34

ter or section in lieu of its charter on the same subject. It was held that such adoption had the same effect as an amendment of the charter and that the general saving statute would apply to save any rights under the charter provisions displaced by the adoption. But where a local prohibitory statute was displaced by the adoption of a local option law, it was held that prosecutions under the prohibitory law were not preserved by the general saving statute.35 An act of February 10, 1893, repealed the mortgage tax law without any saving clause as to taxes then due. On February 21, 1893, an act was passed that these taxes should be collected as if there had been no repeal. Both acts went into immediate effect. It was held that the acts were to be construed together and that the saving clause of the later act was virtually incorporated into the earlier.* The right to peremptory challenges in a criminal case is held not to accrue until the defendant is put on trial, and where the statute giving such right is repealed before the trial, the right is not preserved by a general saving statute, that a repeal shall not affect any right accrued before such repeal. And the same saving statute was held not to preserve a lien for wages, where the repeal of the statute took place after the labor was performed and before proceedings commenced.38

A revenue act provided that lands sold for the non-payment of taxes could be redeemed within a certain time upon the payment of a fixed penalty. The act was repealed by a subsequent one, changing the time of redemption and the amount of the penalty, but providing that the former act should remain in force for the collection of taxes levied thereunder. It was held that an act in force for the purpose of collection was in force for the purpose of redemp

34 Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816.

35 Wooten v. Commonwealth, 98 Ky. 468, 33 S. W. 397.

36 Smith v. Kelly, 24 Ore. 464, 33

Pac. 642; Windle v. Hughes, 40 Ore. 1, 65 Pac. 1058.

37 Mathis v. State, 31 Fla. 291, 12 So. 681.

38 National Bank v. Williams, 38 Fla. 305, 20 So. 931.

39

41

tion. The lien of a judgment in respect to duration was held saved by the words "no rights vested or liabilities incurred at that time shall be lost or discharged." The judgment lien is incident to a judgment, a liability incurred, and therefore saved from the effect of the repealing statute.40 A saving of pending prosecutions does not include a case where the prosecution has closed and sentence has been pronounced; nor cases commenced afterwards.42 Under a saving of pending prosecutions and offenses theretofore committed, an indictment filed after the repeal took effect was sustained. Such a provision in a repealing act relates solely to the acts repealed by it," unless a different intention is deducible from the language of the saving clause. A provision in the repealing law to the effect "that no remedy to which a creditor is entitled under the provisions of the laws heretofore in force shall be impaired by this act" does not apply to creditors suing for breaches of the bond occurring since the enactment of the repealing statute.45 The effect of the repeal of a statute and its re-enactment in the same words by a statute which takes effect at the same time with the repealing act is to continue such statute in uninterrupted operation.46 The rule is the same as to criminal offenses.47

§ 288 (168). Revival by repeal of repealing statute.The common-law rule is well settled that the simple repeal, suspension or expiration of a repealing statute revives the 39 Wolfe v. Henderson, 28 Ark. Dashiell v. Mayor, etc., 45 Md. 615; 304

40 Dearborn v. Patton, 3 Ore. 420. 41 Aaron v. State, 40 Ala. 307. See Luke v. Calhoun Co., 56 Ala. 415. 42 Knox v. Baldwin, 80 N. Y. 610. 43 Sanders v State, 77 Ind. 227. 44 Mongeon v. People, 55 N. Y. 613.

45 Collins v. Warren, 63 Tex. 311. 46 Laude v. Chicago, etc. R. R. Co., 33 Wis. 640; Middleton v. N. J. etc. R. R. Co., 26 N. J. Eq. 269;

Capron v. Strout, 11 Nev. 304; United Hebrew B. Asso. v. Ben. shimol, 130 Mass. 325; Knoup v. Bank, 1 Ohio St. 603; Coffin v. Rich, 45 Me. 507, 71 Am. Dec. 559; Smith v. Estes, 46 Me. 158.

