dissenting:
I am compelled to dissent from the opinion of the majority of the court, for the following reasons: This is an action at law, brought by the plaintiff against the defendant for the recovery of certain personal property, under an act of the territorial legislature entitled, “ An act providing for the trial of the right of property in certain causes and for other purposes; approved January 26, 1860.” The court below refused to have issue joined for the trial of the rights of the property claimed, and dismissed the case, whereupon the plaintiff appeals to this court. The court below took the position that the law above referred to was repealed by the adoption of the Bevised Statutes.
The only question that presents itself, and which should be considered in this cause, is, whether an act entitled “An act relative to the revision of the statutes,” approved January 24, 1865 (and which will be found on page 274 of the Bevised Statutes), repealed the act first referred to. In order to arrive at a clear understanding of this question it is necessary to get as near as we can the intention of the legislature, not only at the time the revision was authorized, but also at the time the revision was adopted. The great object in the construction of all statutes is to ascertain the intention of the enacting power, and the rules to be observed for this purpose are simple and too well known to need repetition. “ This intention having been ascertained, the court which refuses to carry it into.effect must be regardless of its duty. It is our duty to declare, not to make the law.” To do this correctly the ordinary rules of construction must be adopted, and the meaning of words, sentences, and phrases, must not be distorted to sustain an opinion.
In January, 1854, the legislature passed a law, making it the duty of the governor “to appoint a commission of two or more competent persons to collect, revise, and put in systematic order, the laws then in force in this territory, and it was made the duty of said commission so appointed to revise carefully the code and the statutes, etc., and to present and return to the next or some other legislature, and to his excellency the governor, a list of all the laws in force, and also of all those repealed,” etc. What the intention of the legislature creating this revising commission was, is clearly expressed in the language just quoted. It was undoubtedly their intention to have a complete and systematic revision of all the laws then in force contained in one volume. This, indeed, is the great object of all revisions.
Six years after the passage of the act creating the commission, a report appears to have been made by said commissioners to the legislature then in session, which was in the year 1865. The legislature, by an act of that session, and heretofore referred to, enacted, “ that the revision of the statutes, commencing with article 1, entitled ‘ Ace-quias,’’ and ending with article 67, entitled ‘ Woods and Prairies,’ with all and each of the articles and chapters inclusive, be, and the same are hereby declared to be the revised statutes and laws of the territory of New Mexico, and as such shall have full force and effect in all courts thereof.”
Having ascertained the intention, as I think, of the legislature authorizing the revising commission, I will now inquire into the intention of the legislature that adopted this revision of the statute. When this legislature declared the revision to be the Revised Statutes of New Mexico, they did not thereby declare that all laws not found in the revision should be repealed. If such was their intention, they would have said so in express terms, or by the use of words which are equivalent to an express repeal.
There is not to be found in the act adopting the revision any provision whereby laws not contained in the revision should be repealed. The words in the section of the act above referred to, “ be and the same are hereby declared to be the revised statutes and laws of the territory of New Mexico,” contain the only language in that law which can in any way be construed as a repeal of all laws not embraced in the revision, and it is very clear to my mind that this language will not authorize the repeal of the law in question by any of the rules known for the construction of statutes.
From an examination of the laws adopting the revised statutes of several of the states of this union, I find in some of them language like this: “ That all acts and parts of acts, the subjects whereof are revised or consolidated, and inconsistent with the laws contained in the revision, are declared to be repealed.” In others, again, I find the subject left entirely open, as it is in the law under consideration, and to me it appears very wise, indeed, that the subject of the repeal of all laws not found in a revision of the statutes should be left open. For it is a well known fact in the history of legislation, and one that can not well be denied, that in the hurry of legislation, and in the great anxiety on the part of the revisers to have their work adopted before the adjournment of the legislature, many things are done which should be left undone, and that which should be done is frequently undone. And also for the further reason, that those who are charged with the work of revising may, as is frequently the ease, omit through neglect or otherwise some of the laws intended to be put in the revision, which appears to be the case with the Revised Statutes of this territory. And it is safe to presume that the legislature took into consideration this fact, and in order to protect the rights of the people and the interests of the territory, refused to enact that all laws not contained in the revision should be repealed. I think that I am warranted in the opinion that this was the intention of the legislature that adopted the revision.
The law of January 26,1860, then, if repealed at all, is done by implication, and the rule is well settled, and the result of a long course of decisions, that repeals by implication are not favored by the courts. That there is no direct repeal is palpably evident, and it can only be impliedly repealed on account of inconsistency or repugnancy. It is not claimed that this law is inconsistent or repugnant to any of the laws in the revision, and it would hardly appear necessary to examine this point, were it not for the fact that I hold that if repealed at all, it must be on account of inconsistency and repugnancy.
If, however, there is in this law any inconsistency or re-pugnancy with any of the laws contained in the revision, it would then come under the rule of being impliedly repealed, on account of such inconsistency and repugnancy, and should be so declared. An examination of the statutes, however, so far as I have the time to examine, develops nothing that goes to establish the fact that this law is in any way inconsistent or repugnant with any of the laws in the revision. “ When the provisions of two statutes are so far inconsistent with each other that both can not be-enforced, the latter must prevail; but if by any fair course of reasoning the two can be reconciled, both shall stand.”
When the legislature intend to repeal a law, we may, as a general rule, expect them to do it in express terms, or by the use of words which are equivalent to an express repeal. No court will, if it can be consistently avoided, determine that a law is repealed by implication: Heirs of Ludlow v. Johnson et al., 3 Ohio, 553 [S. C., 17 Am. Dec. 609]; Miss. R. R. Co. v. Macon Co. Ct., 41 Mo. 453; Buckingham et al. v. The Steubenville and Indiana R. R. Co., 10 Ohio St. 27; Cass v. Dillon, 2 Id. 611; Bac. Abr., tit. Statutes. It is no reason that the law should be declared repealed because it is supposed to be out of print. The supreme court is not responsible for this, and should not be called upon to declare a¡ law repealed because it is out of print. That a reversal of the judgment of the court below will work an inconvenience on account of such law being out of print is a question I hold we have nothing to do with. That is for the law-making power of the territory to consider, and if they assume the power and responsibility of keeping laws out of print, and thus depriving the people of what properly belongs to them, it is no ground for calling upon this court to declare such laws repealed.
On the whole, my conclusions are, that the law of January 26, 1860, is not repealed by the adoption of the Revised Statutes; and that there is no inconsistency or repugnancy in this law with any of the laws in the revision, which by the well-known rules of construction would authorize a repeal of the same by implication; and that'the court below erred in refusing to have issue joined for the trial of the rights of the property claimed, and in dismissing the case. The judgment of the court below should therefore be reversed, and the cause remanded for trial.