SUPREME COURT OF COLORADO. SCHWENKE ET AL. v. UNION DEPOT AND RAILROAD COMPANY. Filed October 17, 1884. SPECIAL STATUTE REFERRING TO EXISTING LAW-EFFECT OF ON APPEAL ON PRIOR STATUTE. – A local and special statute which adopts, by reference, provisions relating to procedure in an existing general law, is not necessarily abrogated or affected by the subsequent repeal of the act containing the provisions adopted. REPEAL OF STATUTE BY IMPLICATION LEGISLATIVE INTENT. The law does not favor the repeals of existing statutes by implication; they will not be adjudged to follow unless there is such a positive repugnancy that the two statutes cannot consistently stand together; the legislative intent to substitute the new for the old law must clearly appear, this intent is never prima facie presumed. And a stronger repugnancy or clearer indication of legislative intent is necessary where the repeal of a prior special act is claimed to result from the subsequent passage of a general law. PATENT ISSUED UNDER REPEALED ACT IS VOID.-A patent to land showing on its face that it was issued under and in pursuance of an act of congress, which had been repealed prior to the application therefor, is void, and may be collaterally attacked. DENVER TOWN SITE ACT NOT REPEALED.--The act of May, 1864, regarding the town site of Denver, was a local and special statute, and was not repealed by the repealing clause of the general town site act of July, 1864. Nor is there anything repugnant or inconsistent in the provisions of such acts. APPEAL from the district court of Arapahoe county. The opinion states the facts. W. A. Hardenbrook and W. B. Felker, for the appellants. HELM, J. The assignment of errors in this case contains thirty different specifications. The important ones, however, may be condensed into two general questions or propositions as follows: First. Was appellee, The Union Depot & Railroad Company, at the commencement of this suit, a corporation duly organized and existing under the laws of Colorado? Second. Is the patent through which appellee claims, conveying title of the original Denver town site from the United States to Hall, probate judge, in trust, absolutely void ? As shown by the record, appellant deemed it advisable to bring a separate action in the nature of quo warranto, directly challenging the corporate existence of the Depot Company. That suit was vigorously prosecuted and resulted in a decision at the last term of this court affirming the validity of the corporation: People ex rel. Bernard v. Cheeseman, et al., 2 West Coast Rep., 870. This decision fully answers and disposes of the first question. above stated. Hence we proceed at once to a consideration of the second. The validity of the patent in question is assailed on the ground that it was issued entirely without warrant or authority of law. The instrument itself contains the declaration that it is issued in pursuance of two certain acts of congress passed in May, 1844, and in May, 1864, respectively. The former was a general town site law, the latter was a local and special act. In July, 1864, and ten months previous to the patent entry by Hall, congress enacted another general town site law; this last statute contained the following repealing clauses: No. 46.-2. "The act entitled 'an act for the relief of the citizens of towns upon the lands of the United States under certain circumstances,' May 23d, 1844, and all other acts and parts of acts inconsistent with this act be, and the same are hereby repealed:" V. 13, ch. 205, p. 313, U. S Statutes at Large. Appellants' contention is that this repealing provision swept away both of the previous acts above mentioned, and that for this reason the patent is void, and conveyed no legal title whatever to the trustee therein named. We will not question appellants' right to test the validity of this patent collaterally upon the foregoing ground. We shall assume without argument that if a patent on its face shows that it is issued under and in pursuance of certain acts of congress, and it is true that such act were repealed prior to the application therefor, the patent is void. There is, then, such an absolute want of power" as is mentioned in Sherman v. Buick, 93 U. S., 209, and cases cited, which renders the instrument liable to impeachment in a court of law: See Patterson v. Winn, 11 Wheaton, 380, and cases cited; Parker v. Duff, 47 Cal., 554, and cases cited. It must be conceded at the outset, of course, that the law of 1844, was repealed by that of July, 1864, for it is expressly in direct terms so declared. The discussion will therefore be confined to the question, Was the Denver act abrogated also by the repealing provision above quoted, or did its repeal follow the adoption of the subsequent law by implication. This act is not, as claimed, an amendment of the law of 1844: it is "an act for the relief of the citizens of Denver in the Territory of Colorado." It is local and special: it was intended to relieve the inhabitants of a particular locality from an inconvenience or disability existing under the general law and confer upon them certain privileges not bestowed thereby. This important and controlling purpose was attained by the