City of Emporia v. Norton

16 Kan. 236

• Court: Supreme Court of Kansas
• Decided: January 15, 1876
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

A motion for a rehearing in this case has been made, and an extended written argument filed in support thereof. The point made is this: The court in the prior opinion rested the decision upon the curative effect of the 41st section of ch. 100 of- the laws of 1872. The work, payment for which the city was seeking to collect, was done in 1871. This curative section was enacted subsequently, in 1872, and we held it valid, and applicable to the proceedings in question. Now counsel contends that this 41st section is substantially the same as the 20th section of ch. 62 of the laws of 1871, and must therefore be considered as enacted in 1871, and before instead of after the work. He rests this claim upon a rulfe for the construction of statutes found on page 999 of the Gen. Stat., which reads:

“ The provisions of any statute, so far as they are the same as those of any prior enactment, shall be construed as a continuation of such provisions, and not as a new enactment.”

This, as are all the other rules of construction, is subject however to this important qualification which prefaces them: u In the construction of the statutes of this state the following rules shall be observed, unless suoh construction would be inconsistent with the manifest intent of the legislature, or repugnant to the context of the statute.” Now in determining the intent of the legislature we are not limited to a mere consideration of the language employed. We may properly look to the purposes to be accomplished, the necessity and effect of the enactment under the different constructions suggested. Thus, if the legislature should pass at one session an act for raising revenue, which should specify no year, but simply direct the levy of a certain tax, and the succeeding legislature should pass an act in exactly the same language, no one would contend that the second was a mere continuation of the first, taking effect as of its date, and providing for no new levy. For the manifest intent of the legislature, an intent not manifested by the form of words, but by the purposes to be accomplished, and the surrounding circumstances, repudiates such a construction. So, if in 1875 the legislature had passed an act in exactly the same language as ch. 20 of the laws of 1874, appropriating $7,000 to the Leavenworth Protestant Orphan Asylum, is it not plain that the same would have accomplished a new donation ? So again, if year by year we found the legislature passing acts in the same terms, validating defective tax proceedings, and curing irregularities therein, would not every one be constrained to say that these successive acts should be construed as separate enactments, each operating upon all defects and irregularities prior to it, and not as simply a continuation of the first and operating only .upon matters prior to that? For otherwise, why this repetition of laws? In the illustration last cited the first enactment would cure (so far as remedial legislation can cure) all the preexisting irregularities and defects; and a. mere repetition would add nothing to its curative power. And to impute to the legislature an intent to go through the form and time and expense of legislation to do that already fully and completely done, is unwarranted.

Now, is there any principle underlying these several cases of legislation which serves to indicate the legislative intent— any fact which makes plain its purpose? This fact is evident in reference to them all. The earlier act had accomplished its purpose, and spent its force prior to the enactment of the second. Much of legislation, perhaps most, is prospective in its reach, and, so to speak, of continuing operation. That is, it establishes a rule of action for future and indefinite time, operating upon all matters which may thereafter arise coming within its terms. Thus, the crimes act, defining what shall constitute certain offenses, and prescribing penalties therefor, operates upon all acts thereafter done coming within its terms. In case of a repetition of such legislation it may well be held, in view of the rule of construction above quoted, that in the absence of any particular matters indicating a contrary intent, the second enactment simply keeps alive and continues in force the prior. This preserves that continuity in legislation which is the evident purpose of the rule. It prevents those unfortunate breaks and interruptions, with their deplorable results, which in the absence of such a rule have been so often felt and so frequently noticed by courts here and in other states. But there is some legislation which, though prospective, operates only for the performance of a single definite act; and some retrospective, operating upon existing and past circumstances, and defining the rights and obligations derived therefrom. In both such cases the law is without any continuing force. In the first case, when the act authorized or required has been done, the law has exhausted its purpose, and spent its force. And in the second, it accomplishes its purpose at the very moment of its passage. In a certain sense it dies at the moment of its birth. Thus, an act authorizing an appropriation, accomplishes its purpose and exhausts its force when the appropriation has actually been made; and an act validating prior defective acknowledgments, or irregular tax proceedings, accomplishes its purpose as soon as it is passed. It becomes no stronger by lapse of time, and reaches and operates upon no other matters. Now in such cases, if a succeeding legislature enacts a similar law it cannot be that the legislature intended simply a continuation of the prior law, for there is really nothing to continue — that law has ceased to have force. It has no living, present operation, nothing to be continued. And the only way in which an intent to accomplish anything can be established is by construing the later law as a new enactment. It must be presumed that the legislature was familiar with the rules it had laid down for the construction of its own enactments, understood the scope and effect of its legislation, and by every law intended to accomplish something. We think therefore that this may be stated as a general rule, that where the legislature enacts a law which is the same in terms as a prior statute, if such prior statute has wholly accomplished its purpose, aud spent its force, the latter law must be held, notwithstanding the rule of construction quoted, to be a new enactment, and not merely a continuation of the former. We have given this subject careful thought, for our first impression, after reading the brief of counsel, was, that his point was a good one. But the disastrous results which would flow from making this rule one of general application caused us to hesitate and reexamine the matter. That reexamination has satisfied us of the soundness of the distinction we have drawn between the classes of legislation as affected by this rule. Upon that, this motion is decided. We may be pardoned also for suggesting this query: Does the rule in any case prevent the later law from operating as a law of the date of its passage upon all matters within its terms ? Is it not satisfied when it preserves a continuing force to the legislative command, a continuing operation to the legislative rule, leaving to each law to act as a present expression of legislative .intent upon all matters within its terms? Must both laws in effect bear date as of the time of the enactment of the first? We have assumed in this case that the law of 1871 was purely retrospective in its operation; that it applied only to prior defects and irregularities, and was not intended to apply to defects that might thereafter arise in subsequent tax proceedings. Such is the claim of counsel, and for the purposes of this case and argument we do not question the claim. We have also assumed that there is such a similarity between the two statutes as to bring them within the terms of the quoted rule, although the latter law speaks of “taxes and assessments for improvements,” while the language of the former is “taxes for improvements.” The claim of counsel is, that the context makes it plain that this expression was intended to include both taxes and assessments in the sense that these terms are generally used. To sustain this claim he has devoted a large portion of his argument. Yet conceding both these matters to be as counsel claims, we are constrained, for the reasons given, to decide adversely upon the main question, and must overrule his motion.

All the Justices concurring.