Page images

Vol. IV.)


(No. 5.

To hold otherwise would be to decide that the legislature, by omitting such a reservation, could confer a power beyond the interference of the legislature, and thus exercise a power forbidden by the Constitution. The charter of the appellee must therefore be construed as if such reservation bad been made in express terms by the Act of 1854. And if so, the case comes directly within the principle laid down in Washington County v. Franklin Railroad Company, 34 Ib. 160.

In accepting the Act of 1854, and in the execution of the articles of union, under the operation of which the Baltimore and Susquehanna Railroad Company has merged and ceased to exist, the stockholders are presumed to have known that the corporate powers and privileges granted by that act to the Northern Central Railway Company were subject to the provisions of section 47, article 3, of the Constitution, and that the exemption from taxation claimed under that act was liable at any time to be repealed by the legislature, whenever, in its judgment, the public interests required it. Be that however as it may, it was not within the power of the legislature, under the Constitution of the state, to grant to the appellee immunity from taxation, or any other corporate privilege, beyond the power of a subsequent legislature to repeal or revoke.

This being so, the question is, whether the exemption from taxation claimed under the Act of 1854 has been repealed, and this depends upon the construction of the acts of 1866, ch. 157, 1870, ch, 362, and 1872, ch. 234.

The Act of 1866, known as the general assessment law, provides in general terms for the taxation of all property in the state ; and repeals also all laws exempting property from taxation.

The Act of 1870, ch. 362, provides :

“ That all and every provision contained in the charter, or supplements thereto, of any railroad company incorporated by the laws of this state, or contained in any law heretofore passed by the legislature of this state, whereby the stock or property, real or personal, of any railroad company ::.. is exempted from taxation, be and the same is hereby repealed.”

The Act of 1872, ch. 234, provides :

“ That a state tax of one half of one per centum be and the same is hereby levied annually, upon the gross receipts of all railroad companies worked by steam."

And here we are met by the objection, that as there is no reservation in the charter of the appellee of the right to amend or repeal such charter, the power, if it existed, was derived solely from the provisions of the Constitution of 1850 ; and inasmuch as that instrument had been superseded by the constitutions of 1864 and 1867, subsequently adopted in this state, the power itself no longer existed.

The plain answer to this is, that the reservation under the Constitution of 1850 qualified and became part of the charter, as fully as if it had been incorporated in the act itself. It was the condition upon which the charter was granted, and thus became part of the contract between the state and corporators. If, then, the power to alter or repeal the charter of the appellee was reserved to the state, as fully as if such reservation had been set forth in express terms in the act of incorpora

[ocr errors]

Vol. IV.)


(No. 5.

tion, the right to exercise this power could not in any manner be affected by the adoption of the constitutions of 1864 and 1867.

We come, then, to the question as to the effect and operation of the acts of 1866 and 1870 and 1872.

It is unnecessary to review the many cases in which courts have considered how far, and under what circumstances, a subsequent general act will be held to operate as a repeal of a prior private act. As a general rule, it may be admitted that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous act, or unless there is a necessary inconsistency in the two acts. Where, however, the provisions of a general act are entirely inconsistent and irreconcilable with the provisions of a prior private act, the former must necessarily operate as a repeal of the latter, because it is impossible for the two acts to stand together. Great Central Gas Consumers' Co. v. Clarke, 103 E. C. L. 812, and 106 Ib. 837 ; Queen v. Champneys, 6 Com. Pleas, L. R. 393; Canal Company v. Railroad Company, 4 G. & J. 112; Mayor of Cumberland v. Magruder, 34 Md. 386.

, In such a case the intention of the legislature, that the latter act should repeal the former, appears by necessary implication. In re London f Eastern Banking Corporation, 4 Kay & J. 286; Thorpe v. Adams, 6 Com. Pleas, L. R. 123.

Now it must be conceded that the provisions of the several acts above referred to are repugnant to, and inconsistent with, the continuance of the exemption claimed by the appellee under the Act of 1854.

Not only does the Act of 1866 subject to taxation all property in the state, and repeal in general terms all exemptions heretofore granted, but the Act of 1870, ch. 362, provides that all and any provision contained in the charter, or supplements thereto, of any railroad company, whereby its stock or property is exempted from taxation, be and the same is hereby repealed; and by the 2d section, such stock and property is subjected to taxation for state, county, and municipal purposes, in the same manner as the stock and property of other corporations.

