city charter does not affect existing ordinances in harmony with new provisions.1 § 234 (86). Repeating Clause; Substitutionary Charter; Repeals by Implication. A repeating clause in a revised and amendatory charter whereby a former provision is included in the revised act, does not, as to such provision, interrupt the continuity of the original act. Where the original charter of a city prescribed the qualifications required to make a person eligible to the office of mayor, and contained a proviso that a certain fact disqualified, and an amendatory act, in dealing in the same subject, copied all of the original act except the proviso, which was omitted, the court held that the proviso in the original act was not repealed, placing stress, however, upon the express declaration that all parts of the new act inconsistent with or contrary to the old one were repealed. There is, however, much room to contend that the subject matter having been revised in the amendatory act in the manner it was, the legislative intention was to repeal, and not to continue in force, the proviso.3 A general law forbidding the opening of streets through cemeteries is not repealed by a subsequent act extending the limits of a town, and appointing commissioners with authority "to survey, lay out, &c. streets and alleys, as they shall deem necessary within said limits," since both acts can stand, and repeals by implication are not favored. So a general statute, expressly prohibiting a municipal corporation from debarring citizens from selling at wholesale in the city market, is not repealed by implication by a subsequent act, by which the city authorities are invested with power to pass such ordiandria, 3 Pet. 398, 408; Municipality pose appears. It is entirely a question v. Commissioners, 1 Rob. (La.) 279. of legislative intention. Murdock v. Transition from town to city organiza- Memphis, 20 Wall. (U. S.) 590, 617, and tion does not dissolve the corporation or extinguish its indebtedness. Olney v. Harvey, 50 Ill. 453; Maysville v. Shultz, 3 Dana, 10; Frank v. Šan Francisco, 21 Cal. 668; post, chap. ix. §§ 337, 338. Chamberlain v. Evansville, 77 Ind. 542; Erie Academy v. Erie, 31 Pa. St. 515; Allen v. Davenport, 107 Iowa, 90; quoting and approving text. 2 St. Louis v. Alexander, 23 Mo. 483. 3 State v. Merry, 3 Mo. 278. Consult Goodenow v. Buttrick, 7 Mass. 140, 143; King v. Grant, 1 Barn. & Adol. 104. Where a later statute undertakes to revise the entire subject matter of a prior statute, it will generally be taken as intended to be a substitute for the former statute unless a contrary pur cases cited; Sedgwick on Stats. 126; Mechanics' & T. Bank v. Bridges, 30 N. J. L. 112; Industrial School v. Whitehead, 13 N. J. Eq. 290; State v. Kelly, 34 N. J. L. 75. The rule is otherwise when there is nothing to indicate an intention to revise the former act or to deal exhaustively with the subject. Horn v. State, 114 Ga. 509. In Oak Cliff v. State, 97 Tex. 383, it was held that the constitutional provision that no law should be revived or amended by reference to its title was not violated by a statute which added an entire section to the charter of the city adding certain territory. 4 Egypt Street, 2 Grant (Pa.) Cas. 455. See further, infra, § 235, as to repeals by implication. nances as appear to them necessary for the security, welfare, &c. of the city.1 So, also, where a State statute required auctioneers to take out a State license, and a subsequent charter to a city gave it power "to provide for licensing, taxing, and regulating auctions," &c., it was held that a license granted by the city corporation to an auctioneer did not relieve him of the necessity of obtaining, also, a license from the State authorities, the court being of opinion that both statutes could and ought to stand, as they were not inconsistent.2 235 (87). General Laws and Special Charters; Repeals by Implication; Conflict; Construction. - It is a sound and reasonable principle of very extensive operation that affirmative statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities; but they do so Haywood v. Savannah, 12 Ga. 404. Simpson v. Savage, 1 Mo. 359; infra, § 235. Text approved; Siebenhauer, In re, 14 Nev. 365. 