Hickory Tree Road , 43 Pa. 139 ( 1862 )

The opinion of the court was delivered, by

Lowrie, C. J.

This ease is brought here in order to get us to review our decision in Uwehlan Road Case, 6 Casey 156, and we are well pleased to have it, for we find that we did. not express ourselves there with sufficient fulness, and that our decision is seriously questioned by the Quarter Sessions. The question now is exactly the same, for the Chester County Road Law has been extended to Dauphin county in all its words, and therefore we have no occasion to weaken the discussion by drawing distinctions that might divert the mind from the very point of the case.

It is supposed that our decision violates the previous course of decisions on this subject, and several cases are referred to. Rut those cases were not overlooked in our former decision, and founding ourselves on them, as well as on common sense, and following the learned counsel who argued the case for the defendants in error, we took the distinction that, where a law takes away a subject of jurisdiction, a proceeding founded upon it must fall; but that when it merely changes the remedy, it may be otherwise, and must be, unless the law plainly declare it otherwise.

Now, it seems to us somewhat remarkable that the Quarter Sessions should not recognise so plain a distinction as a proper one for us to make, and especially that it should overlook the fact that it is recognised in the very cases that are cited by itself in opposition.. In the first case, 4 Yeates 395, Tilghman, C. J., goes expressly on the ground that the new law divested the jurisdiction given by former laws, and the same thought was manifestly in the mind of another of the judges; and the third doubted whether it was such a repeal as stopped the proceedings, and I acknowledge that I sympathize in the doubt; for it is not clear to me that the repealing clause ought to have received so broad an interpretation against the customary jurisdiction of the Quarter Sessions.

No one, who thinks at all on the subject;'man suppose that the repealing clause in that case and in the present, have anything like equivalence. In that case, all previous legislation relative to roads is “repealed and made void,”-and this would seem to leave nothing standing of either jurisdiction or practice. In the present case, only an amendment of the practice is intended, and the repealing clause applies only to “ all laws inconsistent herewith.” The one is general and the other special; the one is abrogatory and the other derogatory (if I may be indulged in importing these words), and special and derogatory laws are never entitled to an extensive interpretation. But we do not dwell on that.

Any lawyer, who stops to look at this last repealing clause, will see that it is merely the expression of the degree of repeal that is involved and implied in every new statute; it repeals all previous inconsistent legislation, and nothing more. We need not stop to prove this. It adds nothing to the previous parts of .the statute; that is not involved in them, and it is an entirely useless provision to the legal mind, though it is no doubt valuable to others, and is therefore often inserted at the end of statutes; much more often is it not. But whether expressed or implied, the interpretation of the statute is the same. Of course, subsequent legislation repeals previous inconsistent legislation, whether it expressly says so or not. In the nature of things it would be so, for contradictions cannot stand together. And yet no one would suppose that this implied repeal would stop proceedings already commenced. It gains nothing by being expressed.

We need not discuss the other cases relied on, for those who have a reasonable doubt, or an investigating faith, will examine them for themselves, without stopping at the syllabus. They all let the proceedings fall because the jurisdiction is taken away: 1 Watts 258, 382; 10 Id. 351; 7 Harris 329; or let them continue even on a repeal of a former law, so far as not inconsistent, because only the remedy is changed: 7 Barr 173; or apply to criminal law, where the crime or its penalty is repealed, pending the proceedings: 8 Watts 517 ; and this presents no relevant analogy.

And the distinction adopted by us, that proceedings fall on the repeal of the jurisdiction, and. continue on the repeal, or change of the remedy, appears often on our books as one of undoubted validity: Smith’s Commentaries on Stat. and Const. Law 880, 887; Sedgwick on Stat. and Const. Law 131, 134, 188, 202; 1 Hill 330, 334. It is as old as any intelligent legislation, and we find the principle of it in the Code of Justinian, declaring that no law shall retroact nisi nominatim et de prceterito tempore et adhuc pendentibus negotiis cautum sit. Tilghman, C. J., says, 4 S. & R. 403, “It has several times happened that Acts of Assembly have been made prohibiting suits of a particular nature, and that suits of that nature wore depending when the acts were passed. I have always declared that such suits were not within the act;” and he refers to many authorities. He also adds that, this rule “is so conformable to the plain principles of justice that, were there no authorities, I should not hesitate to be governed by it.” We may notice further, that this act was extended to Dauphin county two years after it had received this interpretation, and therefore, on ordinary principles, it was extended with its interpretation. And, at the very same session of 1860, the legislature adopted this interpretation in express terms, in extending the law to York county: P. L. 64. Yery often they have expressed it in other remedial laws, as in the Statute of Wills of 1833, § 18; of Executors and Administrators of 1834, § 70; of Suits on Official Bonds of 1836, § 7; of Intestates, 1833, § 21. Much more frequently they say nothing about repeal, or which is the same thing, simply declare the repeal of inconsistent laws, and thus leave the extent of repealing influence to be decided by the rule we have been discussing.

No other question was discussed in this case, and it contains no other that needs to be noticed. The court obeyed the new law so far as it could in this case by appointing only three persons for reviewers, after the passage of the act. There can be no difficulty about the proceeding for damages. That must go on under the old law, except in the number of viewers. And this suggests another argument in favour of our interpretation. If the repealing clause were as effectual as the complainants suppose, then there would be no remedy for damages for a road confirmed under the old law, if the law had been passed before the damages were finally assessed and confirmed.

Order affirmed at the costs of the plaintiffs in error.