The intention of the legislature to subject all property in the state to taxation, and to repeal all exemptions granted to railroad companies, is thus expressed in language plain and unambiguous, and the effect and operation of these acts can admit of but one construction.

The provisions of these acts are repugnant to, and inconsistent with, the exemption from taxation granted to the appellee by the Act of 1854; and as these several acts cannot stand together, the former must be construed as a repeal of the particular act, under which the immunity now claimed by the appellee is derived.

But admitting the legislature had the power under section 47, article 3, of the Constitution, to repeal the exemption granted to the appellee; and that the acts referred to operated as a repeal of such exemption, it is contended, that the tax imposed by the Act of 1872, ch. 234, on the gross receipts of the company, is in conflict with Article 15 of the Bill of Rights, which declares,

“ That every person in the state, or person holding property therein, ought to contribute his proportion of public taxes for the support of the government, according to his actual worth in real or personal property."

Vol. IV.]


(No. 5.

In the case of The State v. The Cumberland f Pennsylvania Railroad Company, 40 Md. 22, it was held that the restriction imposed by this article of the Bill of Rights was intended to prevent an arbitrary taxation of property according to kind and quality, without regard to value, and that ander it all taxation laid on property must be uniform and equal. Giving full force to the construction thus placed upon the Bill of Rights, it is sufficient to say there is nothing in the record before us to show that the tax imposed by the Act of 1872 is unequal or unjust, or that it subjects in any manner the property of the appellee to taxation, not equally borne by other property in the state.

Being of opinion that the tax imposed by the Act of 1872 upon the gross receipts of the company is a valid tax, it is unnecessary to decide whether the exemption of the shares of stock exempted also every species of property belonging to the appellee. In regard to this question we are not to be understood as expressing any opinion.

The court erred, therefore, in granting the first and second prayers of the appellee, and in refusing the first and second prayers of the appellant. The several propositions presented by the other prayers of the appellant it becomes unnecessary for us to consider.

Judgment reversed, and new trial awarded.


(To appear in 66 Me.)



A loan of money made on the Lord's day is void.
Whether the promise to repay be in writing, verbal, or implied, it cannot be enforced.

ASSUMPSIT on account annexed, originally tried before a trial justice and defended by an account in set-off, and plea of non-assumpsit. The trial justice gave judgment for the plaintiff for $9 and costs; and the defendant appealed.

By agreement of the parties the case is submitted to the law court on the statement that the matter of one item only shall be presented to the law court; that on one Sunday in April, 1872, at four o'clock in the afternoon, the defendant went to the house of his brother-in-law, the plaintiff, in Dexter, four miles from his own house, and said to the plaintiff that he wanted to borrow of him the sum of $9, and promised to repay it the next fall. Thereupon the plaintiff let the defendant have the sum of $9.

If the action is maintainable for the nine dollars the defendant is to be defaulted for that sum and interest from the date of the writ and for costs; otherwise the plaintiff is to be nonsuit and the defendant to have costs.

Vol. IV.)


(No. 5.

V. A. Sprague f M. Sprague, for the plaintiff, contended in substance that one who loans money without interest on Sunday to relieve want, necessity, distress, violates no moral law, nor the statute which forbids travelling or doing “ any work labor, or business on that day except works of necessity or charity ;” that either the defendant represented truly that he was in want, or untruly: if truly, neither was violating the law; if untruly, he should not take advantage of his own wrong, not participated in by the plaintiff.

In the course of the argument under various views, the counsel cited and commented upon the following cases : Cratty v. Bangor, 57 Maine, 423; Bailey v. Blanchard, 62 Maine, 168; Garrick v. Wason, 4 Ohio St. R. _566; Whitcomb v. Gilmore, 35 Vt. 297; State v. Goff: 20 Ark. 289; Jones v. Anderson, 10 Allen, 18; Commonwealth_v. Sampson, 97 Mass. 407; McGrath v. Merwin, 112 Mass. 467; Phil. R. R. Co. v. Phil. Towboat Co. 23 Howard U. S. 209; McClary v. Lowell, 44 Vt. 116; Hearne v. Nichols, 1 Salk. 289; Flagg v. Millbury, 4 Cush. 243; Adams v. Gray, 19 Vt. 358.

