DISSENTING OPINION OF
I feel myself obliged to dissent from the opinion of the majority of the court in this case. The facts and issues of law are sufficiently well presented by the ponente. There seems to be no doubt that the transfer or attempted transfer was not made by virtue of any of the provisions of the Code of Commerce; in other words, that no justification for the alienation of the rights of the minor in the property of the firm of González, Méndez & Co. is to be found in that Code. The necessary liquidation did not take place, as indicated by the court below in its third, fourth and fifth Considerandos, as well as by the majority opinion.
It is not disputed that the property of the society of Gon-zález, Méndez y Ca. consisted mainly of real property. It is maintained however that what the minor possessed was not a real property right, but an interest in the society, and that the provisions of section 164 of the Civil Code are inapplicable. It is likewise and principally maintained that although section 2010 of the Code of Civil Procedure required judicial authority for the alienation of the species of property, the subject of this action, yet with respect to parents the said section 2010 was repealed by the later enactment of section 164.
It is practically conceded that unless the one was so repealed by the other, the judgment of the lower court ought to have been affirmed. The opinion of the majority of the court does not rely on any decision for its principal contention, and ignores the strong comments to the contrary made by the eminent commentators of each of the two codes, namely the Civil Code and the Code of Civil Procedure, in effect at the time of the transfer.
The general principles that govern the interpretation or repeal of statutes, being directed to determine the intent of the legislator, are not essentially different in Spanish countries from what they are in the United States. In both conn-*267tries where it is asserted that a later statute by necessary implication repeals a former one the court will place the two statutes side by side to determine what inconsistency or re-pugnancy exists between them. That repeals by implication are not favored is a deduction from the reasoned experience of mankind. So much too may be' inferred from the reasoning of the majority opinion, as well as that of the commentators on the two Codes, to whom I have referred.
It being maintained that the special provisions contained in section 164 of the Civil Code repealed, with respect to ■ fathers, the general provisions of sections 2010 et seq. of the Code of Civil Procedure (which sections by their terms include parents) the principle most applicable is that contained on page 743 of volume 26 of the second edition of the American and English Encyclopedia of Law, namely: “A general act will be repealed pro tanto by a subsequent special act when the two acts cannot stand together; but if on a reasonable construction the two acts are not inconsistent and may stand together, the general act is not repealed by the later special act.” Indeed this is no more thán the particular application of the principle which governs the repeal of statutes in general.
The Supreme Court of the United States in various decisions has stated that the correct guide is as follows:
“To induce the repeal of a statute by the implication of inconsistency with a later statute there must be such a positive repugnancy between the two statutes that they cannot stand together.” (Arthur v. Homer, 96 U. S., 140; McCool v. Smith, 1 Black., 459; Wood v. United States, 16 Pet., 342; United States v. Tynen, 11 Wall., 88.)
Placing then these two statutes side by side, I am unable to see any conflict between them. As intimated before, sections 2010 et seq., are not restricted to any particular class of persons, natural guardians or otherwise, but nevertheless plainly and expressly include parents. These sections re*268■quire judicial authorization for the alienation of four different classes of property, and section 164 under discussion exacts the same authority for the first of these classes with particular reference to parents.' What is there repugnant or inconsistent in the legislator emphasizing the necessity of judicial authorization in the case of any particular alienation of real property? The learned commentator of the Civil Code, Q. Mucins Scaevola takes exactly the opposite view from the majority of the court. He says in his commentaries on section 164:
“The Code in this article, in requiring judicial authorization, speaks only of the real property belonging to the children. Does the silence in regard to the other property mean that such requisite is not necessary concerning the same? Such omission would have to be so understood if there did not exist a special precept supplying the same, such as article 2011 (2010 for Porto Rico) of the aforesaid law of civil procedure, which extends the necessity of judicial permission to the alienation of encumbrances of public effects and value of all kinds nominative or payable to the bearer, rights of all kinds, jewelry, furniture and precious articles which can be preserved without deterioration.
“Is this precept to be understood as having been repealed on account of the silence of the Code? By no means. The latter is a substantive and civil law, the publication of which can only affect laws of the same character, and not those of a different nature; that is, the adjective laws, or laws relating to proceedings, such as the law of procedure. Besides, the final repealing provision of the Code causes only those laws to lose their force which constituted the common civil law, and that in matters which are the object of the same; which repeal, therefore, cannot reach a law that, like the one of which we are speaking, does not form part of the common civil law, and still less in a matter which is not an object of the Code, and which, on the contrary, supplies the lack in the sainé. As we understand it, the precept of section 164 is not a modification of the provisions of the law of procedure, but a ratification, since even though the said precept had not been established, the judicial authorization would still be necessary in order to alienate or encumber property of the children by virtue of the fact that it is so required by a law the *269essence oí which has not been altered by the publication of the Code. In consequence of this, the alienations or encumbrances of the aforesaid property of the children must be effected after having previously obtained judicial authorization, etc.”
