is a principle that a general statute, without negative words, will not repeal, by implication from their repugnancy, the provisions of a former one which is special or local, unless there is something in the general law, or in the course of legislation upon its subject-matter, that makes it manifest that the legislature contemplated and intended a repeal. When the legislator frames a statute in general terms, or treats a subject in a general manner, it is not reasonable to suppose that he intends to abrogate particular legislation, to the details of which he had previously giv. en his attention, applicable only to a part of the same subject, unless the general act shows a plain intention to do so." Ex parte Crow Dog, 109 U. S. 570, 3 Sup. Ct. 396, 27 L. Ed. 1030; Sedg. St. & Const. Law, p. 97; Malloy v. Com., 115 Pa. St. 25, 7 Atl. 790; 23 Am. & Eng. Enc. Law, pp. 424, 425; Suth. St. Const. § 147. The university act had special reference to the removal of the University of Utah, and its establishment on the site granted by congress, and to plat the grounds, procure plans, erect necessary buildings thereon, and to equip and furnish the same as a state university; and the sum of $200,000 was appropriated for that purpose, to be drawn at such times as the regents thought proper, not to exceed $50,000 to be drawn during or after the year 1899, and a like sum during or after 1900. The regents are directed by the act to expend the sum appropriated, or so much thereof as is necessary, for this purpose. It was doubtless within the contemplation of the legislature that contracts could be made to better advantage, and material and labor procured at a greater saving to the state, when cash could be paid at the maturity of the obligations entered into by the regents. By requiring the regents to comply with the law, and to draw the money at such times as they may deem proper, the legislature intended to vest in such board a large discretion as to the amount of money to be drawn, and when it should be drawn, in order to meet the various expenses and obligations that they were required to incur. The appropriation was made for a special, temporary, and specific purpose. The plan was to be carried out in a special way, by a special board. When the object was accomplished, the improvements made, and the appropriation exhausted, the act so far ceased to be operative. The act applies to no other board, building, or fund. Nor are the payments to be made biennially. At the end of the act, as if to emphasize the purpose and object of it, and render it operative as against any other provision of the statute, the legislature made a provision that "all laws in conflict herewith shall not be construed to prevent the carrying out of the provisions of this act." Sess. Laws 1899, c. 5, § 9. Chapter 53, enacted a few days later, amended section 2070 of the Revised Statutes in relation to state institutions drawing their biennial appropriations, and provided that on the 1st of each month, or as soon thereafter as bills for

expenses for the previous month have been audited, the board of each state institution may make requisition for warrants to pay the bills so audited, etc. Before this amendment, a proper pro rata of the biennial appropriation to state institutions was drawn quarterly in advance. By the old method of drawing this fund, under section 2070, large amounts of money could be drawn from the state treasury in advance, so as to deplete it for a time, while the money drawn might lay idle in banks, and thus cause the state some financial embarrassment. This may have been the fault sought to be remedied by the enactment. All state institutions have their regular expenses, accruing at regular intervals. The biennial appropriations are supposed to be sufficient to cover these expenses, and the provision was probably made so that such bills could be met monthly, after they were audited, and thereby preserve the remaining fund in the hands of the state treas urer, thus subserving all legitimate purposes. In construing a statute, the amendment thereto should be read in connection with the section amended. Endlich on Interpretation of Statutes (section 294) says: "No doubt, a statute which is amended is thereafter, as to all acts subsequently done, to be construed as if the amendment had always been there, and the amendment itself so thoroughly becomes a part of the original statute that it must be construed in view of the original statute as it stands after the amendment is introduced, and the matters superseded by the amendment eliminated." Had section 2070 originally read as it is amended, it would not reasonably be contended that the enactment of section 7 of chapter 5 repealed it, as they do not apply to the same subject-matter. ter 5 deals with a special appropriation for a special, temporary, definite purpose, such as the construction of buildings for an expensive state university, and the laying out of grounds, which, when completed, ends the object of the statute. Chapter 53 deals with a general subject, concerning monthly distributions of biennial appropriations covering the expenditures of all public institutions in the state. One is specific, temporary, and special, covering a definite, special subject, and having a special, temporary object and duration; the other being a general act, having no relation to the same subject or purpose, and being continuous in its operation. The two provisions have no repugnancy to each other, and are readily harmonized. On this subject. Sutherland on Statutory Construction (section 138) says: "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." In the case of Crane v. Reeder, 22 Mich. 322, It is said: "Where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question,

Chap

and the other general, which, if standing alone, would include the same matter, and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act or provision, especially when such general and special acts are contemporaneous, as the legislature are not presumed to have intended a conflict." Black, Interp. Laws, p. 116.