very language of the statute itself; so far it was in no way dependent upon the general town site law of 1844. The act did not itself operate as a conveyance of the legal title because no "words of present grant were inserted therein, and such was not the legislative intention. It recognized and declared a right to title but required that a patent issue, and that certain preliminary steps be taken by the probate judge therefor. This procedure by that officer was incidental to the main purpose of the act; had congress remained silent on this subject the statute would have been inoperative, but not invalid. That body chose to avoid a useless repetition of lengthy provisions, it incorporated into the Denver act by reference to the law of 1844, a statement of the preliminary steps required of the probate judge; the following language is used, "except as herein modified, the execution of the foregoing provisions shall be controlled by the provisions of said act of May 23d, 1844." We understand this to mean; that in procuring the patent to the Denver town site and conveying to the proper parties, the probate judge should proceed in the manner prescribed by the former law for the government of probate judges generally, in making town site entries; it is just the same in our judgment as though congress had copied into the latter act these provisions from the former. It is therefore a logical sequence that the identity of the two laws in this respect does not affect the following propositions: that the latter is independent and complete; that the procedure for procuring patent and executing the trust incorporated by reference to the prior general law remained in force for the purpose of carrying out the provisions of the special act; and that the existence and effect of the latter were not jeopardized by the repeal of the former. "A statute which refers to and adopts the provisions of another statute is not repealed by the subsequent repeal of the statute adopted:" Siker v. The Chicago and N. W. Ry., 21 Wis., 375; Wood v. Hustis, 17 Wis., 429; Crosby et als. v. Smith et als., 19 Wis., 472. We prefer at present to limit the foregoing doctrine to the facts in the case at bar. Our statement of it, then, is as follows: A local and special statute which adopts by reference provisions relating to procedure in an existing general law is not necessarily abrogated or affected by the subsequent repeal of the act containing the provisions adopted. The case of Ellison v. Jackson Water Company, 12 Cal., 542, cited by counsel for appellant, is not in point. The act there held inoperative by the repeal of the former law was general, not special; it was simply a supplement or amendment to the law repealed; it extended the provisions of the prior statute to include things not therein enumerated, viz: "Bridges, ditches, flumes, or aqueducts, constructed to create hydraulic power or for mining purposes." The court appropriately say that the repeal "carried with it the supplementary acts;" * "without the original act there was * no mode of enforcing the supplementary act. But it is argued by counsel that the provisions of the Denver act are repugnant to and inconsistent with the statute of July, 1864; that, therefore, ignoring its dependence upon the law of 1884, there was both an implied and an express repeal thereof; that such repugnancy and inconsistency in and of themselves operated to produce a repeal by implication, and also bring the statute within the express provision repealing all inconsistent acts and parts of acts. It is hardly necessary for us to consider these propositions separately. If there is no such repugnancy as would produce a repeal by implication, it will in our judgment appear that in this instance there is no such conflict or inconsistency as produces an express repeal under the declaration quoted. The law does not favor repeals by implication; they will not be adjudged to follow unless there is such a repugnancy that the two statutes can not consistently stand together; the legislative intent to substitute the new for the old law must clearly appear; this intent is never prima facia presumed: Potter's Dwam's, p. 155, and cases cited; Bishop on Written Law, section 154, and cases. * * And a stronger repugnancy of legislative intent is necessary where the repeal of a prior special act is claimed to result from the subsequent passage of a general law. "A general affirmative statute does not repeal a prior particular statute * unless negative words are used, or unless there is such irreconcilable inconsistency as indicates an intent of the legislature to repeal:" Sedgwick on Construction of Statutes, p. 98, note (a) and cases cited; Conley et al. v. Supervisors, 2 West Va., 416; Ottawa v. LaSalle County, 12 Ill., 339; Brown v. County Commissioners, 21 Pa. St., 43; Blain v. Bailey, 25 Ind., 165; Williams v. Pritchard, 4 S. R. E. The reluctance to recognize a repeal by implication in the latter case is still greater where the prior statute is not merely special or local in its application, but also relates to a purely local subject; it has been said that there the "language and scope of the subsequent act must be equivalent to an express repeal:" Cole