Commonwealth v. Kelliher , 94 Mass. 480 ( 1866 )

Bigelow, C. J.

It is clear that this complaint cannot be maintained. The only statute requiring owners of dogs to cause them to be registered, numbered, described and licensed, and to wear collars marked with the owner’s name, which was in force at the time when the defendant is charged with having failed to comply with the requirements of law in relation to the dog owned by him, was St. 1865, c. 197. The previous statute on the same subject, St. 1864, c. 299, §§ 1, 5, was repealed by the enactment of the statute first cited. Whenever a statute is passed which embraces all the provisions of previous statutes on the same subject, the new statute operates as a repeal of all antecedent enactments.

This well settled rule of interpretation is founded on the reasonable inference that the legislature cannot be supposed to have intended that there should be two distinct enactments embracing the same subject matter in force at the same time, and that the new statute, being the most recent expression of the legislative will, must be deemed to be a substitute for previous enactments, and the only one which is to be regarded as having the force of law. Bartlet v. King, 12 Mass. 536. Commonwealth v. Cooley, 10 Pick. 39. On comparing the St of 1865, e. 197, § 1, with that enacted the previous year, St. 1864, c. 299, § 1, it will be found that the former is identical with the latter, with the single exception that in one the requirement is that the dog shall be registered, numbered, described and licensed in the town or city where the owner resides, and in the other, St 1865, c. 197, it is to be done in the town or city where the dog is kept. The real purpose of the latter act probably was to change the place where the registry was to be made and the license granted, in cases where a dog was kept in a town or city different from that in which his owner resided. But in endeavoring to effect this purpose the legislature, instead of amending the statute of the previous year in a single particular, reenacted the entire provision requiring and regulating the registry and licensing of dogs. This was clearly a statutory revision of the whole subject matter, and was a substitute for and a repeal of the previous enactment. Clearly both enactments cannot stand together. The legislature could not have intended that in any case the owner or keeper of a dog should be required to procure two separate and distinct licenses in two cities or towns, to be in force at one and the same time, or to place on the collar around his neck two distinct registered numbers, which would be the result if both statutes are held to be in operation. The evidence at the trial proved that the defendant was the owner and keeper of a dog subsequent to April 1866. His offence, if any, was a violation of the St. of 1865, c. 197, § 1. But no penalty is affixed to a breach of the provisions of that section. The penalty prescribed by the previous statute cannot be imposedj it was in express terms confined to a violation of the provisions of that act, which has been repealed. The case is therefore one where a party has failed to comply with the requirements of a statute, in a matter of mere police regulation, not embracing any act or omission in itself criminal, or of evil example, and where no penalty is prescribed for a breach of the provisions of the law. We know of no rule or principle upon which a criminal prosecution can be maintained under such circumstances. The verdict must therefore be set aside, and the complaint dismissed. Exceptions sustained.