In

It is also contended that the later act passed at the same session repeals the previous one. But this does not necessarily follow. The repeal depends upon the intention of the legislative body as expressed in the act. The fact that the later act is different from the former one is not sufficient. It must further appear that the later act is contrary to or inconsistent with the former, in order to justify the contention that the first is repealed. If the later act covers part or all of the provisions of the former, it may not effect a repeal, for it may then be merely affirmative or auxiliary to the former. The rule that if, by fair and reasonable interpretation, acts which are seemingly contradictory may be enforced, and made operative and harmonious, without obscurity or conflict, both will be upheld, and the later will not be regarded as repealing the former by construction or intendment. Sutherland on Statutory Construction (sections 152, 153) it is said: "The presumption is stronger against implied repeals where provisions supposed to conflict are in the same act, or were passed at nearly the same time. In the first case it would manifestly be an inadvertence, for it is not supposable that the legislature would deliberately pass an act with conflicting intentions. In the other case the presumption rests on the improbability of a change of intention, or, if such change has occurred, that the legislature would express it in a different act without an express repeal of the first." This authority has a pertinent bearing, as also does section 147 of the same work, inasmuch as no express words of repeal are found in the later enactment, while in the former act, passed at the same session, there is contained a clause which provides that "all laws in conflict herewith shall not be construed to prevent the carrying out of the provisions of this act." Sess. Laws 1899, c. 5, § 9. This clause is unusual, and was evidently inserted for a purpose. It does not in words repeal any other law, but affects the construction of all laws in conflict, and disarms them from any repealing effect upon the act. It is seemingly a declaration on the part of the legislature that the act was enacted for a special, particular, and temporary purpose, and that it should be enforced according to its terms, without regard to any other law in force.

We hold it was the exclusive province of the legislature to decide. how, when, and by whom money should be drawn by the regents of the University of Utah under the provisions of chapter 5. A discretion was intended to be vested in the board of regents, and we are

satisfied that, in so far as they have gone, they have not exceeded their authority, but were acting within the clear provisions of the statute in making the demand and requisition in question. The judgment of the district court in overruling the demurrer, and in directing a peremptory writ of mandate to issue as prayed, is affirmed. Let the writ issue accordingly.

BARTCH, C. J., and BASKIN, J., concur.

(6 Ariz. 423)

YAVAPAI COUNTY v. McCORD et al. (Supreme Court of Arizona. Nov. 1, 1899.) MUNICIPALITIES-COUNTY BONDS-REFUNDING-DEMAND-VALIDATING ACTS.

1. Act Cong. June 6, 1896, having validated railroad aid bonds theretofore issued by counties in Arizona pursuant to territorial legislation, no original invalidity in such bonds, or the enactment under which they were issued, is available to prevent their being refunded.

2. Under Territorial Act March 19, 1891, authorizing any person holding county bonds to exchange them for bonds issued under the provisions of the act, no demand by the county authorities on the loan commissioners for the funding of the bonds was necessary to authorize them to do so, a demand from the holders alone being sufficient.

3. Act Cong. June 6, 1896, authorizing "funding of all outstanding obligations of" Arizona "until January 1, 1897," limits the power to obligations outstanding prior to such date, but does not terminate the power of county to sell funding bonds after such date.

Appeal from district court, Maricopa county; before Justice Webster Street.

Suit by Yavapai county against M. H. McCord and others. There was a decree for defendants, and plaintiff appeals. Affirmed. Herndon & Norris, for appellant. C. F. Ainsworth, Atty. Gen., and T. W. Johnston and L. H. Chalmers, for appellees.

DAVIS, J. By the provisions of an act of the legislative assembly of the territory of Arizona entitled "An act to aid in the construction of a railroad in Yavapai county," approved March 12, 1885, there was authorized to be issued, on the faith and credit of Yavapai county, negotiable bonds in the amount of $4,000 per mile for the construction of a railroad from a point on the line of the Atlantic & Pacific Railroad, near Chino station, in Yavapai county, to the city of Prescott, and thence to the northern boundary of Maricopa county. The Prescott & Arizona Central Railroad Company, accepting the provisions of this act, constructed a railroad, in accordance therewith, from a junction point near Chino station to the city of Prescott, and received therefor the negotiable bonds of Yavapai county to the number of 292, and in the denomination of $1,000 each. Interest was paid on these bonds from the date of their issue, in 1886, to the year 1893, inclusive, and 27 of said bonds were redeemed and paid by Yavapai county. On the 17th