3 Bond v. Hiestand, 20 La. An. 139; Orange & A. R. Co. v. Alexandria, 17 Gratt. (Va.) 176; Hammond v. Haines, 25 Md. 541; Louisville v. McKean, 18 B. Mon. (Ky.) 9; Cumberland v. Magruder, 34 Md. 381; Com'rs Central Park, In re, 50 N. Y. 493; Griffin v. Inman, 57 Ga. 370; post, § 322; State v. Wilson, 12 Lea (Tenn.), 246; Wood v. Board of Election, 58 Cal. 561; East St. Louis v. Maxwell, 99 Ill. 439; Faust v. Huntsville, 83 Ala. 279, citing text. A provision in a new State Constitution held to remove a limitation in a municipal charter upon the power of taxation for the payment of bonded indebtedness. East St. Louis v. Amy, 120 U. S. 600. In Donahue v. Graham, 61 Cal. 276, a "street law" contained in a city charter which was inconsistent with the provisions of a new Constitution, was held to be repealed by it. Repeals by implication are not favored; and special laws conferring particular rights upon municipal corporations were held not to be repealed by subsequent statutes general in their character. Ottawa v. County, 12 Ill. 339; Egypt Street, 2 Grant (Pa.) Cas. 455; Harrisburgh v. Sheck, 104 Pa. St. 53; supra, § 234. A general statute, repealing all acts contrary to its provisions, held not to repeal a clause in the charter of a municipal corporation upon the same subject. State v. Branin (taxation), 23 N. J. L. 484, 485. The "Voorhees Act" did not impair the charters of towns 3 previously incorporated by special charter. Butler v. Montclair, 67 N. J. L. 426. But a general railroad tax law held to repeal by implication prior special charter powers of municipalities. "It is really a question of intention," says Wagner, J., and the intention was regarded as manifest from the scope and purpose of the whole act, although negative words, or words of repeal, were not used. State v. Severance, 55 Mo. 378; Union Pacific Ry. Co. v. Cheyenne, 113 U. S. 516; post, § 1404. It is settled law in Tennessee that there is no check upon the power of the legislature to create a municipal corporation by a special act. State v. Wilson, 12 Lea (Tenn.), 246; Muse v. Lexington, 110 Tenn. 655. An act which repeals laws under which charters were obtained does not repeal the charters themselves. State v. Huff, 105 Mo. App. 354. The principle that general legislation on a particular subject must, in the absence of anything showing a different intent on the part of the legislature, give way to inconsistent special legislation on the same subject, is recognized and applied in the following cases. State v. Morristown, 33 N. J. L. 57; Cross v. Morristown, 18 N. J. Eq. 305; State v. Trenton, 36 N. J. L. 198, 201; State v. Branin, 23 N. J. L. 484, 485; State v. Clarke, 25 N. J. L. 54; State v. Jersey City, 29 N. J. L. 170; Jersey City v. Railroad Co., 20 N. J. Eq. 360; Goddard, In re, 16 Pick. (Mass.) 504; Railroad Co. v. Alexandria, supra. In Mechanics' & T. Bank v. Bridges, 30 N. J. L. 112, and State v. Miller, Ib. 360, 368, special laws gave way to general when this clearly appears to have been the purpose of the legislature. If both the general and the special acts can stand, they will be construed accordingly. If one must give way, it will depend upon the supposed intention of the law-maker, to be collected from the entire legislation, whether the charter is superseded by the general statute, or whether the special charter provisions apply to the municipality, in exclusion of the general enactments. So