v. Board of Supervisors, 11 Iowa, 552. Of course the cardinal rule of construction prevails in this field. The inquiry in all cases is, what did the legislature intend? The numerous and discordant decisions upon this subject attest the difficulty of discovering and declaring safe subordinate tests as general rules. But the foregoing remarks indicate that there is a recognized difference in the degree of clearness with which the intent must appear; a difference dependent upon the character and purpose of the prior statute. In this particular the cases seem to be in harmony; but the minor tests adopted by courts in their endeavor to arrive at the legislative design in this matter, are not uniformly applied even under similar circumstances; and each particular case must, of necessity, be determined, largely upon its own peculiar facts and surroundings, irrespective of rules and precedents. We apprehend, however, that with the light afforded by the recognized distinction above stated, there will be no serious difficulty in correctly answering the ques.ion of repeal in the case before us. Were the Denver act, and that of July, 1864, both general, we might be constrained to agree with counsel for appellant; they provide systems of procedure for patent radically different; the former preserves the trustee method of making entries; the latter discards it entirely, and substitutes a system wholly at variance therewith; there is nothing to indicate that the latter was designed to be cumulative; it can not, therefore, be contended that both systems are applicable to the same town town-site patent proceedings. But the Denver statute possesses three characteristics, which, in our judgment, under the law above stated, prevent its repeal, on the ground of inconsistency or repugnancy: First, it is special, in that its operation is confined to a particular municipal corporation; Second, it treats of a purely local subject; and, Third, there is but one thing to be done, a single act or proceeding authorized, viz., the procuring of patents to certain specified quarter sections of land. Upon issuance of this patent, the act practically performed its office. This is unlike those cases where the particular thing to be done is repeated at stated or irregular intervals; as where a peculiar or unusual tax is authorized to be collected from year to year by the city authorities, or where a special penalty is visited in a particular city or county, upon the commission of a stated offense. The primary reason for declaring repeals by implication is that conflict and confusion may not prevail in the application of the law. It is presumed that the legislator intended that no difficulty of this kind should exist. Hence, where two statutes relating to the same subject are so conflicting that they cannot both be applied to the subject referred to, and the latter is not cumulative, courts have recourse, when necessary to avoid confusion and carry out the legislative intent, to the doctrine of repeals by implication. But the concurrent existence and enforcement of the Denver act and the July law could produce no inconvenience or confusion; no conflict could arise in complying with their respective provisions; no one could ever attempt to enter any other town site under the Denver act; and the entry of the tracts of land specified therein could in no possible way affect proceedings for patents in other cases under the general law. To avoid the foregoing conclusions, we must say that the land specified in the Denver act was intended to be included by congress as one of the town sites mentioned in the July law; this would amount to a concession of the very point under discussion. If congress did not so intend, there can be no repugnancy or inconsistency between the statutes; for, in that event, they do not refer to the same subject matter. Unless we can find something else besides the so-called repugnancy itself of the two acts, to indicate an intention on the part of congress to have the latter include the subject matter of the former, we must hold that it does not do so. For, as already shown, all presumptions in cases like this are against recognizing this kind of repeals. It is agreed that on the first of July, 1864, congress had before it the whole subject of town-site entries on the public domain, and that if it had been the intention to retain in force the Denver statute, such exception would have been expressly stated. It may be answered that the Denver act was passed at the same session, and only thirty-two days prior to the July law; that hence the presumption that congress had not forgotten its existence, is especially strong; and that it is reasonable to suppose that if that body intended to rescind so recent an enactment, it would have so declared in express words; this precaution was taken with reference to the general act of 1844, in connection with which much less uncertainty could arise. Nor does the statement that all inconsistent acts were repealed, imply that congress had specially in view the Denver act. This provision is common in general statutes; it is inserted through an abundance of caution, and creates no necessary presumption that there are |