day of September, 1897, the territorial loan commissioners took up 203 of said bonds in exchange for territorial funding bonds, and, so far as the record shows, the remainder of said original issue is still outstanding. On October 1, 1897, Yavapai county commenced an action in the court below to enjoin the defendants, who were, respectively, governor, secretary, and auditor of the territory, acting as loan commissioners, from funding or exchanging any of the aforesaid outstanding railroad bonds. The injunction was asked for upon three grounds, as stated in the amended complaint: First, that the act of the territorial legislature under which said bonds were issued was in conflict with the statutes of the United States, and that the said bonds are, for that reason, illegal and void; second, that no official demand had been made upon the loan commissioners by the authorities of Yavapai county for the funding of said bonds; third, that, under the act of congress approved June 6, 1896 (29 Stat. 262), the power and authority of the loan commissioners to fund said bonds terminated on January 1, 1897. Upon the full hearing of the case, the lower court rendered judgment denying the injunction and dismissing the complaint, from which judgment the plaintiff has appealed to this court.

Inasmuch as the appellant rested his claim to equitable relief solely upon the grounds above stated, it follows that the relief sought was properly denied, unless the right thereto could be sustained upon some one or more of those grounds. Whether or not there is merit in any one of them is to be determined, in our judgment, by the correct interpretation of the several congressional and territorial funding acts. These acts have been recently reviewed and construed by this court in the cases of Gage v. McCord, 51 Pac. 977, Coconino Co. v. Yavapai Co., 52 Pac. 1127, and Bravin v. Mayor, etc., 56 Pac. 719, and all of the questions necessarily involved in the case at bar have been fully decided. In Coconino Co. v. Yavapai Co., supra, the court, referring to these same bonds, said: "Whether or not the act of March 12, 1885, authorizing Yavapai county to issue bonds for the construction of said railroad, was within the power of the legislature to enact, or whether the bonds that were issued in pursuance of said act were originally valid or not, this court does not feel called upon to decide; for the view we take of the matter is that the validity of the bonds is to be determined by the act of congress approved June 6, 1896, section 2 of which is as follows: "That all bonds and other evidences of indebtedness heretofore funded by the loan commissioners of Arizona, under the provisions of the act of congress approved June 25, 1890, and the act amendatory thereof and supplemental thereto approved August 3, 1894, are hereby declared to be valid and legal for the purposes for which they were issued and funded; and all bonds and other evidences of indebtedness

heretofore issued under the authority of the legislature of said territory, as herein before authorized to be funded, are hereby confirmed, approved and validated, and may be funded as in this act provided until January 1, 1897: provided, that nothing in this act shall be so construed as to make the government of the United States liable or responsible for the payment of any of said bonds, warrants, or other evidences of indebtedness by this act approved, confirmed and made valid, and authorized to be funded.' Under that act, all bonds which had been issued by virtue of the territorial legislative enactments were permitted to be funded in territorial funding bonds. The act of congress aforesaid made valid all of the bonds which were issued under the legislative act of March 12, 1885." In support of this construction, and as bearing upon the intention of congress and the exigencies which the act of June 6, 1896, was designed to meet, the court, in that case, cited the memorial adopted by the territorial legislative assembly, in 1895, setting forth that, under various acts of the assembly, the counties were authorized to and did issue railroad aid bonds, which were sold in the open market at their face value, and were then held at home and abroad by bona fide purchasers; that the validity of these bonds, though questioned, was acknowledged by the payment of interest thereon; that a repudiation of the same would work a great hardship to the holders, and affect the credit of the territory; and therefore the legislative assembly urged upon congress the propriety of passing such curative legislation as would protect the holders of all bonds issued under authority of its acts, the validity of which had been acknowledged, and relieve the people from the disastrous effects of repudiation. Since the case of Coconino Co. v. Yavapai Co. was decided by this court the important features of this funding legislation have received interpretation from the highest judicial authority of the land. In Utter v. Franklin, 172 U. S. 416, 19 Sup. Ct. 183, which went from this court on appeal, Mr. Justice Brown, delivering the opinion, expressed the following views upon the effect to be given the congressional enactment of June 6, 1896: "Its evident purpose was to authorize the funding of all outstanding bonds of the territory and its municipalities, which had been authorized by legislative enactments, whether lawful or not, provided such bonds had been sold or exchanged in good faith, in compliance with the terms of the act of the legislature by which they were authorized.' The second section deals with the original bonds which had not been theretofore funded, and provides that all such as had been theretofore issued under the authority of the legislature, and which by the first section were authorized to be funded, should be confirmed, approved, and validated, and might be funded until January 1, 1897. We think it was within the power of congress to validate these bonds