particular provisions of charters should be read and construed in the light of the whole instrument, of all preceding charters, of the general legislation of the State, and of the object of the legislature in the erection of municipalities, as before explained.1 § 236 (88). Implied Repeal of General Laws. The presumption is not lightly to be indulged that the legislature has by implication laws, because the legislature had annexed to the latter a repealing clause abrogating all inconsistent local or special acts. Per Depue, J., 33 N. J. L. 57. See Stonington Sav. Bank v. Davis, 14 N. J. Eq. 286; Clintonville v. Keating, 4 Denio, 341; Tierney v. Dodge, 9 Minn. 166. Other illustrations will be found in the chapters on Ordinances and Taxation, post; ante, § 234. Moran v. Long Island City, 101 N. Y. 439. Where a city charter adopted the general revenue act as to the mode of assessing and collecting municipal taxes, the subsequent repeal of the revenue act and the passage of a general law concerning the creation and government of municipalities, which contained provisions for assessing and collecting Alexander v. Alexandria, (taxing their taxes, was held not to alter the power), 5 Cranch (U. S.), 2; Grant on powers and practice of the city under Corp. 27; Canal Company v. Railroad its charter. People v. Clunie, 70 Cal. Company, 4 Gill & Johns. (Md.) 1; Smith 504. When general revenue laws are apv. Kernochen, 7 How. (U.S.) 198; Janes- plicable to incorporated places, see post, ville v. Markoe, 18 Wis. 350; Powell v. §§ 1404-1406. Provisions in a city Parkersburg, 28 W. Va. 698; Thoma- charter inconsistent with amendments to son v. Ashworth, 73 Cal. 73; Babcock the Constitution of the State afterwards v. Helena, 34 Ark. 499; Eichels v. adopted are void. Public School TrusEvansville Street Ry. Co., 78 Ind. 261; tees v. Taylor, 30 N. J. Eq. 618. Where Chicago Dock Co. v. Garrity, 115 Ill. the amendment of a provision of a city 155. Where there was a charter provi- charter covers the entire ground, and is in sion in reference to bribery committed by direct conflict with the provision, the a municipal officer, and the same crime provision is repealed. Chamberlain v. was made punishable by a greater pen- Saginaw, 135 Mich. 61. In Missouri, alty in a code subsequently adopted by under its Constitution as to Freeholders' the legislature, it was held that, as to Charters, charter provisions which are crimes committed after the code was in conflict with a general statute appliadopted, the charter provision was re- cable to all cities having a certain popupealed. People v. Jaehne, 103 N. Y. lation are inoperative, for the provi182; People v. O'Neil, 109 N. Y. 251; sions of a charter must be in harmony, ante, §§ 15, 34, 41. Acts in pari materia not only with the Constitution of the should be construed together; and on this State, but with its general laws as well. principle, the definition of the word Kansas City v. Oil Co., 140 Mo. 458, "owner," in a subsequent paving act, 469; Kansas City v. Bacon, 147 Mo. was considered as proper to be adverted 259; Ex parte Loving, 178 Mo. 194. to, and as applicable to the same word As to Freeholders' Charters, see ante, in prior acts on the same subject. Hol- $ 63. As to the repeal of special charter land v. Baltimore, 11 Md. 186; New provisions by general legislation apBedford & F. Street Ry. Co. v. Acush- plicable to a class of cities, see ante, net Street Ry. Co., 143 Mass. 200; § 167. repealed, as respects a particular municipality, or as respects all municipalities, laws of a general nature, elsewhere in force throughout the State; yet a charter or special act passed subsequent to the general law, and plainly irreconcilable with it, will to the extent of the conflict operate a repeal of the latter by implication. But by a wellknown rule, founded