(dissenting):
I am compelled to dissent from the opinion of the ■court. The facts are not in dispute, and are as stated. The only question is, was the law such in 1874, when the decedent died, that an illegitimate or polygamous child was entitled to share in his father’s estate? By the law of 1852 of the Territory of Utah, “illegitimate children * * * inherit in like manner from the father, whether acknowledged by him or not, provided it shall be made to appear to the satisfaction of the court that he was the father of such illegitimate -child or children.” “In like manner” (referring to other portions of the act) means as legitimate children. There is no question made, nor could any be successfully made, that the rights of illegitimate children are a rightful subject of legislation. Therefore, if this law was in force .at the time, in 1874, when the decedent died, there can *58be no doubt that the appellants were entitled to a share-of their father’s estate. It was in force so far as any act of the Territorial Legislature at that time was concerned,, for it had not been repealed or changed by that body. .But the contention of the respondents is that it was annulled by the act of Congress - of 1862, found in 1 Comp. Laws Utah, p. 109, § 2, which annuls the act in the Territory of Utah incorporating the Church of Jesus Christ of Latter-Day Saints, and all other acts or parts of acts heretofore passed by said Legislative Assembly of' the Territory of Utah which establish, support, maintain,, shield, or countenance polygamy by providing that the-purpose of this act shall be “only to annul all acts and laws which establish, maintain, protect, or countenance the practice of polygamy, evasively called f spiritual marriage,’ however disguised by legal or ecclesiastical solemnities, sacraments, ceremonies, consecrations, or other contrivances.” It is contended that the act of Congress annuls the act of the Legislature of Utah giving the right to illegitimate children to share in the father’s estate, because such right of inheritance supports, maintains, and encourages polygamy.
The purpose of the act of Congress of 1862 was to-define and punish polygamy, and to annul all laws of the Territory in any way making it legal or giving it countenance and support. Nothing is said in the act of Congress in reference to the rights of illegitimate children,, and if that subject was in the mind of Congress it would have been expressed, and not left in doubt or uncertainty. Courts do not favor the repeal of laws by implication, and laws are never interpreted to repeal former-laws, unless the two are so repugnant that they cannot both be administered and allowed to stand. U. S. v. Sixty-Seven Packages, 17 How. 85; Red Rock v. Henry, 106 U. S. 596, 1 Sup. Ct. Rep. 434; Ex parte, Crow Dog. *59109 U. S. 556, 3 Sup. Ct. Rep. 396; Chew Heong v. U. S., 112 U. S. 556, 5 Sup. Ct. Rep. 255. And certainly the same course of interpretation applies with equal, if not more, force to the annulling of laws. The law of the Territory was before the Congress, and how much easier it would have been to annul this Territorial „act by name, if it had intended that, than to have left its annulling to judicial interpretation by a sweeping clause that reads more like the rounding up of sentences in a stump speech than a solemn act of the highest legislature of the nation. This law of inheritance was before Congress, and if the meaning is to he given to these-general words claimed, it clearly abdicated its functions,, and left to the courts to make and annul laws by judicial interpretation. It cannot be supposed Congress intended any such thing. Courts are human, and sometimes not overburdened with wisdom, and it would be, if such a thing can be supposed, a more dangerous exercise of legislative authority to form laws so as to leave to judicial interpretation their enlargement and annulling. Where the law would begin, and where it would end,, would be left to conjecture and uncertainty. The law is-uncertain enough interpreted as best it may be by the-courts; and if the interpretation contended for was given, conjecture and uncertainty would be vastly increased. “It is always to be presumed that the Legislature when it entertains an intention will express it, and that in clear and explicit terms.” Potter’s Dwar. St. 219. If this Territorial law is annulled, a right is taken away, and all such laws are in the nature of a penalty, and are stricti juris, and are not to be extended by intendment.
