State Ex Rel. Blossom v. Horton

By the Court, Murphy, J.: An act of the legislature was approved March 5, 1887 (Stat. *302 1887, 13.119), entitled “An act to encourage the sinking of artesian wells.” The first section reads as follows: “ Every person, firm, company, corporation or association that shall, after the passage of this act, commence the sinking of artesian wells, shall be entitled for sinking such artesian well, where flowing water is obtained, the sum of one dollar and twenty-five cents per foot, to be paid in the manner provided for in section 4 of this act; provided, that no bounty shall be paid on any well which does not furnish seven thousand gallons of water each twenty-four hours, flowing continuously for thirty days; and pi'ovided, further, that bounties shall not be paid in more than three wells in each county within this state; and provided, further, that no two wells shall receive a bounty if located within ten miles of each other.” Sections 2, 8, 4 and 5 relate to the manner of proceeding and drawing the money from the treasury after the flow of water is obtained. Section 6 appropriates ten thousand dollars from the general fund to pay bounties. On the 7th day of March, 1889, the legislature amended section 1 of the act of 1887 (Stats. 1889, p. 84): “Section 1. Every person, firm, company, corporation or association that shall, after the passage of this act, commence the sinking of artesian wells, for stock or agricultural purposes, shall be entitled for sinking such artesian well, where flowing water is obtained, the following specified sums: For the first two hundred feet, one dollar and twenty-five cents per foot; for the third one hundred feet, one dollar and fifty cents per foot; for the fourth one hundred feet, two dollars per foot; for the fifth one hundred feet, two dollars and twenty-five cents per foot; for the sixth one hundred feet, two dollars and fifty cents per foot; for the seventh one hundred feet, three dollars per foot; for the eighth one hundred feet, three dollars and fifty cents per foot; for the ninth one hundred feet, four dollars per foot; for the tenth one hundred feet, four dollars and fifty cents per foot; for all depths exceeding one thousand feet, five dollars per foot for each and every foot below the said one thousand feet, and an additional bounty of one thousand dollars for every well sunk to the depth of one thousand feet or more; provided, that such well shall furnish twenty thousand gallons of water each twenty-four hours, flowing continuously for thirty days; said sums to be paid in the manner provided for in sections four and five of this act; provided, that no bounty shall be *303 paid on any well which does not furnish seven thousand gallons of water in each twenty-four hours, flowing continuously for thirty days; and provided, further, that no two wells shall receive a bounty if located within the same county. Where two or more wells within the prescribed limits apply for a bounty, the well which first furnished the amount of water required by this act shall be entitled to the bounty allowed by this act.” Section 6 re-appropriates the sum of ten thousand dollars from the general fund to pay bounties. Sections 2, 3, 4 and five of the act of 1887 are not copied into the statute of 1889, but are merely referred to by the sections, nor is there any repealing clause in the act of 1889. The admitted facts are, that on or about the 24th day of May, 1890, the relator and one S. L. Oalioon made and subscribed to the affidavit, as required by section 2 of the act of 1887, and proceeded to sink a well; that said well was sunk to a depth of eight hundred and ten feet, was five inches in diameter and flowed one hundred thousand gallons of water in each twenty-four hours for thirty days continuously; that relator made his report to the board of county commissioners of Lander county, as required by section 3, and received a certificate from said board, as provided for in section 4 of the act of 1887; that a claim for one thousand seven hundred and sixty-five dollars, as bounty, was presented to the state board of examiners, and was on the 9th day of July, 1891, approved and allowed by said board. On the 10th day of July, 1891. said claim, with the indorsements thereon, was presented to the state controller vdth the request that he should draw his warrant on the treasurer for the amount therein specified, but to draw the said warrant the controller refused and still refuses to do so, giving as his reasons for such refusal that- the appropriation had lapsed, and that there was another well sunk on the same quarter section of land, for which a bounty had been paid prior to the sinking of the well by the relator. Whereupon the relator sued out the alternative writ of mandamus herein. The attorney for relator argues