*

*

*

Their only defect was that they had been issued in excess of the powers conferred upon the territorial municipalities by the act of June 8, 1878. There was nothing at that time to have prevented congress from authorizing such municipalities to issue bonds in aid of railways, and that which congress could have originally authorized it might subsequently and confirm ratify. Construing this [act] in the light of the surrounding circumstances, and particularly in view of the memorial, it is entirely clear that it was intended to apply to bonds issued under authority of the legislature, and purporting on their face to be legal obligations of the county, whether in fact legal or not; and, to put the matter still further beyond question, they are expressly declared to be legal and valid." The bonds issued by Yavapai county under the act of March 12, 1885, having thus been since approved and validated by congress, no original invalidity of the bonds, or of the legislative enactment under which they were issued, could be of any avail to the appellant in this case.

The point involved in the second ground upon which the appellant based his right to an injunction, namely, that no official demand had been made upon the loan commissioners by the authorities of Yavapai county for the funding of these bonds, was passed upon in Bravin v. Mayor, etc., supra, in which the court said: "The act of June 25, 1890 (being the act of congress approving, with amendments, the funding act of Arizona), was utterly silent as to the right of the holder of any warrants or other outstanding indebtedness to compel either the municipal authorities or the loan commissioners to take any steps required for the funding of such indebtedness. It was doubtless for this reason that the territorial act of March 19, 1891, provided that 'any person holding bonds, warrants or other evidence of indebtedness of the territory or any county, municipality or school district within the territory, may exchange the same for the bonds issued under the provisions of this act,' etc. As the law stood, therefore, after March 19, 1891, it was the duty of the loan commissioners to fund the outstanding indebtedness of municipalities-First, upon the official demand of municipal authorities; second, upon the application of the holders of such outstanding bonds, warrants, and other evidences of indebtedness as had not been funded." A demand from the holders alone upon the loan commissioners for the funding of these Yavapai county railroad bonds would have been sufficient, in itself, to have entitled the holders to an exchange of such bonds for territorial funding bonds, and this seems to have been the view taken of these provisions of the law by the supreme court of the United States in Utter v. Franklin.

The question as to whether or not the act of June 6, 1896, placed a limitation upon the time in which the loan commissioners could

exercise their funding powers, was fully considered in the case of Gage v. McCord, supra, and in that case we held that the limit of January 1, 1897, mentioned in the act, was intended to be restrictive only of the indebtedness which could be funded, and made the act applicable to such obligations as existed and were outstanding prior to that time, but that it did not terminate on that date the authority of the territorial officers to fund said obligations. We do not understand that this construction is inconsistent with any views expressed by the supreme court of the United States in the case of Utter v. Franklin. Upon none of the grounds stated in his amended complaint could the appellant have been entitled to the relief prayed for, and the injunction was properly refused. The judgment of the district court is affirmed.

SLOAN and DOAN, JJ., concur.

(6 Ariz. 418)

BAKER v. FLEMING et al. (Supreme Court of Arizona. Nov. 1, 1899.)

VENDOR'S LIEN.

Where land is granted by an absolute conveyance, the grantor has no implied equitable lien thereon for the unpaid purchase money.

Appeal from district court, Yavapai county; before Justice Richard E. Sloan.

Action by A. E. Baker against S. J. Fleming and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Ross & O'Sullivan and E. M. Sanford, for appellant. Andrews & Ling and H. D. Stocker, for appellees.

DAVIS, J. On the 14th day of July, 1896, the appellant, A. E. Baker, sold and conveyed to S. J. Fleming and R. T. Tustin, by deed absolute, certain mining property situated in Yavapai county, receiving part of the purchase price thereof in cash, and the written obligations of the said Fleming and Tustin for the residue. No express lien was reserved, however, for the unpaid portion of the purchase money. On or about the 20th day of August, 1896, the Providence Gold-Mining Company took a conveyance of said property from Fleming and Tustin, with full knowledge on its part of the existence of the said purchase-money indebtedness to Baker. Thereafter, in a suit brought by Baker, it was sought to establish and enforce a vendor's lien against the property for the balance of the purchase money owing to him. From the judgment of the district court denying his right to such lien he has prosecuted this appeal.

