36

will consider decisions of that court on the point in question.35 Again, it is determined that the Federal court possesses paramount authority when reviewing the final judgment of a state court upholding a state enactment alleged to be in violation of the contract clause of the Federal Constitution, to determine for itself the existence or non-existence of the contract set up, and whether its obligation has been impaired by the state enactment.3 But no jurisdiction exists in the Federal Supreme Court, under the twenty-fifth section of the Judiciary Act, to review a decision of the highest court of a State, maintaining the validity of a law which it has been set up "impairs the obligation of a contract," when the law set up as having this effect was in existence when the alleged contract was made, and the highest state court has only decided that there was no contract in the case.37 A state statute directing the state treasurer to write certain bonds off the books in his office and no longer to carry them as a debt of the State does not impair any existing obligation of the State to pay the bonds nor affect the remedy to recover upon them; and where the state court has so construed the act, in refusing to enjoin the treasurer from making the entries required thereby, at the suit of one claiming to own the bonds, no Federal right of the plaintiff is denied, obstructed, impaired or affected and the writ of error will be dismissed. This decision was rendered in a case wherein the State of South Carolina had issued bonds due in twenty years in aid of a railroad company. A state bank came to be the owner of some of these bonds. Subsequently the assets of the bank, including the bonds, were seized and carried away by soldiers of the Federal army. Some of the bonds were recovered from time to time by the bank and were paid or funded by the State, but some of them remained outstanding and

1

35 Blair v. Chicago, 201 U. S. 400, Wall. (77 U. S.) 511, 19 L. ed. 997 50 L. ed. 801, 26 Sup. Ct. 427. (in this case a state constitution was admitted to be a "law" within the meaning of the obligation of contracts clause).

36 New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co., 125 U. S. 18, 31 L. ed. 607, 8 Sup. Ct. 741.

37 Railroad Co. v. McClure, 10

nothing was known of them when a statute was enacted directing that no coupon bond of the State payable to bearer should be funded or paid by the state treasurer after the expiration of twenty years from the date of its maturity, and the receiver of the bank, which had been in liquidation for many years, brought in the state Supreme Court a petition for an injunction to restrain the treasurer from obeying the requirement of the statute.38 Where the allowance of an attorney's fee to be taxed as costs in case of a judgment against an insurance company for a total loss under the provisions of a state statute is the basis of the Federal right asserted, and it appears that one of the assignments of error relied upon before, and considered and expressly decided by, the highest court of the State, was that the statute was unconstitutional and void and in conflict with the Fourteenth Amendment for the want of mutuality and deprived the plaintiff in error of the equal protection of the law, the motion to be dismissed will be denied.39

§ 280. Same Subject - Instances Continued - Statutes Penal in Nature-Trustees of Corporations-Anti-Trust Laws.—The rulings of the highest court of a State, unanimously made, upon a question dependent altogether upon a statute of that State, relating to acts of a trustee of a corporation and liability thereunder, penal in its character, ought to be recognized in every court as, at least, most persuasive, although the case in which the ruling was made has not yet gone to final judgment.40 So the Federal Supreme Court will follow a state court in holding that under the laws of such State, as they exist, combinations described in the anti-trust laws are forbidden and penalized, whether by agriculturists, organized laborers or others, and, therefore, there is no dis

crimination against oil companies, and the latter are not deprived of the equal protection of the laws.41 Again, where the highest court of a State has held that the acts of a person convicted of violating a state statute defining and prohibiting trusts were clearly within both the statute and the police power of the State, and that the statute can be sustained as a prohibition of these acts irrespective of the question whether its language was broad enough to include acts beyond legislative control, the Federal Supreme Court will accept such construction although the state court may have ascertained the meaning, scope and validity of the statute by pursuing a rule of construction different from that recognized by the Federal Court.42

§ 281. Same Subject - Instances Continued - Foreign Corporations. Where the Supreme Court of a State has construed its constitution and statutes to the effect that a foreign corporation had no existence as a corporation in the State, and could acquire, therefore, no rights as such, and that an individual connected with the corporation had no independent rights in the premises, these conclusions do not involve the decision of Federal questions, but only the meaning and effect of local statutes and a finding of fact, neither of which is reviewable in the Federal Supreme Court.43

§ 282. Repeal or Amendment of Statutes.-Repeals by implication are not favored and will not be admitted unless there is such a repugnancy as to preclude the statutes being reconciled.44 Implied repeals are not limited to police regulations, but the rule has been applied to all classes of legisla

41 National Cotton Oil Co. v. Texas, 197 U. S. 115, 25 Sup. Ct. 379, 49 L. ed. 689.

42

Smiley v. Kansas, 196 U. S. 447, E. Creehman Lumber Co., 199 U. S. 49 L. ed. 546, 25 Sup. Ct. 276.

