Gordon v. State ex rel. Boder

— 498 — By the Court, Safford, J. A large number of points have been raised and industriously argued by the counsel on either side, in this case, and we may be permitted to say that in fortifying the positions which they have respectively taken, they have exhibited unusual zeal and ability, as well as learning in the law. But, inasmuch as our views upon a single question will dispose of the whole case, as far as we are concerned, we shall not- need to avail ourselves of the extended research of counsel, as directed to the solution of any other question than the one referred to. This question — and to it we shall confine our discussion — -is, as to the correctness of the conclusions of law found by the district court bn the trial of this cause. Without noting the statement of the case otherwise than by a reference to the conclusions of fact, as found by the court, and as they appear in the record, we proceed to state the conclusions of law, as follows, to wit: 1. That the said first election, held on the said 21st day of May, 1867, and all orders and acts whatsoever of the board of county commissioners of Doniphan county in relation thereto, up to the 27th day of May, 1867, were avoided and made of no effect by the repeal of the first section of the act of February 11th, 1865, under and by virtue of which first section of said act the said election was held, which repeal took effect on the said 27th day of May, 1867. 2. That the said second election, held on the said 4th day of June, 1867, not being founded on a previous subsisting election, and not being held under the provisions of the act of February 26th,-1867, which became — 499 — a law by publication, on the 27th day of May, 1867, was void and of no effect. The first election referred to in the first conclusion of law found by the court, was held on the 21st day of May, 1867, and the condition of the statutes of this state, on the subject of elections for county seats, at that time was as follows: An act providing for the removal of county seats, and the permanent location of the same, was passed by the legislature of 1863, and approved March 2d, of that year. The first section of said act pointed out the way in which elections for the purpose named should be held, and also the preliminary requisites to the ordering of the same. The remaining sections provided for the canvass of the votes and the proclamation of the result, the removal of the records and other property of the county to the county'seat so determined, the rules to be observed in the conduct of elections under the act, who should be deemed qualified to vote at such elections, and what counties should not be included in the act. Thus stood the law until' the act of February 11th, 1865, was passed and went into operation. This act amended, in some respects, the first section of the law of 1863, and repealed section five of said law, which provided that the provisions of said act of 1863 should not apply to counties where their county seats had been located by a vote of the people therein. ■ No further legislation was had on this subject until the act of February 26th, 1867, which took effect and became a law May 27th, 1867. The election, then, which was held on the 21st day of May, was under and b^ virtue of the act of 1865, and the unrepealed portions of the act of 1863. By that election the question — 500 — as to what place should be the county seat of Doniphan county was not determined, and it was resubmitted under and by virtue of the provisions of the same acts under which the first election had been held; and said second election was ordered to be held on the 4th day of June, 1867, eight days after said act of 1867 became and was a law of this state! The act of February 26th, 1867, amended the first section of the act of February 11th, 1865, in some respects, and by express provision repealed that section, and contained no saving clause. In regard to the effect of a repealing statute, it seems that the law is well settled, and that where the repeal is clear and absolute, the effects are of a very sweeping character. (Sedgwick on Statutory and Constitutional Law, 129.) So, also, to like effect are the words of Tindal, C. J., quoted in Sedgwick, 129 : ‘ ‘ The effect of a repealing statute I take to be to obliterate the statute repealed as completely from the records of parliament as if it had never passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded while it was an existing law.” Upon this principle, the repeal of a' statute puts an end to all prosecutions under the statute repealed, and to ail proceedings growing out of it, pending at the time of the repeal. (Sedg. on Stat. and Const. Law, 130; 35 Maine, 345.) Such being the case, the repeal of the first section of the act of February 11th, 1865, by the act of February 26th, 1867, operated to put an end to the validity of said first section, and to put an end to and obliterate all acts done under and by virtue of said repealed section, which were pending and not concluded at the time the repealing statute went into effect, to wit, on the 27th — 501 — day of May, 1867; and we think that it was the intention of tiie legislature that this repeal of the first section of the act of 1865 should so, operate; otherwise, they would have incorporated a saving clause into the act of 1867 — and their failure to do this furnishes very satisfactory evidence of their intentions. But it is claimed that the first subdivision of § 1, ch. 188, Comp. L., 1862, has changed the rule of construction to which we have referred. It is there provided “that the repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any .right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.” The term £ £ proceeding,” as used in this portion of the statute, is the only one therein contained, which can, by any possibility, be held to apply to the elections involved in this case. .Does it so apply — or, in other words, were the acts and doings begun and carried. forward to the time of the ordering of the second election as shown by the record, proceedings within the meaning of the statute ? We think not. The term “proceeding” is a technical one, and has acquired a peculiar and appropriate meaning in law. In its general sense, in law parlance, it means all the steps or measures adopted in the prosecution or defense of an action. 2 Seld., 819. The definition given by Burrell is to a similar effect— that it includes the steps or measures taken in the course of an action, including all that are taken. Bouvier defines the word proceeding, thus: “ In its general acceptation, it means the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, the mode of de — 502 — ciding them, of opposing judgments and executing them.” He then goes on to speak of proceedings as ordinary, summary, and special; but it will be observed that he confines the term wholly to matters connected with, and growing out of judicial matters. There are other authorities going to the same point; blit these are perhaps sufficient. This word being, then, a technical term, as before stated, must be held and construed according to the peculiar and appropriate meaning which it has acquired in law. And this follows, not only from the decisions of the courts, and the authority of standard writers, but it is in accordance with the rule of construction adopted by the legislature of this state. See subdivision 2, §1, chap. 188, Comp. L. 1862, last clause, which reads as follows: “But technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.” We are therefore of the opinion that the first conclusion of law found by the coart was correct, and that the correctness of the second conclusion of law necessarily follows. The judgment of the district court is affirmed. All the justices concurring.