Hastings v. Aiken

67 Mass. 163

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1854
• Status: Published

Opinion

Dewey, J.

The facts admitted by the parties bring the case within the statute of 1810, c. 124. Although not entirely a new building, yet it was a building remodelled, extended in size, and fitted up for a new purpose, and that designed and adapted for use “ as a stable for the taking in and keeping horses upon hire or to let, commonly called a livery stable.”

The question then arises, whether that statute is repealed, or now exists in full force. It is insisted on the part of the defendant that the St. of 1814, c. 74, has effected its repeal. This latter, statute made new provisions upon the same subject. It was less onerous in the restriction as to the distance from any church or meeting-house, prescribing one hundred and thirty feet instead of one hundred and seventy feet, and also imposed a somewhat smaller penalty for the violation of the statute. In terms, it did not repeal the statute of 1810 ; and such repeal, if effected by it, was by implication merely, and because it was a later statute on the same subject and containing provisions inconsistent with the former statute. The statute of 1814, c. 74, being in direct terms applicable to Boston, and having the provisions above stated, was inconsistent with St.. 1810, c. 24, and did therefore by implication operate to repeal it.

But the statute of 1814, c. 74, was directly repealed in the course of a few months after its enactment, by St. 1814, c. 156. The further inquiry here arises as to the effect of the repeal of St. 1814, c. 74. Did its repeal revive the act of 1810, c. 124 ? That such is the effect of the repeal of the repealing act has become the settled law of this commonwealth. It was so held in Commonwealth v. Mott, 21 Pick. 502. The question was more fully considered, and with the like result, in the case of Commonwealth v. Churchill, 2 Met. 118. It is a part of the common law, and is thus stated in 1 Bl. Com. 90: “ If a statute, that repeals another, is itself repealed afterward, the first statute is hereby revived, without any formal words for that purpose.” See also 2 Dwarris on Statutes, 675. This rule has so long existed and been so often acted upon, that it must be changed, if at all, by a legislative act to that effect.

It, was suggested at the argument, that a different rule might be applicable to the statute under consideration, as its repeal was by implication only. But its repeal in the latter case is wholly effected by the enactment of a subsequent statute, and that statute being repealed, there is no longer any statute inconsistent with the former. We cannot perceive any sufficient reason for taking a distinction between the cases of a repeal of a later statute directly repealing a former one, and that of a repeal of a later statute repealing the former by implication. In both cases, the repealing statute being repealed, the former statute remains.

The further question is, whether the Rev. Sts. c. 58, § 4, have not, by the enactment on this subject of livery stables, embraced the cases within the statute of 1810, c. 124, and so virtually repealed that statute ? In terms, the provision of the Rev. Sts. seems to apply to towns; the license is to be granted by the selectmen, and there is no provision for any action by the board of aldermen or common council. But if that were no sufficient objection, the farther answer is, that the two acts are not conflicting or inconsistent with each other; one regulating especially the erecting of such stables in the proximity of any church or meeting-house in Boston; and the other making provision of a more general character, and in reference to the security and convenience of the public generally. It is to be further remarked that the provision of the Rev. Sts. c. 58, § 4, is a reenactment of the more ancient statute of 1796, c. 88, § 5. That statute was in operation when the St. of 1810, c. 124 was enacted, making special provisions for Boston. The act of 1810 was deemed ancillary to the other, and not inconsistent with it, as we must suppose. The act of 1796, c. 88, has been brought forward as a part of the revised statutes, and in this form its provisions have the same relation to the act of 1810, c. 124 which they had before the revised statutes.

Upon the whole matter, the court are of opinion, that the plaintiff is entitled to maintain her action, and recover the penalties for the violation of the provisions of St. 1810, c. 124.

Judgment for the vlaintiff.