47 State v. Gumber, 37 Wis. 298; State v. Wish, 15 Neb. 448, 19 N. W. 686; ante, § 238; McMullen v. Guest, 6 Tex. 278; Hirschburg v. People, 6 Colo. 145,

repealed statute, whether such repeal was express or only by implication." But it is frequently provided by statute that the repeal of a repealing act shall not have that effect." Where a law is merely suspended, the removal of its suspension restores its operation notwithstanding such a statute.” The constitution of New Jersey provides that "no law shall be revived or amended by reference to its title only, but the act revived, or the section or sections amended, shall be inserted at length." It has been held by the highest court of that state that this provision does not cover a revival by operation of law and, therefore, that the repeal of a repealing act revives the original act.51 The same ruling has been made in Tennessee in a case where the first repeal was by implication only. When a statute restraining a man's nat

52

48 Gale v. Mead, 4 Hill, 109; Brown v. Barry, 3 Dall. 365; People v. Davis, 61 Barb. 456; Wheeler v. Roberts, 7 Cow. 536; Van Denburgh v. President, etc., 66 N. Y. 1; Van Valkenburgh v. Torrey, 7 Cow. 252; People v. Trustees, 26 Hun, 488; Commonwealth v. Churchill, 2 Met. 118; Hastings v. Aiken, 1 Gray, 163; McMillan v. Bellows, 37 Hun, 214; Doe v. Naylor, 2 Blackf. 32; Harris v. Supervisors, 33 Hun, 279; Zimmerman v. Perkiomen, etc. Co., 81* Pa. St. 96; Baum v. Thoms, 150 Ind. 378, 50 N. E. 357, 65 Am. St. Rep. 368; Mayor v. Broadway, 97 N. Y. 275; Chard v. Holt, 136 N. Y. 30, 32 N. E. 740; People v. Scannel, 62 App. Div. 249, 70 N. Y. S. 983; Greenlee v. Eisenbrown, 10 Pa. Co. Ct. 483; Ottman v. Hoffman, 7 Misc. 714, 28 N. Y. S. 28. It has been held that a statute repealed by two acts is not revived by repeal of one of them. Dyer v. State, Meigs, 237; Teter v. Clayton, 71 Ind. 237; Poor Directors v. R. R. Co., 7 Watts &

S. 236; Zimmerman v. Perkiomen, 81* Pa. St. 96; Longlois v. Longlois, 48 Ind. 60; Waugh v. Riley, 68 id. 482; Niblack, Adm'r, v. Goodman, 67 id. 174; Brinkley v. Swicegood, 65 N. C. 626; Harrison v. Walker, 1 Ga. 32; People v. Wintermute, 1 Dak. 63, 46 N. W. 694; Janes v. Buzzard, Hempst. 259; Witkouski v. Witkouski, 16 La. Ann. 232; Tallamon v. Cardenas, 14 id. 509; Weakley v. Pearce, 5 Heisk. 401; Hightower v. Wells, 6 Yerg. 249. See Southwark Bank V. Commonwealth, 26 Pa. St. 446.