on solid reasons, such repeals are not favored; and the principle of implied repeals ought to be applied with extreme caution.' § 237 (89). Extent of Power; Limitations; Canons of Construction. It is a general and undisputed proposition of law that 1 See cases cited to last preceding section; also St. Louis v. Alexander, 23 Mo. 483; Baldwin v. Green, 10 Mo. 410; State v. Binder, 38 Mo. 450, 451; State v. Young (intoxicating liquors), 17 Kan. 414 (where the Kansas cases on the subject are discussed by Horton, C. J.); State v. Clarke, 25 N. J. L. 54; State v. Douglass, 33 N. J. L. 363; State v. Mills, 34 N. J. L. 177, 180; Montezuma v. Minor, 70 Ga. 191; St. Johnsbury v. Thompson, 59 Vt. 300. The case of State v. Clarke, 54 Mo. 17, and of State v. De Bar, 58 Mo. 395, relating to the social evil powers of the city of St. Louis, are highly instructive on the question on the effect of a special act upon the general law. In each case the defendant was indicted under the general criminal code of the State, which prohibited the keeping of bawdy houses. In the first case the defendant pleaded a license from the city to keep such a house. In 1870 the charter of the city was amended, and the previous power to "suppress" such houses was changed to the power "to pass ordinances, not inconsistent with any law of the State, to regulate or suppress" such houses. Under this power to regulate, the city regulated such houses by passing an order licensing them; and such an ordinance was held to be valid not withstanding the general law, and to have the effect to prevent the enforcement of the general criminal law of the State within the city of St. Louis. The question was a close one, but the majority opinion of Napton, J., in view of the legislation recited in it, seems to be sound. State v. Clark, 54 Mo. 17. The next year, 1874, in consequence of the decision, the charter of the city was amended in this respect, by substituting the words "to suppress, but not to license, bawdy houses." After this act went into effect, State v. De Bar, supra, arose. The defendant was indicted under the general law of the State for keeping such a house. There was another provision in the general law, that the repeal of a law shall not by implication revive a former law. And it was held by a majority of the court that the amendment of 1874, which repealed the former amendment of 1870, did not thereby revive the general criminal statute in the city of St. Louis, and, as a consequence, that the defendant could not be convicted. This last decision seems to the author to be erroneous, on the ground that the Act of 1870 did not ipso facto repeal the general law in the city, but such repeal, or suspension rather, was only effected when the city passed the ordinance. If so, a repeal of the ordinance by the council, without the Act of 1874, would have left the general law of the State in force within the city, and its repeal by the Act of 1874 would have precisely the same effect. These cases may be usefully consulted on the nature and scope of the power to "regulate." See also Givens v. Van Studdiford, 86 Mo. 149. General power in a municipal charter held not to repeal by implication the chartered rights of a railroad company. State v. Jersey City, 29 N. J. L. 176. Ör to interfere with vested rights. State v. Jersey City, 34 N. J. L. 32, 33. A charter which confers exclusive ' jurisdiction upon municipal authorities operates to repeal the general law on the same subject within the municipality; not so ordinarily when the charter confers concurrent authority. Seibold v. People, 86 Ill. 33. As to repeal of special provisions by general laws, and vice versa, see ante, § 167. a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable.' Any fair, reasonable, substantial Smith v. Newbern, 70 N. Car. 14. Referring