Jordan v. State , 15 Ala. 746 ( 1849 )

DARGAN, J.

The defendant was indicted under the second section of the act of 1846, which provides, that every slave merchant, trader, dealer or broker, in slaves, before he shall be authorized ts sell any slave in any county of this state, shall procure from the clerk of the county court of said county, a license, for which he shall pay five dollars, on each slave he shall offer to sell, which license shall authorize him to sell such slaves, in any county in this state : and if any such merchant, trader, &c., shall sell any slave, without first obtaining such licence, he shall forfeit and pay three hundred dollars, on indictment, and conviction therefor, in the county in which said slave was sold. On the trial, a bill of exceptions was taken, which shows, that the defendant requested the court to charge the jury, that the act under which he was indicted, was repealed by the act of 1848 ; which provides, that all slave merchants, dealers, &c., before he shall make sale of any slave, shall procure from the clerk of the county Court, a license, for which he shall pay- ten dollars, for each slave which shall be offered for salé by him,. &c. This act prescribes the same penalty for éélling without a license, as is prescribed by the act of 1846, arid to be recovered in the same manner.

We think the act Of 1846, is repealed by the act of 1848. Thé rule is, that a subsequent statute. Will be a repeal of a former one, without express words of répéal, if the substance of the subsequent act, is inconsistent With the former. 2 Bibb. 96; 1 Ham. 10; 4 Wash. C. C. Rep. 691. It is true; that the law -does not favor the repeal of statutes by implication, but if their repugnance to each other is apparent,- the last must prevail, and this, necessarily works a repeal of the forhier law. Wyman et al. v. Campbell, 6 Porter 219.

, The act of 1846, provides, that the slave dealer, shall pay. five dollars for a license to sell each slave. The act of 1848, says he shall pay ten dollars for such a license; here -is a plain and palpable repugnance; both acts cannot stand together : the former, therefore, must be repealed, and was not the- law at the time of the trial.

■It is, however,- supposed that aS the act of 1848, is similar in its provisions to the act of 1846, except in this particular, the defendant may be convicted, but the question is, under what act can he be convicted. He has not violated the act of 1848, and the act of 1846, is no longer in existence ; nor is-there any provisión in the act of 1848, to punish those who had offended against the act of 1846. As the act under Which the defendant was indicted, was repealed before his trial, hé could riot he convicted.

The circuit court erred, in not giving the. charge requested, and the judgment must be reversed and the cause remanded.- ■