Another course of construction in such statutes is that where general words follow the enumeration of particular cases such general words are held to apply to caseB of the same kind as particularly mentioned; for example, *60-“An act of pasturement provided that whoever stole sheep or other cattle should he deprived of the benefit ■of clergy; and the courts held that ‘ other cattle ’ only meant sheep.” Id. 220-227. The words of the acts of ■Congress that is claimed annul the act of the Htah Legislature are, “which establish, support, maintain, shield, •or countenance polygamy,” etc. Afterwards there are words of explanation, but words of explanation cannot •enlarge the meaning of the words they are intended to explain. These words are to be interpreted according to their common or ordinary meaning. Allowing illegitimate •children to inherit from their fathers does not establish polygamy; does not support it; does not maintain it; does not shield it; does not countenance it; for it is consistent with the severest punishment of polygamy and its entire ■overthrow that illegitimate children should inherit from ■their fathers. Therefore, I do not think it repeals or .annuls the act of the Territorial Legislature giving to illegitimate children the right to inherit. I am strengthened in this opinion by the act of Congress of 1882 (called the “Edmunds Act”), § 7. That clearly shows that it was not the intention of Congress to disinherit polygamous children, for it says all polygamous children born before the 1st day of January, 1883, shall be legitimate, making it clear that in the mind of Congress nothing was intended by the act of 1862 to disinherit polygamous children. The act of the Legislature of Utah ■says nothing about polygamous children. It only says illegitimate children, but the act of Congress goes further, and says polygamous children shall be legitimate. If, therefore, the Territorial law, by inference, encouraged .and countenanced polygamy, much more did the law of Congress, and that idea cannot be entertained for one moment. Again, the act of Congress of 1887, in the ■eleventh section, provides that no illegitimate children *61shall thereafter inherit from their parents, and annuls-all laws of the Territory in reference thereto, but continues the power to inherit to all children horn within twelve months after the passage of this act. So that if allowing illegitimate children to inherit from their fathers encourages polygamy, Congress -is guilty of fostering that institution; for the period of gestation is nine months. That leaves three months for men to beget illegitimate children, and encourages polygamy for that length of time. But does, in the nature of things, the permission of illegitimate children to inherit of their fathers encourage or countenance polygamy? If so, how? It would certainly increase the hostility of the lawful wife to-polygamy, and the opposition of her children, for it would lessen their inheritance, and it would not increase the man’s passions or his love of lechery and dissoluteness. It only takes from the illegitimate the stain of bastardy, and places it on a plane where it will not be an outcast without recognized relationship or family.
Looking over these statutes, and remembering the condition of things in the Territory of Utah at the time, I am forced to the opinion that the act of Congress of 1862 did not annul the act of the Legislature 'of Utah of 1852, allowing illegitimate children to inherit. It certainly did not in terms, and can be made to only by an interpretation that amounts to judicial legislation. Why should Congress leave to the courts to hunt out .the laws of the Territory it intended to annul, when the laws of the Territory were before it? Whose duty was it to point out the laws that maintain and encourage polygamy, the-Congress’ or the courts’? If Congress pointed them out, the question was definitely settled. If left to the courts uncertainty would arise, and differences of interpretation would invariably occur, and the administration of the-law would be rendered uncertain. These remarks only *62-show that it could not have been the intention of Congress to leave to judicial acumen the finding of those laws of the Territory that might be thought to maintain -and encourage polygamy. It is said, however, that that part of the law which allows the mother of illegitimate ■children to inherit clearly encourages polygamy. That question is not in this ease, and if courts decide the ■questions before them they will be busy enough. But it may be remarked that it does not follow that because the mothers of illegitimate children are allowed to inherit 'encourages polygamy, the inheritance of their children would or does encourage that vile practice. The Congress may have had in mind the allowance of mothers of illegitimate children to inherit when it used the expression “ parts of laws.” I do not think it follows that Con.gress, when it passed the law of 1862, had in mind the right of illegitimate children to inherit from their fathers, .as encouraging and supporting polygamy, because it was well known at that time that it was extensively practiced in Utah Territory. The right of illegitimate children to inherit from their fathers has been universally upheld .and permitted from 1852 until now, and the title to much property is based upon its validity, and courts will not and ought not to declare that law invalid without weighty i’easons. I think the law of the Territorial Legislature •of 1852 was in force at the time Lewis Handley died, and that the appellants are entitled to share in his estate.