Hyperlawhypertext legal database William Ottman & Co. v. Hoffman 58 N.Y. St. Rep. 320

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William Ottman & Co. v. Hoffman

58 N.Y. St. Rep. 320 Court N.Y.C.P. Decision date 1894-04-02 English

Delivered by Bischoff, J.

Contents

Majority

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William Ottman and Company, Resp’t, v. Joseph E. Hoffman, App’lt.
(New York Common Pleas, General Term,
Filed April 2, 1894.)

Headnote

1. Statutes—Repeal.
When the legislature undertakes to substitute one law for another, it intends to repeal the latter.
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3. Same.
In the absence of contrary intention, the effect of the repeal of a repealing law is to restore the law repealed by the latter.
When two inconsistent acts are enacted on the same day, the order of their priority may, in the absence of facts to the contrary, be inferred to have been as indicated by their respective numbers.
4. Evidence—Judicial notice.
Judicial notice extends to the time at which a statute takes effect.
5. Same.
In the absence of a record of the precise time of day when the several acts were approved by the governor, the court may inquire of those present on the occasion of such approval.
S. Statutes—Chap. 677 of 1893.
Chap. 677 of 1893 did not affect acts passed by the legislature at the same session.
Appeal from a judgment of the general term of the city court of Hew York, which affirmed a judgment overruling a demurrer to, and awarded plaintiff the relief demanded in the complaint. Action to recover for the debt of a corporation against one of its trustees pursuant to the provisions of § 3 of chapter 228 of the Laws of 1877, which are to the effect that the trustees of a corporation, organized without capital stock, should be jointly and severally liable for the debts of the corporation contracted while they were such trustees.
Leo Q. Rosenblatt, for app’lt; M. A. Eursheedt, (Joseph Feitrech, of counsel), for resp’t.

By the express provisions of the constitution of this state, (Art. TY, § 9) acts of the legislature approved by the governor, become effective as laws only upon such approval, Sutherland on Stat. Constr. § 104; and, whenever, in the ascertainment of the rights and obligations of parties such becomes material, courts may inquire into the precise time when the several laws took effect. Town of Louisville v. Portsmouth Savings Bank, 104 U. S. 469 . In the case last cited Mr. Justice Harlan observed "that “courts may, when substantial justice requires it, ascertain the precise hour when a statute took effect by the approval of the executive. * * * We look to the final act of approval by the executive to find when the statute took effect and, when necessary, inquire as to the hour of the day when that approval was in fact given.” The legal fiction that the law does not recognize the fractions of a day does not obtain in such a case, (Sutherland on ■Stat. Constr. § 110). This is in accord with the views expressed by Judge Story in the following terse language, “I am aware that it is often laid down in law there is no fraction of a day. But this doctrine is true only sub modo, and in a limited sense, where it will promote the right and justice of the case. It is a mere legal fiction, and therefore, like all other fictions, is never allowed to operate against the right and justice of the case. On the contrary, the very truth and facts, in point of time, may always be averred in furtherance of the right and justice of the case; and there may

