Lewis v. Stout , 22 Wis. 234 ( 1867 )

DixoN, C. J.

It is a general rule in the construction of statutes, that a' statute which revises the subject matter of a former statute, works a repeal of such former statute without express words to that effect. The act of March 31, 1860 (Laws of 1860, chap. 315), to provide for letting, the public printing by contract, seems to be a substitute for the previous act on the same subject (Laws of 1858, chap. 114—R. S., p. 92,); and this rule would no doubt govern in its construction but for the language of* the fifteenth section. That section provides that “ all acts, and parts of acts, inconsistent with the provisions of this act, are hereby repealed.” This language seems to indicate very clearly that if there were any parts of the former act not “ inconsistent,” the same were not to be repealed. It was provided by section 7 of the former act, that the bond to be given by the successful bidder conditioned for the faithful performance of the duties assigned him, should be executed to the governor. Section 5 of the latter act provides for the execution of a similar obligation, but contains no directions as to the person or officer to whom the same shall be executed. It is consistent, therefore, with the latter act, that the provision of the former as to the execution of the bond to the governor should remain in full force. I am of opinion that such is the true construction, and that the bond in suit was properly so executed.

But if I am wrong in this, and the bond should, as is contended, have been executed to the state instead of the governor, then, though it is not good as a statutory bond, it is nevertheless binding as a voluntary obligation, upon which an action at common law may be maintained. The authorities to this point are too numerous to be cited, and, as is observed in one of them, there is no case to be found contradicting the position. The Governor v. Allen and McMurdie, 8 Humph., 176; Goodrum v. Carroll, 2 Humph., 490; Croy v. Ohio, Wright, 135; Hibbits v. Canada, 10 Yerg., 465; Kavanagh v. Saunders, 8 Greenl., 422; Hay v. Rogers, 4 Monroe, 225; Todd v. Cowell, 14 Ill., 72; Van Deusen v. Hayward, 17 Wend., 67; Justices of Christian v. Smith, 2 J. J. Marsh., 472; United States v. Tingey, 5 Peters, 115; Tyler v. Hand, 7 How., 573; State v. McAlpin, 4 Iredell’s Law Rep., 140; Vanhook v. Barnett, 4 Dev. Law, 268; Warfield v. Davis, 14 B. Mon., 41. A bond taken under a statute is not void because it does not conform to the statute, unless the statute so declares. There is nothing in the act of 1860 which renders the bond void. A bond to the governor is not forbidden, nor is it declared void; and there is no principle of the common law which makes it so. It is neither immoral nor illegal; and the subject matter being sufficient, and the parties competent to contract with reference to it, the contract so freely executed is valid and binding. It is a good common law obligation.

Section 5 of the act of 1860, under which the bond was executed, was repealed by chapter 182, Laws of 1865; and it is contended that such repeal operates as a release or waiver of all claim on the part of the state. Counsel do not, as I understand, contend that the obligation of a contract can in general he impaired by the repeal of the statute under which it was executed, hut that it was so in this case, because the state is the real party in interest.in enforcing the bond. There can be no doubt about the power of the legislature to release the bond, and whether it has done so in this case is a mere question of legislative intent. It seems to us that no such inference can be drawn from the mere fact of repeal, especially where, as in this instance, the repeal is effected by the substitution of another and far more stringent statute upon the same subject. This looks as if the motive was, not to release causes of action which had already accrued to the state upon these obligations, but to provide for their more certain fulfillment in the future; and it is probable that nothing could have been further from the intention of the legislature at the time, than the purpose urged by counsel.

"Whether the plaintiff is a trustee of an express trust, authorized to sue in his own name under the statute, is not a question open to discussion on this demurrer. The complaint expressly alleges that he is such trustee, and that allegation is admitted by the demurrer.

By the Court. — Order affirmed.