that the amendatory act of 18S9 repealed section one of the act of 1887, and that when the relator commenced sinking his well in 1890, the law under which he proceeded should be read and construed as if no law on the subject had existed prior to the 7th day of March, 1889; and the fact that a well had been sunk on the same quarter *304 section of land, and a bounty paid thereon, could not and did not operate to defeat the right of the relator to collect the bounty for the sinking of his well. We cannot agree with him in any such conclusion. The act of 1887 was passed to encourage and aid if possible in developing the resources of the state, and to encourage the expenditure of labor and money in seeking to discover water for domestic, agricultural, and grazing purposes; and as an incentive for such expenditures, the state agreed by said act to aid in such developments by the payment of bounties. In 1889 the legislature must have become satisfied that the act of 1887 was too liberal in its provisions and not sufficiently restrictive. They therefore amended section one, and the said amendment is, in its terms, more guarded, definite and restrictive. But the provisions of the act of 1887 are not repealed. The effect of an amendment of a statute made by enacting that the “ act is hereby amended so as to read as follows,” and then incorporating the changes or additions with that portion of the former act that is retained, is not that the portions of the amended act which are merely copied from the original act are to be considered as having been repealed and again re-enacted. The part which remains unchanged is to be considered as having continued to be the law from the time of its first enactment. (Holbrook v. Nichol, 36 Ill. 167; Kamerick v. Castleman, 21 Mo. App. 590; Parsons v. Circuit Judge, 37 Mich. 290; Walker v. State, 7 Tex. App. 256; Suth. St. Const. See. 134.) It is a fundamental rule that repeals of statutes by implication are not favored in law. To constitute the repeal of an act of the legislature by implication, the new statute must cover the whole subject matter of the old one. There must be an irreconcilable repugnancy between the two acts, and the repugnancy must be plain and unavoidable. Under the act of 1887, where a well was sunk from which was obtained a flow equaling seven thousand gallons of water in each twenty-four hpurs for thirty days continuously, the party sinking such a well was entitled to receive, as bounty, one dollar and twenty-five cents per foot, regardless as to the depth of such well. The provision was enacted in this manner to induce, if possible, parties to sink wells, and to demonstrate the fact that there was water flowing beneath the surface of the soil that could be brought to the surface by the boring of artesian wells. That fact having *305 been established, the legislature of 1889, wishing to encourage the sinking of deep wells, fixed the bounty, “ for the first two hundred feet, one dollar and twenty-five cents per foot,” and increased the bounty for each and every hundred feet thereafter sunk, until the well reached the depth of one thousand feet; and in ease the well was sunk below one thousand feet, and flow of water to exceed twenty thousand gallons in each twenty-four hours was obtained, the person sinking such well was entitled to receive an additional bounty of one thousand dollars. Under the act of 1887, bounties could be obtained on three wells in one county, provided their locations were more than ten miles apart. Under the act of 1889, but one well in each county could receive a bounty. We are satisfied that, where a party had sunk a well and obtained a bounty under^ and by virtue of the act of 1887, that it was not the understanding nor intention of the legislature that another person could have entered upon the same quarter section of land, sink a well and obtain the bounty under the provisions of the act of 1889. We are supported in this conclusion from the reading of the closing paragraph of section one of the act of 1889, which reads: “Where two or more wells within the prescribed limit apply for a bounty, the well which first furnished the amount of water required by this act shall be entitled to the bounty allowed by this act.” The prescribed limits, under the act of 1887, ten miles; under the act of 1889, one in each county; amount of water, seven thousand gallons. The relator having sunk his well on a quarter section of land where one had been sunk by other parties, and the bounty as provided for under the act of 1887 paid, he cannot recover a bounty for sinking his well. From the view we have taken of this case, it is unnecessary to pass upon the question raised as to whether the appropriation of ten thousand dollars reverted to the general fund on the 31st day of December, 1890, or not. Mandamus denied.