DissentiNG Opinion
-"Bermudez, C. J.The Section relied upon to claim the tax or duty from the defendant, manifestly except from the same, all sales made of succession and insolvency property and, therefore, warrants a judgment of relief in favor of the defendant.
It palpably derives from section 11, of Act 141 of 1848, which-itself comes from- section 3, of act 41 of 1839 which, regulates the duties to be paid by auctioneers.
It is in this act of 1839, that for the first time are to be found the words: JSxcept such as are now exempted by existing laius.
*608The question then arises, confronted by this vague reference to an exemption, whether in 1839 there existed or not, a law exempting from the duty any particular class of property.
Running backwards, two statutes are found on the subject: One of 1836, sec. 1, p. 56, relative to port warden sales, and another of 1805, passed by tliejerritorial council, p. 16.
It is needless to refer to the act of 1836, as it has no material bearing on this case, save'so far as it amends the last mentioned act, which it, therefore, notices.
Section 7 of the Act of 1805, provides:
“That all goods and chattels, lands and tenements, which may be hereafter seized by any public officer for, or on account of any forfeiture or penalty; goods and effects of deceased persons, or effects detained for rent, or taken in execution, or damaged goods sold for the account of the concerned, and the goods of insolvent debtors, shall in no wise be subject to, but are hereby exempted and declared free from the duty aforesaid.”
It is proper heiA to observe that section 8 of that act (1805) was amended-by section 2 of the subsequent act of 1836, by striking out the words: “ sold at any auction store,” and replacing them by the words: “sold by any commissioned jpubhe auctioneer.” So that the section (8) would read:
“All goods and chattels, lands and tenements sold by any commissioned auctioneer, whether at public or private sale, shall be subject to the duty before mentioned.”
By reference to the Digest of the statutes of the State, reported by the compilers thereof, in 1852, under authority of the acts of 1848 and 1850, it apireara that section 7 of the aotof 1805 was published among the laws then in force.
An attentive reading of that section impresses forcibly the mind that its object was to exonerate from the duty three specific classes of property:
1. That seized and sold under writs issued by judicial authority.
2. That belonging to deceased persons, or successions.
3. That composing the estate of insolvent debtors, or bankruptcies.
The amendment of that section by the act of 1836, was not designed to and did nob disturb that exemption from duty.
The acts of 1839 and 1848 first continued it in force, by the fact of the reference to the property, the sale of which was exempt from duty by law. 'The supervisory legislation of 1855 and of 1870 have bridged it over with all its pristine vigor and effect.
*609It is not exact to say that tlie last section of tlie Revised Statutes of 1870 (sec. 3090) lias repealed it, because on tbe same subject-matter, for tlie obvious reason tliat this revisory legislation (sec. 145) itself provides that all property, except tliat exempted by law, shall be subject to duty.
A review of tlie legislation in force at the time of the adoption of the R. S. of 1870, dating as far back at least as 1855 and which is still in existence, discloses the double significant fact that, in furtherance of the design to alleviate the burden resting upon the transfer of property belonging to successions, to insolvencies and to-incapacitated persons, the Legislature has subjected the same to a lighter commission in favor of auctioneers and sheriffs, and has specially authorized the sale of such property as well by the former as by the latter. Sec. 3549, R. S; Acts 1855, p. 106, and ex. sess. 20.
On principle, laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject. It is, therefore, but reasonable to conclude that the Legislature in passing a statute did not intend to interfere with or abrogate any prior law relating to the same matter, unless the repugnancy between the two is irreconcilable, and hence a repeal by implication is not favored. On the contrary, courts are bound to uphold the prior law, if the two acts may well subsist together. Sedgwick on Stat. and Const. 106.
In the present instance, the exemption from duty of succession and insolvency property lias been under special and constructive legislative consideration and apparently the object of unvarying solicitude, on at least eight different occasions, in 1805, 1836,1839,1848,1852,1855,1856 and 1870.
It is indisputable that the act of 1805 was in force at the date of the' supervisory legislation of 1855 and that it has survived it. The act of that year, relative to auctioneers (No. 104, p. 106) concludes, as' does the classification of 1870, termed the “ Revised Statutes,” by repealing all laws in conflict with its provisions, or' on the' same subject-matter, save those contained in the Codes.
As regards that legislation, it has been more than once held that an interpretation leading to a mischievous result should be rejected; that the legislative intent should be sought and enforced; that the repealing'clause did not recall such pre-existing statutory'provisions as were' re-enacted in the revisory statutes. 11 A. 439,470,609; 12 A. 390,431; 14 A. 620, 667, 720, 730.
*610The very repetition totídein verbis of sec. 7, of Act 104 of 1855, more than implies — it aim ounces — a will to retain in 1870 the legislation bridged over by the act of 1855.
Section 145, as well as sec. 149, which also intimates that there are sales not subject to duty, are certainly pregnant with, and therefore vivify, the act of 1805, which by formal legislative behest, tenaciously adheres to their entrails. To pretend the reverse is to do violence to the intent of the law-giver and to extirpate it from the solemn expression of his will.
Remission for relief to the mercy or liberty of an impotent Legislature is no crumb of comfort. It is less than a deception and fleeting shadow. Const. 1879, art. 57.
It does seem illogical and unreasonable, therefore, to conclude that however much the section relied on (145), itself excludes from duty the property exempt by law, it is to be understood and construed as announcing the reverse of its meaning; that is, that there exists no such property or exemption, or that if such be the law, it was, by the subsequent last section, revoked and nullified. Such conclusion appears repugnant to the legal mind.
There has not been uttered oven a whisper that property sold by sheriffs, under writs or orders of courts, is subject to the duty, and the reason is that there exists indeed no such liability, simply owing to the exempting act of 1805. If that law be considered- as repealed, then propert3r sold by sheriffs in furtherance of judicial orders, writs and authority, must pay the tax to the State. The only motive or consideration which can satisfy the mind in justifying the immunity to this day is, that as the property passes not by the option or will of the owner but by the power of judicial authority, it should not be burdened. If that be the reason, then why should not .the property composing the assets of successions and of insolvencies, which likewise passes by public sales, which are also made by judicial authority, be in the same manner and to the same extent liberated from the duty ?
It was advanced, without contradiction, in argument that the State authorities have invariably considered the Act of 1805 as in force, as at all times they have distributed among the auctioneers forms or blanks for their returns to the Auditor, implying the exemption, and that no duty has ever been paid on that class of property into the State Treasury. The undenied assertion is certainly entitled to some consideration and moral weight.
*611The records of the courts and the memory of ancient practitioners fail to recall a single instance in which the State has ever claimed the duty, or in which an auctioneer has over demanded it.
If such has been the consten-. i put on the law by the State herself, how inequitable it would be to hold th efendant liable for a tax which never was considered as due and exii
As was well said by counsel of de >nt, the clear meaning of this exception is to exclude from the payment of the duty all property exempt by law at the time of the passage of the R. S.
Indeed, if the object in view was not to except all property exempt at that date, then language is meaningless and the Legislatures that have used it four times, at least, have spoken simply to say nothing.
Section 145, R. S. incorporates sec. 7 of the Act of 1805, and must be read as follows:
“All property * * * which shall be sold * * * by auctioneers, except that belonging to successions mid insolvencies, * * * shall be subject to a duty,” etc.
To contend for the reverse, as is done by the plaintiffs, is arbitrarily to expunge from the law its expressed meaning and to feed charity on the fruits of an iniquitous exaction.
Rehearing refused.
Poelié, J. I concur in the dissenting- opinion of the Chief Justice.