43 Telluride Power Trans. Co. v. Rio Grande Western Ry. Co., 187 U. S. 569, 23 Sup. Ct. 178, 47 L. ed. 307. See Swing v. Western Lumber Co.,

487, 50 L. ed. 281, 26 Sup. Ct. 133; Gibson v. United States, 194 U. S. 182, 48 L. ed. 926, 24 Sup. Ct. 613; Tracy v. Tuffly, 134 U. S. 206, 33 L. ed. 879, 10 Sup. Ct. 527; Chew

tion.45 And if laws are repealed by necessary implication they need not be referred to in a statute.46 Nor is a recital in a statute, that a prior act is repealed or superseded, conclusive, as the question whether an act has been so repealed or superseded is a judicial and not a legislative one.47 Statutes which impliedly repeal are not within a constitutional pro

Arkansas: Chamberlain v. State, See Omaha Real Estate & T. Co. v. 50 Ark. 132, 6 S. W. 524. Kragscow, 47 Neb. 592, 66 N. W. 658.

vision requiring amending or repealing acts to recite in their title the substance of the law repealed etc.48 If it is intended to amend a certain section of a statute it should be repealed to validate the amendment.49 And an unconstitutional repealing statute can have no effect.50 That the intent to repeal by implication did not exist may be evidenced by a still later amendment to the first act.51 If a later statute has reference to the building of branch lines and an earlier enactment provides for the changing of the terminus of a railroad which has not been finally located there exists no such repugnancy between the two enactments as to work an implied repeal.52 So an enactment providing for the liability of directors for debts for failing to make annual reports as to financial condition of a corporation is not repealed by an amendment permitting reports to be filed at a time specified in the amended act or during the next month.53 But a proviso to an existing act is held to have been repealed by an act which "amended" the former act, "by striking out all after the enacting clause and inserting in lieu thereof, the following:" this "following" being in part an iteration of the words of the section amended, and in part new enactments.54 And a proviso repealed may still be considered in construing remaining sections.55 Provisions of a

48 Memphis & State Line Rd. Co. v. Union Ry. Co., 116 Tenn. 500, 95 S. W. 1019. Examine St. Louis, I. M. & S. R. Co. v. Paul, 64 Ark. 83, 40 S. W. 705, 37 L. R. A. 504, 7 Am. & Eng. Corp. Cas. (N. S.) 772; ParkerWashington Co. V. Kansas City (Kan., 1906), 85 Pac. 781; Palatine Ins. Co., Ltd., v. Northern Pac. Ry. Co. (Mont., 1906), 85 Pac. 1032; State, City Water Co., v. Kearney, 49 Neb. 325, 68 N. W. 533, aff'd 49 Neb. 337, 70 N. W. 255.

"Grand Island & W. C. R. Co. v. Swinbank, 51 Neb. 521, 71 N. W. 48. 50. Porter v. Kingfisher County, 6 Okla. 550, 51 Pac. 741.

51 Lincoln School Township v.

American School Furn. Co., 31 Ind.
App. 405, 68 N. E. 301.

52 Memphis & State Line Rd. Co. v. Union Ry. Co., 116 Tenn. 500, 95 S. W. 1019.

53 Bank of Saginaw v. Peirson, 112 Mich. 410, 4 Det. Leg. N. 59, 70 N. W. 701. Examine Van Pelt v. Gardner, 54 Neb. 701, 75 N. W. 874, 74 N. W. 1083.

54 Steamboat Co. v. Collector, 18 Wall. (85 U. S.) 478, 21 L. ed. 769 (a case of statute in relation to tax on steamboat receipts).

55 Bank for Savings v. Collector, 3 Wall. (70 U. S.) 495, 18 L. ed. 207 (a case of taxation of banks).