49 Rice v. Commonwealth, 22 Ky. L. R. 1793, 61 S. W. 473; State v. Sawell, 107 Wis. 300, 83 N. W. 296.

50 State v. Sawell, 107 Wis. 300, 83 N. W. 296; Cassell v. Lexington, etc. Turnpike Co., 10 Ky. L. R. 486, 9 S. W. 502.

51 Wallace v. Bradshaw, 54 N. J. L. 175, 23 Atl. 759, reversing 53 N. J. L. 315, 21 Atl. 941.

52 State v. King, 104 Tenn. 156, 57 S. W. 150; Zickler v. Union Bank

54

ural rights, or his use of his property, is repealed, he is restored to those rights, as before the law was passed. This rule of revival was held to apply to the vote of a tax by taxable inhabitants. This vote was restored to effect by repealing a rescinding vote. Where a statute professes to repeal absolutely a prior law and substitutes other provisions on the same subject which are limited to continue only till a certain time, the prior law does not revive after the repealing statute is spent, unless the intention of the legis lature to that effect is expressed. The legislature may make the revival of an act depend upon a future event to be made known by executive proclamation.56 Where an act is revived by a subsequent law the legislature must be understood to give it, from the time of its revival, precisely that force and effect which it had at the moment when it expired." Incomplete proceedings which were arrested and rendered void by repeal of the statute under which they were instituted will not be restored to life by revival thereof.58 A forfeiture for a prohibited act was given by statute to any one who should sue for it. Afterwards the exclusive right to sue for it was given to overseers of the poor. The repeal of this act was held to operate only prospectively and gave no right to any other than the overseers

& T. Co., 104 Tenn. 277, 57 S. W. 341. Contra, Renter v. Bauer, 3 Kan. 505. In the first case cited the court says: "Whatever may be the law as to the revival of laws which have been expressly repealed by repealing the repealing act, it has been held in this state, and we think upon sound principle, that when a law has been repealed by implication merely, the repeal of the act which thus impliedly repeals the former law revives such law, and this for the reason such former law was never, in fact, re

pealed, but its operation merely suspended or interrupted by the adoption of another rule." pp. 166, 167.

53 James v. Dubois, 16 N. J. L. 285. 54 Gale v. Mead, 4 Hill, 109. 55 Warren v. Windle, 3 East, 205. 56 Cargo of Brig Aurora v. United States, 7 Cr. 382, 3 L. Ed. 378.

57 Id. See Shipman v. Henbest, 4 T. R. 109; Winter v. Dickerson, 42 Ala. 92.

58 Commonwealth v. Leech, 24 Pa. St. 55.

for forfeitures incurred during the operation of the second act.59

60

Where the repeal of a repealing statute is for the purpose of substituting other provisions in its place, the implication of an intention to revive the repealed statute cannot arise, and especially if the substituted provision is repugnant to the original provision, or is not properly cumulative to it. So the repeal of a statute which was a revision of and a substitute for a former act to the same effect which was therefore repealed cannot be deemed to revive the previous act; for this would be plainly contrary to the intention of the legislature. And where a statutory provision has been repealed without change in the amendatory act and the latter is afterwards repealed, the original provision is repealed also. Statutes have been very generally adopted in the states abolishing the rule of implied revival as a consequence of the repeal of the repealing statute.63

62

In State v. Slaughter the court construed the effect of a general provision that "where any law repealing any former law, clause or provision shall itself be repealed, it shall not be considered to revive such former law, clause or provision, unless it be expressly otherwise provided." It was held that if the section of the marriage act under consideration repealed or superseded the common law on the subject of incestuous marriages, its repeal would not revive the common law. Where a revival requires re-enactment, a legislative declaration that an act mentioned shall not repeal the provision will not suffice.65 Where a general act appli

59 Van Valkenburgh v. Torrey, 7 Cow. 252.

60 Commonwealth v. Churchill, 2 Met. 118; Bouton v. Royce, 10 Phila. 559; Warren v. Windle, 3 East, 205. 61 Butler v. Russel, 3 Cliff. 251, Fed. Cas. No. 2243; Butner v. Boifeuillet, 100 Ga. 743, 28 S. E. 464; State v. Burk, 88 Iowa, 661, 56 N. W. 180; Cochrane v. King County, 12 Wash. 518, 41 Pac. 922.

62 Moody v. Seaman, 46 Mich. 74, 8 N. W. 711; Goodno v. Oshkosh, 31 Wis. 127; People v. Supervisors, 67 N. Y. 109, 23 Am. St. Rep. 94; Harris v. Supervisors, 33 Hun, 279.

63 See Milne v. Huber, 3 McLean, 212, Fed. Cas. No. 9617. 64 70 Mo. 484.

65 State v. Conkling, 19 Cal. 501.