Rochester v. Barnes.

embrace all debts and dues, of every description, contracted by the company. As a general rule, I think, when the legislature pass a particular act, and declare under what circumstances, and in what manner, and to what extent individuals shall be liable under that act, the intendment is, that they are liable under those provisions only, and do not fall within the provisions of former general acts. So subsequent general acts, although their language is sufficiently broad and comprehensive for such purpose, will not control the provisions of prior special statutes, unless the legislature so intended. (Williams v. Pritchard, 4 D. & E. 2. Dwarris, 514.) The individual liability of stockholders, imposed by these acts, is not made applicable, at all, to corporations then existing. Section 49 of the act of 1850 makes several sections of the act applicable to all existing rail road corporations, but does not make sections 10 and 12, which relate to the subject of individual liability, so applicable; showing, as it seems to me, still more conclusively, the intention to make the individual liability provided for, apply exclusively to the new system, and to be the only rule of liability. Had these sections been made applicable to all rail road corporations then existing, I should have regarded the intent to repeal the act of 1845 entirely, as perfectly clear; especially when considered in connection with the constitutional provision before referred to.

Again; the grants of power in the acts of 1848 and 1850, are entirely inconsistent with, and repugnant to, the act of 1845. In addition to the general powers conferred upon corporations by title 3, chapter 18 of the first part of the revised statutes, the express power is conferred upon all corporations formed under these acts, to borrow money from time to time as may be necessary, for the purpose of constructing the road and operating it afterwards, without any of the restrictions, or any of the pains and penalties, prescribed in the act of 1845. (Act of 1848, § 19, sub. 10. Act of 1850, § 28, sub. 10.) Here is a general power granted to these corporations to contract debts by borrowing money upon their obligations respectively,

Rochester v. Barnes.

for the purpose of completing their tracks and fixtures, and purchasing all the stock and materials necessary for their equipment and operation. This necessarily includes the power to turn out their obligations directly to contractors who construct the roads, and to the manufacturers of engines and cars, who are willing to receive them in payment. To hold the contrary would be mere trifling with the enactments of the legislature. It would be absurd to suppose the legislature intended to compel such corporations to go through the process of borrowing money, and paying that only, in the construction. of their roads and the purchase of their stock, if they could use their obligations directly for the same purpose, and to the same advantage. Such a distinction would be one of form merely, without sense or substance. It is true that the total or partial repeal of statutes, by implication, is not favored by courts. But it is also true that the doctrine of repeal by implication is as well settled and as firmly established as any known to the law. Mr. Sedgwick, in his recent valuable treatise on statute and constitutional law, states the rule very clearly as follows: "A subsequent statute which is clearly repugnant to a prior one, necessarily repeals the former, although it do not do so in terms; and even if the subsequent statute be not repugnant in all its provisions to a prior one; yet if the later statute was clearly intended to prescribe the only rule which should govern, in the case provided for, it repeals the original act." (Sedg. on Stat. and Const. Law, 124.) This rule is founded in good sense, and is not without the sanction of authority. (Davis v. Fairbairn, 3 How. 636. Dexter and Limerick Plank Road Co. v. Allen, 16 Barb. 15.) In Pierce v. Delamater, (1 Comst. 17,) it was held by the court of appeals that the abrogation of the constitution of 1821, and the adoption of the present constitution, repealed the statute which forbade the judge of any appellate court taking part in the decision of any cause which had been determined by him while sitting as a judge of any other court. (2 R. S. 275, § 3.) It has also been held, that a statute is impliedly repealed, by

Rochester v. Barnes.

a subsequent statute revising the whole subject matter of the first. (Bartlett v. King, 12 Mass. Rep. 537.) Nichols v. Squire, 5 Pick. 168.) The same rule also prevails where a statute revises the common law.

Applying these general principles to the case before us, I can entertain no doubt that the act of 1845 under which this action has been brought, was never operative against the corporation of which these defendants were stockholders, and officers, and imposed no obligations upon them, personally, to the plaintiffs or their assignors. The fact that the act of 1845 was expressly repealed by the legislature, in 1854, after the debt in question was contracted, furnishes, in my judgment, no argument in favor of the plaintiff's claim, and no evidence that such act was regarded by the legislature, even as being in force against corporations, and stockholders of corporations, under the general law. It may have been in force for some purposes as against prior corporations, and it may have been repealed expressly, for more abundant caution. Had the act of 1845 been in force against this corporation when the indebtedness in question was contracted, it is quite clear that its subsequent repeal would have formed no bar to the plaintiff's right of action. In that case the law would have imposed the obligation to pay upon the defendants, the moment the debt was contracted. It would have become their contract, and their obligation, immediately, by force of the statute. It would have been in no sense an inchoate obligation, but a complete and perfect one, to all intents and purposes, and the repeal of the statute afterwards could not have impaired it. But as the act was of no force against the defendants, no cause of action is established against them. The judgment must therefore be reversed and a new trial granted, with costs to abide the event.

[MONROE GENERAL TERM, March 1, 1858. Welles, Johnson and Smith, Justices.]

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