, 1897, mentioned in the act, was to have prevented congress from authorizing intended to be restrictive only of the indebtsuch municipalities to issue bonds in aid of edness which could be funded, and made the railways, and that which congress could have act applicable to such obligations as existed originally authorized it might subsequently and were outstanding prior to that time, but confirm and ratify.
* Construing that it did not terminate on that date the authis [act] in the light of the surrounding cir- thority of the territorial officers to fund said cumstances, and particularly in view of the obligations. We do not understand that this memorial, it is entirely clear that it was in- construction is inconsistent with any views tended to apply to bonds issued under author- expressed by the supreme court of the United ity of the legislature, and purporting on their States in the case of Utter v. Franklin. Upon face to be legal obligations of the county, none of the grounds stated in his amended whether in fact legal or not; and, to put the complaint could the appellant have been enmatter still further beyond question, they are titled to the relief prayed for, and the injuncexpressly declared to be legal and valid.”
tion was properly refused. The judgment of The bonds issued by Yavapai county under the district court is affirmed. the act of March 12, 1885, having thus been since approved and validated by congress, no SLOAN and DOAN, JJ., concur. original invalidity of the bonds, or of the legislative enactment under which they were issued, could be of any avail to the appellant
(6 Ariz. 418) in this case.
BAKER v. FLEMING et al. The point involved in the second ground
(Supreme Court of Arizona. Nov. 1, 1899.) upon which the appellant based his right to
VENDOR'S LIEN. an injunction, namely, that no official demand
Where land is granted by an absolute conhad been made upon the loan commissioners veyance, the grantor has no implied equitable by the authorities of Yavapai county for the lien thereon for the unpaid purchase money. funding of these bonds, was passed upon in
Appeal from district court, Yavapai counBravin v. Mayor, etc., supra, in which the
ty; before Justice Richard E. Sloan. court said: “The act of June 25, 1890 (being
Action by A. E. Baker against S. J. Flemthe act of congress approving, with amend
ing and others. From a judgment for dements, the funding act of Arizona), was ut
fendants, plaintiff appeals. Affirmed. terly silent as to the right of the holder of any warrants or other outstanding indebt- Ross & O'Sullivan and E. M. Sanford, for edness to compel either the municipal au
appellant. Andrews & Ling and H. D. Stockthorities or the loan commissioners to take er, for appellees. any steps required for the funding of such indebtedness. It was doubtless for this rea- DAVIS, J. On the 14th day of July, 1896, son that the territorial act of March 19, 1891, the appellant, A. E. Baker, sold and conveyed provided that'any person holding bonds, to S. J. Fleming and R. T. Tustin, by deed warrants or other evidence of indebtedness absolute, certain mining property situated in of the territory or any county, municipality Yavapai county, receiving part of the puror school district within the territory,
chase price thereof in cash, and the written may exchange the same for the bonds issued obligations of the said Fleming and Tustin under the provisions of this act,' etc. As the for the residue. No express lien was reservlaw stood, therefore, after March 19, 1891, it ed, however, for the unpaid portion of the was the duty of the loan commissioners to purchase money. On or about the 20th day fund the outstanding indebtedness of mu- of August, 1896, the Providence Gold-Mining nicipalities–First, upon the official demand Company took a conveyance of said property of municipal authorities; second, upon the from Fleming and Tustin, with full knowlapplication of the holders of such outstanding edge on its part of the existence of the said bonds, warrants, and other evidences of in- purchase-money
indebtedness to Baker. debtedness as had not been funded.” A de- Thereafter, in a suit brought by Baker, it mand from the holders alone upon the loan was sought to establish and enforce a vencommissioners for the funding of these Yava- dor's lien against the property for the balpai county railroad bonds would have been ance of the purchase money owing to him. sufficient, in itself, to have entitled the hold- From the judgment of the district court deers to an exchange of such bonds for territo- nying his right to such lien he has proserial funding bonds, and this seems to have cuted this appeal. been the view taken of these provisions of The sole question presented for decision the law by the supreme court of the United here is whether a grantor of real estate by States in Utter v. Franklin.