The counsel closed with an appeal to the court, that if the points noticed were of no avail, that the wisdom of the court would discover a remedy which would combine law and justice, and give to the plaintiff the money which the defendant was so unjustly endeavoring to withhold.

J. Crosby, for the defendant. The contract being made on Sunday is illegal. It has no element of religion, necessity or charity.

Melior est conditio defendentis. Plaisted v. Palmer, 63 Maine, 576, and cases there cited.

APPLETON, C. J. The defendant borrowed of the plaintiff nine dollars on the Lord's day. Had he given his note for this sum, its collection

. could not have been enforced because of the statute forbidding secular business on that day. Whether the promise to repay is evidenced by a written memorandum, or by a verbal promise, or rests upon an implied one, the same result must follow. The contract was illegal because made on a day when the making of contracts is forbidden, and the plaintiff cannot claim through an act prohibited by the statute. Finn v. Donahue, 35 Conn. 216; Plaisted v. Palmer, 63 Maine, 576.

The moral obligation to repay money loaned is the same, whether the loan be made on one day or on another. It is an unfortunate condition of the law when the violator of its commands is rewarded by it for such violation. The defendant and the plaintiff are alike guilty of a violation

. of law: the former in soliciting a loan, the latter in yielding to such solicitation. Both are liable to the penalty provided by the statute. But the defendant, while guilty with the plaintiff and equally amenable to the penalties provided by the statute, is rewarded for his wrong doing by the refusal of the law to aid in the enforcement of a debt justly due. He is absolved from an indebtedness created at his own instance; while his associate in guilt, who yielded to his wishes, is liable to a double penalty, that inflicted by the law, and that arising from the nonpayment of money loaned in addition to the sorrows of a regretful conscience.

Juvenal indignantly says: “ Multi committunt eadem, diverso crimina fato. Ille crucem pretium sceleris tulit, hic diadema." So, now, of two

Vol. IV.)

Wing v. Wing.

(No. 5.

criminals guilty of the same offence, one is punished and the other rewarded by the law, which creates the offence. Plaintiff nonsuit.

WALTON, J., concurred in the result.

[blocks in formation]

The words, “ A. B. stole windows from C. D.'s house," are not of themselves, in their

ordinary and popular sense, actionable, as imputing either a charge of larceny or an act of malicious mischief upon real estate.

CASE FOR SLANDER. The declaration alleges in the usual form that the defendant uttered and published the following false, scandalous, and malicious words of and concerning the plaintiff, to wit, that “ Almon Wing stole windows from Benjamin Jordan's house,” by means of which false and scandalous words the plaintiff has been exposed to a prosecution for stealing, and has suffered great anxiety of mind. The defendant demurred generally to the declaration. The presiding justice, the demurrer being joined, sustained it; and the demurrer being sustained the plaintiff excepted.

1. W. Davis, for the plaintiff.
L. Barker f. L. A. Barker, for the defendant.

PETERS, J. The words alleged to be actionable are: “ Almon Wing stole windows from Benjamin Jordan's house.” There being no special averments, it is to be presumed that the words were used in their ordinary and popular sense. The plaintiff impliedly so avers, there being no express averment to the contrary. That is one rule of construction. Another rule is, that all the words spoken, so far as necessary to ascertain the meaning of the person who utters them, must be considered together. The sense of actionable words may be so far qualified by subsequent words spoken in the same connection that the words taken together are not actionable. Therefore, if a person is charged with stealing, under such circumstances as show that a felony was not capable of being committed, the words are not to be regarded as actionable. Among the illustrations of this rule is the familiar one found in the books, and stated in Bac. Abr. (Title Slander), in this way: “ If J. S. say to J. N., • Thou art a thief, and hast stolen my trees,' no action lies; it appearing from the latter words, that the whole words only import a charge of a trespass.” Allen v. Hillman, 12 Pick. 101 ; Dunnell v. Fiske, 11 Met. 551; Edgerly v. Swain, 32 N. H. 478. See, also, numerous cases cited in note to the case of Booker v. Coffin, 1 Amer. Lead. Cases, 76.

Tested by these rules, our opinion is, that the words uttered by the defendant do not impute the crime of larceny, but amount to an accusation of only a trespass upon real estate.

Demurrer sustained.


« PreviousContinue »