Account of Hendrix

Opinion, Me. Justice Steeeett : The question of jurisdiction, mainly, but unsuccessfully relied on by appellant, in the court below, is presented to us in the first and third specifications of error. It is conceded that under the act of 1856 the Court of Quarter Sessions had jurisdiction of such accounts. The third section of that act requires the superintendent of the Cumberland or National Road to make a full and just exhibit of his receipts and expenditures to the court, at the end of each year, and provides that, before said accounts are certified, they “ shall receive the consideration and examination of the court, and for this purpose the court may appoint an auditor, if necessary.” But it is contended that this requirement was repealed by the act of April 4, 1877, entitled “ An Act to authorize the governor to appoint a commissioner to take charge of that part of [289] the National Road lying between the Monongahela river westward, and the line on the state pf West Virginia.” By that act the governor is authorized to appoint a commissioner who shall serve for three years from the expiration of the then acting commissioner’s term, “ and be subject to the laws now in force for the control and management of said road,” etc. It further provides that said commissioner “ shall be required to present an account annually, verified by'oath or affirmation, to the auditors of Washington county, who shall examine and audit the same, and publish the result in at least one newspaper in said county, the cost of which publication to be paid by said commissioner out of any moneys collected as tolls.” The act contains no repealing clause; but, in so far as it takes from the Court of Quarter Sessions the power of appointing the commissioner, and vests the same exclusively in the governor, it does, by necessary implication, repeal that provision of the act of 1856. The legislature never could have intended that the power of appointment should be vested in the governor, and at the same time be exercised by the Court of Quarter Sessions under the first section of the act of 1856. It necessarily follows that, so far as authority to appoint the commissioner is concerned, the act of 1856 is supplied by the act 1877. These provisions are entirely inconsistent, and incapable of being so construed that both may stand together. This principle of construction is recognized in many cases, among which are Sifred v. Commonwealth, 104 Pa. 179; Homer v. Commonwealth, 106 Pa. 221, and cases there cited. As was said by Chief Justice Mercur, in the first of these cases, the leaning of courts is strongly against repealing the positive provisions of a former statute by construction. The more natural, if not necessary inference, in all such cases, is that the legislature intended the new law to be auxiliary to and in aid of the purposes of the old law. There should therefore be such a manifest and total repugnancy in the provisions of the new law, as to lead to the conclusion that the latter abrogated, and was designed to abrogate the former. Tested by this principle, there appears to be no such repugnancy between the requirement of the act. of 1856, to make a full and just exhibit of receipts and expenditures to the court, for its consideration and adjudication, and the provision of the [290] act of 1877, requiring the commissioner to present his account to the auditors, for examination and publication of the result. These provisions may well stand together. They are not inconsistent; certainly, not any more so than the requirement relating to trustees, executors, etc., whose accounts must be first exhibited to and passed upon by the register, and after-wards submitted to the proper court for final adjudication. The legislature doubtless thought a preliminary examination of the commissioner’s account by the auditors, and publication of the result, would invite public attention, and aid the court in the discharge of its duty under the former act. But, whether that be so or not, there is no such inconsistency in the two provisions as would warrant the conclusion that the latter was intended to supply the former. The question of jurisdiction has been so fully and satisfactorily considered by the learned auditor and court below that further comment is unnecessary. The surcharge complained of in the third specification is based on facts found by the auditor and approved by the court. The evidence appears to have warranted the findings of fact, and we discover no error in the conclusions drawn therefrom. There was therefore no error in confirming the auditor’s report. Decree affirmed, and appeal dismissed at appellant’s costs.