dissenting: The ground of the opinion of the majority of the court is, that the act of 1849, which specifies the conditions upon which stockholders are to be made liable for the debts of the corporation, is, by the act of 1857, repealed by implication; that the latter act is a re-casting of the whole subject, and, instead of being construed as in pari materia with the former, should be held a repeal of it by implication. "With all deference, I insist that there is a single circumstance which renders the rule invoked and applied by the court wholly inapplicable.
If the legislature had expressly said, in the act of 1857, that it should not be deemed to have any such effect, and that the act of 1849 should be regarded as in force, no court, it seems to me, would be willing to hold that the act of 1849 was, nevertheless, repealed by implication.
Now, the legislature did what, in my judgment, is equivalent to making that declaration.
On the same day of the passage of the act of 1857 relied upon as repealing that of 1849, an act was passed as follows:
“It shall be lawful for all companies formed and incorporated, or which shall hereafter be incorporated under the provisions of ‘ An act to authorize the promotion of companies ■for manufacturing, agricultural, mining or mechanical purposes,’ approved February 10, A. D. 1849, to sue for and collect any instalment or subscription to stock due or to become due to said companies formed under said act, in like manner as other debts are now collected, and before any court having jurisdiction of the amount claimed.” It is declared to be a public act.
This act refers to that supposed to be repealed with absolute correctness. It expressly recognizes its existence. It clearly and unmistakably contemplates its future continuance and the subsequent formation of corporations under its provisions. As to that, it seems tó me there can be no differencé of opinion. The language employed: “or which shall hereafter be incorporated under the provisions of an act, etc.” is too clear and unambiguous to be disregarded.
The case, then, is this: Here are three statutes relating to substantially the same subject, one of which was passed the 10th of February, 1849, and two others on the 18th day of February, 1857. One of the latter two expressly refers to the act of 1849, recognizes its existence and provides a remedy not only for companies which had been theretofore incorporated, but for such as should thereafter be incorporated under the provisions of the act of 1849; the other of the two makes no reference whatever to the act of 1849, and yet it is held by the majority of-the court that the act of 1857, which makes no reference to that of 1849, repeals the latter by implication.
Did the act of 1857, which makes no reference to that of 1849, repeal the other one which was passed on the same day, and which expressly refers to it, and recognizes its continued existence? If so, by what rule of construction is such a result obtained? It seems to me that these three acts should be construed as in pari materia.
It may be said that the construction given by the majority of the court tends to the promotion of justice. That may be so, and it may not be so. There may have been numerous corporations organized under the act of 1849, since the .passage of the acts of February, 1857, invited thereunto by the very terms of the act above quoted; large sums'of money may have been invested in and important interests arising out of them. The parties to such organizations must now find themselves deceived. The act which they supposed to have been continued by the expression of the legislative will I have referred to, proves to be a nullity; their organizations are naught, and their rights and interests thrown into confusion.
For these reasons, I am compelled to dissent from the opinion of the majority of the court.