I dissent from the order denying a rehearing herein for the reasons mentioned in my original dissenting opinion in this case. The following authorities sustain the views therein stated: End. Interp. St. 194, citingMorisse v. Royal British Bank, 1 C. B. (N.S.) 67; Wallace v. Blackwell, 3 Drew. 538;Rex v. Dove, 3 Barn. Ald. 596; andPowers v. Shepard, 48 N.Y. 540. Also Sections 567-569, and Section 490 of Endlich; Suth St. Const. 137, and cases cited; also Section 161.
Endlich, in said Section 194, says: "It has been held that where a statute merely reenacts the provision of an earlier one it is to be read as part of the earlier statute, and not of the reenacting one, if it is in conflict with another passed after the first, but before the last, act; and therefore does not repeal by implication the intermediate one. And the reenactment, at the same session of the legislature, of certain sections of one act in a subsequent one, providing, except in the reenacted sections, a different scheme from the first, was held not to work a repeal by implication of those sections in the first act; and a provision in the second act suspending the operation of those sections in it did not suspend the operation of the same sections in the first act, according to which they were to take effect at once."
In Section 368 Endlich says: "Where, indeed, the two actsin pari materia are almost precisely alike in the provisions under construction, it is said that the decisions upon the earlier will be considered as authority in the interpretation of the later act. In other words, the reenactment of a statute which has received a judicial construction in the same, or substantially the same, terms, amounts to a legislative adoption of such construction, whether such reenactment is by way of an isolated and independent statute, of the incorporation of several former statutes into one, or of their incorporation in a code or revision of statutes. That is to say, it is a legislative adoption of its known construction; so that that judicial construction which has been reported is to be deemed to have been adopted, notwithstanding there may have been other judicial expositions differing from the same, but remaining unreported at the date of the new enactment." *Page 271
And in Section 490 Endlich says: "It seems, indeed, to be the general understanding that the reenactment of an earlier statute is a continuance, not a repeal, of the latter, even though the later act expressly repeals the earlier. The mere reenactment of an existing law in the same or substantially the same terms, without words of repeal, and in the absence of conflict, or an intention to supersede, does not, of course, necessarily repeal the old law. But even a repealing act reenacting the provisions of the repealed statute, in the same words, is construed to continue them in force without intermission; the repealing and reenacting provisions taking effect at the same time. So it was held that, where an act repealing another, which provided for the appointment of certain officers, instantly, by the second section, reenacted the repealed act, the repeal was rendered inoperative, the former law left in force, and the officers appointed under the same, whose terms of office had not expired, remained in office. So the repeal of a general corporation law by a statute substantially reenacting and extending its provisions does not terminate the existence of corporations formed under it, but it is to be regarded as a continuance, with modifications, of the old law. The principle has been applied also to a revision which repealed the acts collated and consolidated, but immediately, in its own provisions, reenacted them literally or in substance, so that there was never a moment when the repealed acts were not practically in force. So the repeal and reenactment, in a revision of laws, of a statutory provision authorizing a town to make a certain by-law was held not to affect the validity of the by-law. And it' has been applied to criminal statutes, so as to permit a conviction for an offense against the reenacted old law, even where the reenacting law undertook to repeal it; the reenactment being construed a continuance."
Sutherland, in Section 137 of his said work, says: "Laws are presumed to be passed with deliberation, and with a knowledge of all existing laws on the same subject. If they profess to make a change, by substitution, of new for old provisions, a repeal to some extent is thus suggested, and the extent readily ascertained. Thus, amendment is frequently made by enacting that a certain section shall be so *Page 272 amended as `to read as follows'; then inserting the substituted provision entire without specification of the change. The parts of the former law left out are repealed. This intention is manifest. There is a negative necessarily implied that such eliminated portion shall no longer be in force. The reenacted portions are continuations, and have force from their original enactment."
And in Section 161 Sutherland says: "Where two statutesin pari materia, originally enacted at different periods of time, are subsequently incorporated in a revision, and reenacted in substantially the same language, with the design to accomplish the purpose they were originally intended to produce, the times when they first took effect will be ascertained by the courts, and effect will be given to that which was the latest declaration of the will of the legislature, if they are not harmonious. An existing statute is not to be considered as original because it is embodied in a revision, and therefore is not to be construed on the theory that none of its provisions have been in effect prior thereto. The appearance of such a statute in the form and body of a revision has no other effect than to continue it in force."
The note to page 157 of 15 Am. Dec. is as follows: "What effect reenacting the general provisions of a statute has upon the exceptions to such general provisions. The doctrine laid down in this case has been uniformly accepted and approved in Louisiana. InValsain v. Cloutier, 3 La. 177, the court say: `The question then recurs, does the reenactment in our code of a general provision existing in the Spanish law repeal the exception which accompanied it in that law? We have so repeatedly decided the contrary, and the jurisprudence of the court is so fixed in this matter, that it is unnecessary to refer to cases in which the principle has been settled.' The court held, inHerman v. Sprigg, 3 Mart. (N.S.) 199, that `the reenactment of a general provision contained in a former law, to which an exception was attached, does not repeal that exception; because the intention to repeal is never presumed, and both provisions may well stand together.' The doctrine of these cases is fully sustained by the following decisions: Nathan v. Lee, 2 Mart. (N.S.) 32; Duncan's Exrs. v. Hampton, 6 Mart. (N.S.) 31; Verret v. Theriot,15 La. 110; Le, *Page 273 Blanc v. Landry, 7 Mart. (N.S.) 688;Urquhart v. Sargent, 2 La. Ann. 201;McCarty v. Press Co., 5 La. 21."
I cite also the note on page 67 of 26 Am. St. Rep., and cases there cited.