Board of Administrators of the Charity Hospital v. Girardey

The opinion of the Court was delivered by Fenner, J. The sole question presented in this case is whether defendant, a public auctioneer, is liable for the duty imposed by sections [606] 145 and 161 of the Revised Statutes, in so far as the same is demanded on succession, insolvent and judicial sales made by him. We considered this question very thoughtfully in the case of State vs. Girardey, 34 A. 620, wherein we said: “The law makes no distinction whatever in favor of such sales. The language is, ‘all property, rights or credits, which shall be sold at public auction, or at private-sale, by any auctioneer (except such asare or may be exempted by law) shall be subject to a dirty, etc., R. S- 145.’ Unless there exists some law exempting' sales of the sort above mentioned, they fall necessarily within the purview of the statute. We know of, and have been referred to no such law.” The defendant now claims to have discovered such a law, in the act of January 15, 1805, chap. IY. of the acts of that year. The discussion at bar was confined to the question whether or not the terms of that law covered such an exemption and it is one not free from difficulty. We are relieved from its consideration, however, by our clear conviction that the act of 1805 is repealed by the final sections of the Revised Statutes of 1870, which declares that, “all laws or parts of laws contrary to or in conflict with the provisions of this act, and all laws or parts of laws on the same subject matter, except what may be contained in the Revised Civil Code and Code of Practice of the present session, be and the same are hereby repealed,” etc. R. S., sec. 3990, To ascertain the identity of the subject matter of the act of 1805 with that included in the Revised Statutes, it is only necessary to refer to the respective titles and provisions of the two laws, The title of the act of 1805 is “An Act to regulate sales at auction; ” whereas, that of the Revised Statutes, as relating to this subject, is “relative to auctioneers; to the manner in which persons may become auctioneers; their duties, powers, fees and privileges; the taxes tobe paid by them; the penalty for disobeying law; and mode of making their sales.” The latter title will be found to cover and include all the purposes and provisions of the act of 1805. The identity of subject matter is perfect. Unless, therefore, the provision of the act of. 1805, from which it is now claimed that exemption results, has been, perpetuated either in the Revised Statutes or in the Civil Code of Practice, it is clearly and unequivocally repealed. The incorporation of the words “except such as are or may be exempted by law,” cannot affect the case. [607] The exception still strictly confines the exemptions to those established by law, and when the law establishing them falls by repeal, the exemptions necessarily fall with it. There is no room for construction here. The identity of subject matter is complete and the terms of the repealing clause unambiguous. The very purpose of the Eevised Statutes was to embody in one compendious and general statute all the scattered provisions of prior statutes of the State, and to enable the searcher after the law to be secure, that, as to the subject matters embraced therein, that statute, with the codes, contained the entire statutory law then left in force. It is a conclusive presumption that all prior statutes were passed in review, that those provisions which the legislator desired to perpetuate, were embodied therein, and that all omitted provisions were designedly repealed. We nrust do nothing to imperil the confidence with which the people and the profession have the right to rely on this presumption, by indulging in conjectures as to the legislative intent, which may or may not be well founded. The fact that in the revision of the statutes made under legislative authority in .1852, the provisions of the act of 1805 now relied on were extended, lends strong force to the conclusion that their omission in 1870 and consequent repeal, was not only legally effective but also intentional. This leaves the question in the precise status which it occupied at the date of our former decision, from which we see no reason to recede. Since that decision, a session of the General Assembly has been held, at which this duty was considered ( Act No. 53 of 1882 ) and another session will speedily occur. If, unwittingly, we have contravened the legislative will, a remedy, at least for the future, may be found. Judgment affirmed.