to the text, McAllister, J., in People v. Howard, not officially reported, says: "It is the best summary of all the decisions upon that point to be found in all the books." Text cited and approved in the following cases: Cook Co. v. McCrea, 93 Ill. 236; Ottawa v. Carey, 108 U. S. 110; Kelly v. Town of Milan, 21 Fed. Rep. 842; Scott v. Shreveport, 20 Fed. Rep. 714; Desmond v. City of Jefferson, 19 Fed. Rep. 483; In re Lee Tong, 18 Fed. Rep. 253; Eufaula v. McNab, 67 Ala. 588; Henke v. McCord, 55 Iowa, 378; Ravenna v. Pennsylvania Co., 45 Ohio St. 118; Corvalis v. Carlile, 10 Oreg. 139; Danville v. Shelton, 76 Va. 325; Bell v. Platteville, 71 Wis. 139; Gilman v. Milwaukee, 61 Wis. 588; Blake v. Walker, 23 S. Car. 517; Charleston v. Reed, 27 W. Va. 681; Kansas v. Swope, 79 Mo. 446; Portland v. Schmidt, 13 Oreg. 17; Levy v. Salt Lake City, 3 Utah, 63; Richmond v. McGirr, 78 Ind. 192, 197. The doctrine stated in the text is also followed, approved, applied, and illustrated in the following cases: Barnett v. Denison, 145 U. S. 135; Detroit Citizens St. Ry. Co. v. Detroit Ry., 171 U. S. 48; s. c. 22 U. S. App. 570, 590; Grand Rapids El., &c. Co. v. Grand Rapids, &c. Co., 33 Fed. Rep. 659; Detroit v. Detroit City Ry. Co., 56 Fed. Rep. 867; Andrews v. Nat. Foundry & Pipe Works, 61 Fed. Rep. 782; Los Angeles City Water Co. v. Los Angeles, 88 Fed. Rep. 720; Fort Scott v. Eads Brokerage Co., 117 Fed. Rep. 51; New Decatur v. Berry, 90 Ala. 432; Gambill v. Erdrich, 143 Ala. 506; Cleveland School Furn. Co. v. Greenville, 146 Ala. 559; San Pedro v. Southern Pac. Ry. Co., 101 Cal. 333; Durango v. Reinsberg, 16 Colo. 327; Hayward v. Red Cliff Trustees, 20 Colo. 33; Bridgeport v. Housatonic R. Co., 15 Conn. 475; Crofut v. Danbury, 65 Conn. 294; Jacksonville Electric L. Co. v. Jacksonville, 36 Fla. 229; Porter v. Vinzant, 49 Fla. 213; Keen v. Waycross, 101 Ga. 588; Smith v. McDowell, 148 Ill. 51, 62; Chicago v. Norton Milling Co., 196 Ill. 580, aff'g 97 Ill. App. 651; Ladd v. Jones, 61 Ill. App. 584; Pittsburgh, &c. R. Co. v. Crown Point, 146 Ind. 421; Walker v. Towle, 156 Ind. 639; McAllen v. Hamblin, 129 Iowa, 329; Anderson v. Wellington, 40 Kan. 173, 176; In re Pryor, 55 Kan. 724; Henderson v. Covington, 14 Bush (Ky.), 312; Nelson v. Homer, 48 La. An. 258; Mayo v. Dover & Foxcroft Village Fire Co., 96 Me. 539; Foster v. Worcester, 164 Mass. 419; Taylor v. Bay City St. R. Co., 80 Mich. 77; People v. Holly, 119 Mich. 637; Leach v. Cargill, 60 Mo. 316; State v. Butler, 178 Mo. 272, approving text; Joplin v. Leckie, 78 Mo. App. 8; Kirkwood v. Meramec Highlands Co., 94 Mo. App. 637; Christensen v. Fremont, 45 Neb. 160; State v. Webber, 107 N. Car. 962; State v. Eason, 114 N. Car. 787, citing text; Love v. Raleigh, 116 N. Car. 296; State v. Higgs, 126 N. Car. 1014; Ravenna v. Pennsylvania Co., 45 Ohio St. 118; Markley v. Mineral City, 58 Ohio St. 430; McIntosh v. Charleston, 45 S. Car. 584; Ysleta v. Babbitt, 8 Tex. Civ. App. 432; Ogden City v. Bear Lake, &c. Irrig. Co., 16 Utah, 440; Winchester v. Redmond, 93 Va. 711; Lynchburg & R. St. R. Co. v. Dameron, 95 Va. 545; Duncan v. Lynchburg (Va.), 34 S. E. Rep. 964; Donable v. Harrisonburg, 104 Va. 533; Tacoma Gas & Elec. Light Co. v. Tacoma, 14 Wash. 288; Farwell v. Seattle, 43 Wash. 141; Trester v. Sheboygan, 87 Wis. 496; Schneider v. Menasha, 118 Wis. 298; Lewis v. Alexander, 24 Canada S. C. R. 551. Implied power to appropriate money out of city treasury to assist in the maintenance of national guard denied. Knapp v. Kansas City, 48 Mo. App. 485. But the general welfare clause in charter was held to authorize pensions to members of the police force. Commonwealth v. Walton, 182 Pa. 373. Where an act authorized existing corporations by vote of their members to alter, change, and amend the charters, but did not confer upon the corporation |