Likewise Manresa in liis comments on articles 2010 et seq., says:
“PROPERTY OP MINORS WHO ARE UNDER PATERNAL AUTHORITY.Article 164 of the Civil Code reads as follows (citing said article). To this case are applicable the present article and the four following ones, in so far as they refer. to parents. Although the Code only mentions real property, we believe that the necessity .of judicial authorization extends to the other properties named in the present Article 2011 (2010 in Porto Rico), as well as to the extinction of property rights in real property mentioned in Article 2030 (2029 in Porto Rico), for the reason that its provisions are complementary to that of the Code, and there is no provision whatever in thp latter by which it is prohibited.”
Sánchez Bomán, cited 'hereafter, arrives at the same conclusion. That he regarded both sections as existing with respect to the patria potestas appears from the dictum of the Begister of Property of Andújar reported in the sentence of the Dirección General de los Registros Civil y de la Pro-piedad y del Notariado. (Jurisprudencia del Código Civil Vol. 2 of 1894.)
All the available authorities are against the proposition that, except in the case of reality, it is unnecessary to seek judicial license to alienate or encumber the property of minors.. The most'that might be said is that, while the Code of Civil Procedure made judicial authority formally necessary, the Civil Code made it substantially necessary in certain respects.
If I correctly understand the reasoning of the court I am in accord with it when it says, or seems to say, that section 164 in so far as it contains a prohibition may not be extended. It is not urged that this section may be interpreted to prohibit other alienations of property than those embraced in its *270terms. But I cannot assent to the application made of the rule of expressio imius est exclusio alterius to the case at bar. A case which shows an application of the rule expressio unius etc. is the case of Wood v. The United States cited above.
In attempting to apply this maxim to the repeal of statutes by implication it would seem that there must be some incongruity, inconsistency, or repugnancy between the thing included and the thing excluded or at least some relation between them (other than merely being in pari materia) which would make improbable, if not impossible, their co-existence as law. There must be something from which to gather an intention to repeal. It is not enough to declare that all the law upon the alienation of property of minors not emancipated is contained in a certain chapter.
Nevertheless, the ponente does assert that it was the intent of the legislator by enacting Chapter III of Title VII, Book I “to determine the effect of the parental authority with regard to the property of the children.” Supposing this to be the proper exposition of the law, one is immediately led into a serious difficulty, especially if the provisions of section 2010 et seq. of the Law of Procedure have been repealed pro tanto. The said Chapter III may be most carefully scrutinized without revealing any grant of power over the property of their children to the parents, beyond the power of administration and usufruct and the implied power of alienation of real property contained in section 164. It is here that the rule of expressio imius, etc., would seem to be applicable. Here there is no question of repeal. All the law on the effect of the patria poiestas over the property of their children, it is said, is expressed’by the said Chapter III. As administration and usufruct are included other powers of domination excepting those conferred by section 164, are excluded. Unless the Civil Code of Procedure will supply the lack there is nothing in the .Civil Code authorizing the alienation of any property beyond that mentioned in section 164.
*271To this effect Sánchez Román (Tomo Quinto, Volumen 2 of the second edition, page 1149) in discussing the alienation of the property of minors, says:
“In regard to the alienation of real estate, although the Code treats only of that of real property, it is not to be doubted that the doctrine of the said Title II, Book III, of the Law of Civil Procedure, and that of the paragraphs 2 and 4 of section 2011, should be considered as subsistent and applicable with regard to chattels, effects and valuables, rights and jewels, which must be considered as subject to the proceeding of judicial authorization for their alienation, in those cases where they belong to persons under twenty-three years of age, whatever the legal situation may be in which they may find themselves, whether they he free from the paternal authority or subject to the same, inasmuch as the law says only ‘minors;’ and were it otherwise, it would be necessary for the Code to contain a section which authorized the father to effect the alienation himself or to accomplish the same by means of other proceedings than those which the Law of Civil Procedure has established in the aforesaid title; especially as, if the Code has considered the guarantees of proof of the necessity and utility, judicial authorization and hearing of the prosecuting attorney as indispensable for the alienation of real estate, there is no reason whatever (on the contrary, because of the value or their importance, which may be greater) why any one of the aforesaid guarantees should be omitted in the alienátion of the same, and it would be very dangerous and risky to choose such construction, ;iri view of the silence of the text of the Code, and disregarding those of the Law of Civil Procedure. ” ' : ■
Nor is there any presumption in favor of the patria po-testas by reason of any silence in the Code. ‘The almost universal tendency in every country in applying the civil law has been to limit the patria potestas, and especially with respect to the property of children. Scaevola in his opening comment on Title VII says:
“0/ the Paternal Authority. — Of the patria potestas, a peculiar juridical institution of the Roman law, only the name is preserved. Its essential qualities, its characteristic requisites, have disappeared; *272some have been lost in the course of time and others blotted out by the legislator on account of their being in conflict with the ideas prevailing in society at the time. Our Code reflects said transformation.”
The champion of the patria potestas may then eventually be compelled to resort to section 2010 in order to find any 'authority for the alienation of children’s property when the proposed subject of the alienation is other than real estate.
When it is considered that the actual property in question is real property belonging to the society, the reason for the rule established in section 164 as well as in sections 2010 et seq. will be very thoroughly vindicated. The complainant asks that the status quo be restored, and while this may cause some disturbance in the affairs of the society, it is not an inequitable demand.
For the reasons given I am of the opinion that the judgment of the court below should have been affirmed.
MR. JUSTICE MACLEARY.