absolute conveyance has an implied equitable The question as to whether or not the act lien thereon for the unpaid purchase money. of June 6, 1896, placed a limitation upon the If such a lien arises at all, it must, on printime in which the load commissioners could ciple, prevail alike against the grantee himself and all subsequent purchasers with no- "It has always struck me, considering this tice. The doctrine of the English court of subject, that it would have been better at chancery, which recognizes and upholds such once to have held that the lien should exist a lien, has been adopted in some of the states, in no case, and the vendor should suffer the rejected in some, and remains undecided or consequences of his want of caution; or to doubtful in others. There seems to have have laid down the rule the other way so been no settled adjudication of the question distinctly that a purchaser might be able to in this territory, and we therefore feel at know, without the judgment of a court, in liberty to determine it as one of first impres- what cases it would and in what cases it sion. A considerable diversity of opinion ex- would not exist." Mackreth v. Symmons, 15 ists concerning the origin of the vendor's Ves. 329. "No other single topic belonging to lien. It has been accounted for as a trust, the equity jurisprudence," says Mr. Pomeroy, as an equitable mortgage, as arising from “has occasioned such a diversity, and even natural equity, and as a contrivance of the discord, of opinion among the American chancellors to evade the unjust rule of the courts as this of the grantor's lien. Upon early common law by which land was free nearly every question that has arisen as to from the claims of simple contract creditors. its operation, its waiver or discharge, the parThe grounds upon which the doctrine seems ties against whom it avails, and the parties generally to have been rested in the earlier in whose favor it exists, the decisions in difEnglish cases were those of natural equity, ferent states, and sometimes even in the same a supposed intention of the parties, and a state, are directly conflicting." 3 Pom. Eq. trust arising out of the unconscientiousness Jur. § 1251. The doctrine has, from the beof the vendee's holding the land without pay- ginning, met with pronounced opposition in ing the price. In Ahrend v. Odiorne, 118 this country, and Mr. Pomeroy ventures the Mass. 261, Mr. Justice Gray, now of the su- opinion “that the original grounds and reapreme court of the United States, after an sons for admitting the grantor's lien do not elaborate examination of the question, con- exist here, and the lien itself is not in harcluded that the foundation of the doctrine mony with our general real property law. was that justice required that the vendor The tendency both of our legislation and of should be enabled, by some form of judicial our social customs is to make land a subject process, to charge the land in the hands of of commerce, and its transmission as free as the vendee as security for the unpaid pur- | possible; while the rights of grantors can be chase money, and that the restriction of the fully protected by mortgages, which, in neardoctrine to real estate suggested the infer- ly all the states, are widely different from the ence that the court of chancery was induced instrument bearing the same name in Engto interpose by the consideration that by the land.” Investigation shows that the lien has law of England real estate could not be at- either been condemned by the courts or legistached on mesne process, nor, except in cer- lated against in the following states: Contain cases, and to a limited extent, be taken necticut, Delaware, Georgia, Kansas, Maine, in execution for debt. The learned judge re- Massachusetts, Nebraska, New Hampshire, jected the theory of natural equity, because North Carolina, South Carolina, Oregon, that would apply to a sale of chattels as well Pennsylvania, Vermont Virginia Washingas of land; and the theory of a trust, as that ton, and West Virginia. The supreme court would include too many other cases to which of the United States has never enforced the confessedly the doctrine had not been extend- lien except where in harmony with the jurised. The presumption of an intention of the prudence of the state in which the action was parties is thus disposed of by Mr. Justice brought. In Bayley v. Greenleaf, 7 Wheat. Gibson, in Kauffelt v. Bower, 7 Serg. & R. | 46, 5 L. Ed. 393, that court, speaking through 64: “The implication that there is an inten- Mr. Chief Justice Marshall, said: “It is a tion to reserve a lien for the purchase money secret, invisible trust, known only to the venin all cases where the parties do not, by ex- dor and vendee, and to those to whom it press acts, evince a contrary intention, is in may be communicated in fact. To the world, almost every case inconsistent with the truth the vendee appears to hold the estate devestof the fact, and in all instances, without ex- ed of any trust whatever, and credit is given ception, in contradiction of the express terms to him in the confidence that the property is of the contract, which purports to be a con- his own in equity as well as law. A vendor, veyance of everything that pass." relying upon this lien, ought to reduce it to Speaking of the nature of the vendor's lien, a mortgage, so as to give notice of it to the Mr. Justice Story, in Gilman v. Brown, 1 world. If he does not, he is in some degree Mason, 191, Fed. Cas. No. 5,441, said: “It is accessory to the fraud committed on the puba right which has no existence until it is es- lic, by an act which exhibits the vendee as tablished by the decree of a court in the par- the complete owner of an estate on which he ticular case, and is then made subservient to claims a secret lien.” In Ahrend v. Odiorne, all the other equities between the parties, and supra, Mr. Justice Gray says: “The decisions enforced in its own peculiar manner, and up- in the courts