Goodno v. City of Oshkosh , 31 Wis. 127 ( 1872 )

Dixon, C. J.

In the edition of the statutes prepared and arranged by him, Judge Taylor starts the quaere, whether section 9, ch. 123, R. S., providing that no more than one change of the place of trial shall be awarded in any action, has not been repealed. 2 Tay. Stats., 1425, § 11, note. The judge refers to ch. 163, Laws of 1868, and ch. 65, Laws of 1869, as the basis of the suggestion. The former chapter reads as follows : “ Section 1. Section nine of chapter one hundred and twenty-three (123) of the revised statutes, is hereby amended, and shall read as follows: ‘ Section 9. When the place of trial shall be -changed as provided in this chapter, it shall be changed to some county where the causes complained of do not exist, and no more than one change in the place of trial shall be awarded, except upon the written stipulation of the parties or their attorneys, or until one or more trials shall have been had in said county.’” The words in italics indicate the change which was made by the amendment, and those not italicized, the statute as it stood prior to the amendment, with only the words “ in any action ” omitted, and which should be added at the end. The act of 1869 is in these words: “ Section 1. Chapter 163 of the general laws of 1868, entitled ‘an act to amend chapter 123 of the revised statutes, entitled of the place of trials of civil actions,’ is hereby repealed.”

The rule of construction enacted by statute in this state, that no act or part of an act repealed by a subsequent act of the legislature shall be deemed to be revived by the repeal of such repealing act, is well understood. R. S., ch. 5, sec. 25, subd. 3; 1 Tay. Stats., 183, § 25, subd. 3.

In State v. Ingersoll, 17 Wis., 631, this court decided that where a statute provides that a certain section of a former statute shall be “amended’so as to read as follows,” ,etc., any provision of such section not found in the new statute is repealed. It follows very clearly from that decision, that, whatever provision of the former statute was in force after the amendment of 1868, it was so in force because of being found in the amendatory act, and that if all or substantially -all of the former section continued to be the law, it was merely by reason of its having been copied into and re-enacted with the amendment. The original section, as an independent and distinct statutory enactment, ceased to have any existence the very moment the amendatory act was passed and went into effect, and whatever provisions of it remained as law were such solely by virtue of being again enacted in the amendment. The original section, as a separate statute, was as effectually repealed and obliterated from the statute book, as if the repeal had been made by direct and express words, and none of its provisions had been re-enacted. Such being the operation of the act of 1868, the conclusion as to the operation of that of 1869 is not difficult. It repealed the whole of the act of 1868, as well that part which re-enacted the provisions of the original section, as the part which was added to those provisions. How such repeal can bo severed, and said to apply only to that portion of the act of 1868 which was new, and not to affect that portion which was old or borrowed from the provisions of the previous statute, is certainly not easy to be perceived. If we areffo look for the intention of the legislature in the language it employs, which is the only criterion where the language is plain, then it is not easy to see that the legislature did not intend to repeal the whole act, both that which was old and that which was new or brought in when the repealed act was passed. Such is the inevitable result by every rule of statutory construction with which we are familiar; and this court is not to go outside of the plain language of a statute to speculate upon what -may have been the possible intention of the legislature, or to consider what may be the inconviences or mischief resulting from its giving effect toa statute according to its obvious import -and meaning. If the legislature has made a mistake, it is for the ¡legislature to correct it. This court has no sufficient evidence that the legislature has done so ; but if it had, it has not the legislative power of correction, or to arrest the operation of laws constitutionally passed. It cannot stop tbe force of a repeal when tbe legislature bas plainly and unambiguously so enacted. It would be a migbty undertaking for tbis court, if it bad the power, to correct all tbe mistakes and evils of hasty and ill-considered legislation. But tbe court has no such power, and no disposition to usurp the functions of another coordinate and independent department of tbe government. It is quite enough for tbis court to answer for and rectify its own mistakes and errors, without entering upon forbidden ground to correct tbe supposed mistakes of others.

The case of Smith v. Hoyt, 14 Wis., 252, bas been referred to as possibly furnishing a rule for a decision in tbis that tbe repeal of the act of 1868 did not carry with it tbe provisions of tbe previous section of tbe revised statutes, or that such repeal operated only to revive and restore such previous section. If tbis court were anxious to legislate, as, unfortunately, under the guise of construing statutes, courts have too often done, that decision would seem hardly to furnish a plausible pretext for its so doing. It seems too plainly and clearly distinguishable from the present to afford any ground for such decision. Tbe point there held was, that where a statute merely excepts a particular class of cases from tbe provisions of a previously existing general law which continues to be in force, tbe repeal of tbe excepting statute operates to bring such cases again under the general law. Tbe correctness of this rule is undoubted, and, in the present case, if tbe act of 1868 had been in terms and legal effect only tbe creation or enactment of an exception to tbe provisions of tbe previously exising section of tbe general law, thus leaving that section untouched and to stand of its own force as part of tbe general law, except as to tbe excepted cases, then tbe decision would have been applicable, and tbe repeal of tbe act would have brought all cases again under tbe operation of tbe previous section, which bad all tbe time bad an independent existence as part of tbe law, subject only to tbe exception while that lasted. But we have seen that tbe question here arises under entirely different circumstances, and different rules and principles must govern, tlie rule of that decision being wholly inapplicable.

The court below having refused the application of the de • fendant for a change of the place of trial solely on the ground that no more than one such change could be awarded in the action, it follows that the order appealed from must be reversed, and the cause remanded for further proceedings according to law.

Cole, J., concurs in the foregoing opinion.