Renter v. Bauer

By the Cowrt, Crozieb, C. J. The appeal in this cause was sought to be taken under sections 232 et seq. of the act concerning executors and ad [505] ministrators, approved Feb. 3d, 1859. (Comp. L., p. 546.) It therefore becomes necessary to determine whether those provisions are still in force. In 1860 the legislature passed an act upon the subject of appeals from the Probate Court, which was intended to and did cover the whole subject, and the 22d section of which repealed expressly all laws in conflict therewith. There being some difference in the mode of appeal provided by the two statutes, the latter became the only law in force. The act of 1860 was directly and effectually repealed by the act of March 6th, 1862. (Comp. L., p. 81.) After which, there remains no law upon'the subject, unless the repeal of the act of 1860 operated to revive the act of 1859. Such a construction is positively prohibited by section 16 of article 2 of the constitution. It is in these words: “ No bill shall contain more than one subject which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” This language is clear and explicit, and this court is bound to give it effect. If the legislature did not deliberately intend to abolish appeals from the Probate Court, it is to be regretted that it was not more careful in its action upon the subject. But whether the present condition of the law is the result of oversight or deliberate intention, this court is bound to administer it as it finds it. The act of 1859 cannot be considered revived without doing violence to the plain letter of the constitution, which we have neither the disposition nor the rightful power to do. The judgment must be reversed and the cause sent back with instructions to the District Court to sustain the motion to dismiss the appeal. All the justices concurring.