Petition of McHenry , 6 Pa. Super. 464 ( 1898 )

Per Curiam,

The 28th section of the Act of April 5, 1790, 2 Sm. L. 539,. has not been expressly repealed, and it is worthy of notice that it was omitted from the list of statutes and sections of the same act embraced in the repealing section of the Revised Penal Code of Procedure (Act of March 31, 1860, P. L. 427-451).

There was good reason for this. Imprisonment at labor in the county jail or prison for less than a year is still permitted by section 75 of the latter act when in the opinion of the court pronouncing the sentence, suitable prisons have been erected for such confinement and labor. Therefore, the reasons which actuated the legislature in providing for the appointment of keepers of such malefactors, whose duty it was to superintend and direct their labors, have not ceased to exist. As they enacted no substitute for the provision it is fairly to be presumed that they intended to leave it in force. The remark of Lord Bacon, “ that, as exceptions strengthen the force of a general law, so enumeration weakens, as to things not enumerated,” expresses a principle which often aids, if it does not conclusively control, in determining the intention of the legislature; which, after all, is the thing to be ascertained, whether the question be one of con struction or of implied repeal. Ifc lias even been held that a specific repeal by one statute of a particular section of another raises a clear implication that no further repeal was intended. Probably it is safer to say, that it is strong evidence that no further repeal was intended; and it is not here contended that the rule is so rigid as to prevent the consideration of other evidence of legislative intent, as, for instance, positive repugnancy or clear inconsistency between the provisions of the later law and those of the earlier. See Endlich’s Interpretation of Statutes, secs. 203, 397, 398 and cases there cited. “ It was long ago settled that an act of parliament cannot be repealed by nonuser. That this is the rule in this state accords with reason, and the absence of authority to the eontrazy. The settled rule is, that a statute can be repealed only by express provision of a subsequent law, or by necessary implication. To repeal by implication there must be such a positive repugnancy between the new law and the old, that they cannot stand together, or be consistently reconciled:” Homer v. Commonwealth, 106 Pa. 221. Ozrly so far as the later statute is repugnant to the prior, does it operate as a repeal. There is no such inconsistency or repugnancy between the act of 1860 and the 28th section of the act of 1790 as requires us to hold that keepers of jails or prisons may not be appointed in counties, where, in the opinion of the court, suitable prisons have been erected for imprisonment of convicts at labor.

There was, therefore, authority of law for the order approving the appointment of the keeper, and fixing his compensation if the county prison was suitable for the confinement of prisoners at labor. This was to be determined by the court having jurisdiction to make the order; and, as an appeal from the order would be a mere substitute for a certiorari, there could be no review of the judgment of the court upon the facts. The proceedings being regular, and the court having jurisdiction of the subject-matter, it must be presumed that it acted according to law. Furthermore, no appeal was taken from the order within the time allowed by law. We cannot now go behind it, and, upon an inquiry into the facts, treat it as nullity. So far as we have authority to determine in this proceeding, the order was valid until it was rescinded, and until that time the keeper was entitled to receive compensation. In other words, the question whether he was an officer de jure or merely de facto does not arise on this record.

We have not overlooked what the learned judge says in his opinion relative to the facts alleged in the petition of the commissioners to have the order rescinded. Passing the question whether facts can be brought on the record by a recital of them in the opinion, it is to be observed that the record does not show that the appellee had notice of the proceeding to revoke his appointment or that he appeared; and it is not alleged anywhere, that he, or anyone who had authority to speak for him, admitted the facts alleged in the petition. Therefore, he is entitled to have the appeal determined by the record proper, which shows ■a regular appointment on March 1,1897, and a qualified rescission of the order on October 26, 1897, which, in effect, left the original order in force, so far as it affected his right to compensation during the period of his actual service. There is no error in this record of which the appellants can justly or legally complain.

The order is affirmed and the appellants are directed to pay the costs.