The sole question presented for decision here is whether a grantor of real estate by absolute conveyance has an implied equitable lien thereon for the unpaid purchase money. If such a lien arises at all, it must, on principle, prevail alike against the grantee him

self and all subsequent purchasers with notice. The doctrine of the English court of chancery, which recognizes and upholds such a lien, has been adopted in some of the states, rejected in some, and remains undecided or doubtful in others. There seems to have been no settled adjudication of the question in this territory, and we therefore feel at liberty to determine it as one of first impression. A considerable diversity of opinion exists concerning the origin of the vendor's lien. It has been accounted for as a trust, as an equitable mortgage, as arising from natural equity, and as a contrivance of the chancellors to evade the unjust rule of the early common law by which land was free from the claims of simple contract creditors. The grounds upon which the doctrine seems generally to have been rested in the earlier English cases were those of natural equity, a supposed intention of the parties, and a trust arising out of the unconscientiousness of the vendee's holding the land without paying the price. In Ahrend v. Odiorne, 118 Mass. 261, Mr. Justice Gray, now of the supreme court of the United States, after an elaborate examination of the question, concluded that the foundation of the doctrine was that justice required that the vendor should be enabled, by some form of judicial process, to charge the land in the hands of the vendee as security for the unpaid purchase money, and that the restriction of the doctrine to real estate suggested the inference that the court of chancery was induced to interpose by the consideration that by the law of England real estate could not be attached on mesne process, nor, except in certain cases, and to a limited extent, be taken in execution for debt. The learned judge rejected the theory of natural equity, because that would apply to a sale of chattels as well as of land; and the theory of a trust, as that would include too many other cases to which confessedly the doctrine had not been extended. The presumption of an intention of the parties is thus disposed of by Mr. Justice Gibson, in Kauffelt v. Bower, 7 Serg. & R. 64: "The implication that there is an intention to reserve a lien for the purchase money in all cases where the parties do not, by express acts, evince a contrary intention, is in almost every case inconsistent with the truth of the fact, and in all instances, without exception, in contradiction of the express terms of the contract, which purports to be a conveyance of everything that can pass." Speaking of the nature of the vendor's lien, Mr. Justice Story, in Gilman v. Brown, 1 Mason, 191, Fed. Cas. No. 5,441, said: "It is a right which has no existence until it is established by the decree of a court in the particular case, and is then made subservient to all the other equities between the parties, and enforced in its own peculiar manner, and upon its own peculiar principles." In one of the earliest English cases which contains a discussion of the doctrine, Lord Eldon observed:

"It has always struck me, considering this subject, that it would have been better at once to have held that the lien should exist in no case, and the vendor should suffer the consequences of his want of caution; or to have laid down the rule the other way so distinctly that a purchaser might be able to know, without the judgment of a court, in what cases it would and in what cases it would not exist." Mackreth v. Symmons, 15 Ves. 329. "No other single topic belonging to the equity jurisprudence," says Mr. Pomeroy, "has occasioned such a diversity, and even discord, of opinion among the American courts as this of the grantor's lien. Upon nearly every question that has arisen as to its operation, its waiver or discharge, the parties against whom it avails, and the parties in whose favor it exists, the decisions in different states, and sometimes even in the same state, are directly conflicting." 3 Pom. Eq. Jur. § 1251. The doctrine has, from the beginning, met with pronounced opposition in this country, and Mr. Pomeroy ventures the opinion "that the original grounds and reasons for admitting the grantor's lien do not exist here, and the lien itself is not in harmony with our general real property law. The tendency both of our legislation and of our social customs is to make land a subject of commerce, and its transmission as free as possible; while the rights of grantors can be fully protected by mortgages, which, in nearly all the states, are widely different from the instrument bearing the same name in England." Investigation shows that the lien has either been condemned by the courts or legislated against in the following states: Connecticut, Delaware, Georgia, Kansas, Maine, Massachusetts, Nebraska, New Hampshire, North Carolina, South Carolina, Oregon, Pennsylvania, Vermont, Virginia, Washington, and West Virginia. The supreme court of the United States has never enforced the lien except where in harmony with the jurisprudence of the state in which the action was brought. In Bayley v. Greenleaf, 7 Wheat. 46, 5 L. Ed. 393, that court, speaking through Mr. Chief Justice Marshall, said: "It is a secret, invisible trust, known only to the vendor and vendee, and to those to whom it may be communicated in fact. To the world, the vendee appears to hold the estate devested of any trust whatever, and credit is given to him in the confidence that the property is his own in equity as well as law. A vendor, relying upon this lien, ought to reduce it to a mortgage, so as to give notice of it to the world. If he does not, he is in some degree accessory to the fraud committed on the public, by an act which exhibits the vendee as the complete owner of an estate on which he claims a secret lien." In Ahrend v. Odiorne, supra, Mr. Justice Gray says: "The decisions in the courts * * in favor of the doctrine, which are collected in the notes to 2 Sugd. Vend. (8th Am. Ed.) c. 19, suggest no reasons and afford no grounds why we should