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be even a priority in an instant of time; or in other words, it may have a beginning and an end." Matter of Richardson, 2 Story, U. S. C. C. 571; see also Governor v. Magill, 37 Ill. 239 ; Small v. McChesney, 3 Cowen, 19; Clute v. Clute, 3 Denio, 263 ; Phelan v. Douglass, 11 How. Pr. 193 ; Rusk v. Van Benschoten, 1 How. Pr. 149 ; Blydenburgh v. Cotheal, 4 N. Y. 418 . The complaint predicates defendant’s liability upon tiie facts that at the- time of the contraction of the alleged debt, defendant was a trustee of the Importers and Traders’ Club, a corporation organized without capital stock pursuant to the provisions of chapter 228 of the Laws of 1877, and of the provisions of section three of the chapter and law last referred to which are to the effect that the trustees of such a corporation shall be jointly and severally liable for all the debts contracted by it while the persons proceeded against were such trustees and provided an action to enforce the liability is brought within two years from the time when the debt accrued. No question arises with reference to the contraction of the debt by the Importers and Traders’ Club, that defendant -was a trustee at the time of the contraction of the debt, and that this action was brought in due time. The allegations of the complaint in these respects are admitted by defendant’s demurrer. Cutler v. Wright, 22 N. Y. 472 , 478. But, defendant contends, the provisions of § 3 of chapter 228 of the Laws of 1877 were not in force at the time of the contraction of the debt, June 1st, 1892, to December 31st, 1892, and whether they were or not, is the precise question intended to be raised by the demurrer-. The Stock Corporation Law (chap. 564 Laws of 1890) in express terms repealed the provisions of section three of chapter 228 of the Laws of 1877. Section 70 of the Stock Corporation Law of 1890 provided that so much of the several laws which were enumerated in the schedule annexed to article IV of the act as was specified in the last column of the schedule should be deemed to be repealed, but that the repeal should not be deemed to have revived any prior law which was repealed by the law last repealed and should include within its effect all laws amendatory of the law last repealed. Among the laws specified in the last column of the schedule are § § 3, 4, and 5 of chapter 228 of the Laws of 1877. Section 73 of the Stock Corporation Law of 1890 provided that the provisions of that act should be effective from and after May 1st, 1891. In 1892 (chap. 688, Laws of 1892) the Stock Corporation Law of 1890 was amended. The amendatory act provided that the act of 1890 should “read as follows,” and then substituted provisions which omit those of § 70 of the act of 1890 and others of like purport. Neither does the amendatory act of 1892 contain any provisions which are in conflict with the continued vitality of § 3 of chap. 228 of the Laws of 1877. It is always to be assumed that the legislature acted deliberately and with full knowledge of all existing laws and when therefore it undertakes to substitute one law for another, its intention to repeal the latter is obvious. Such a substitution is apparent from a subsequent act which provides that a former act shall be amended “so as to read as follows,” Moore v. Mansert, 49
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N. Y. 332 ; People v. Supervisors, etc., 67 N. Y. 109 ; Matter of Prime, 136 N. Y. 347 ; 49 St Rep. 658 ; Sutherland on Stat Constr. § 137 ; and since the effect of the repeal of a repealing law is to restore the law repealed by the latter, in the absence of a contrary intention expressly declared, or necessarily to be implied from the enactment of provisions, conflicting with those of the law which would otherwise be revised, Wheeler v. Roberts et al., 7 Cowen, 536 ; Van Denburgh v. Prest., etc., of Greenbush, 66 N. Y. 1 ; Sutherland on Stat. Constr. Secs. 162, 168, it is indisputable that the act of 1892 amendatory of the Stock Corporation Law of 1890 revived the provisions of § 8 of chapter 228 of the Laws of 1877 and restored them to full force and vigor with respect to all transactions subsequent to the taking effect of the amendatory act of 1892, unless the last mentioned act is affected by the provisions of chapter 677 of the Laws of 1892 known as the Statutory Construction Law and next to be noticed.

The Statutory Construction Law, chapter 677, laws of 1892, provides (§ 1) that the provisions of that act shall be applicable “to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter ” and (§ 81) “that the repeal hereafter or by this chapter, of any provision of a statute which repeals any provision of a prior statute, does not revive such prior provision.” Obviously then, if the act of 1892, chapter 688, amendatory of the Stock Corporation Law of 1890 is affected by the provisions of § 31 of the Statutory Construction Law of 1892 the repeal of the Stock Corporation Law of 1890 did not revive the provisions of § 3 of chapter 228 of the laws of 1877, and defendant thus would have to be absolved from liability thereunder. But both laws, the Statutory Construction Law of 1892, as well as the act of 1892, by which the Stock Corporation Law of 1890 was amended and repealed were approved by the governor on ¡lie same day and each provided that it should take effect immediately ; and as the question of the order of their approval is presented to us by demurrer to the complaint, we have not the advantage of evidence adduced by either party to aid us in determining the order of their priority in respect to executive sanction and their consequent taking of effect. Plaintiff therefore contends that since both acts took effect on the same day, it must be assumed that they became laws simultaneously; and hence that the act amending and repealing the Stock Corporation Law of 1890 is not affected by the provisions of § 31 of the Statutory Construction Law of 1892 because that section is made applicable only to repeals subsequent to its enactment Defendant, on the other hand, maintains that inasmuch as the act of 1892 which amends and repeals the Stock Corporation Law of 1890 is numbered 688, while the Statutory Construction Law of 1892 is numbered 677,the presumption is that the acts were severally approved in the order in which they appear numbered, 677 being first and 688 latter in point of time, and so that the inhibition of the revival of a law repealed by a law in turn also repealed, provided for by § 31 of the

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Statutory Construction Law of 1892, chap. 677, applies to the act of 1892, chap. 688, amending and repealing the Stock Corporation Law of 1890, and that § 3 of chapter 228 of the Laws of 1877 cannot therefore be deemed to have been revived by the repeal of § 70 of the Stock Corporation Law of 1890,and was therefore not in force at the time of the contraction of plaintiffs demand against the Importers and Traders’ club. In Metropolitan Board of Health v. Schmades, 3 Daly, 282 ; 10 Abb. Pr. N. S. 205, it was held at general term of this court (Daly C. J. and Yan Brunt and Loew J. J. concurring) that when two,inconsistent acts of the legislature are enacted on the same day, the order of their priority in enactment may, in the absence of facts to the contrary, be inferred to have been as indicated by their respective numbers the one bearing the earlier number being deemed to have been first enacted. See also Strauss v. Heiss, 43 Md. 292 . The same result might, however, also be reached upon other grounds respecting the case at bar. It was incompetent for defendant to tender any issue of fact by pleading the latter approval or enactment of the act of 1892 amending and repealing the Stock Corporation Law of 1890. The determination of that question comes within the range of those matters of which courts and judges are required to take judicial notice, and which need not therefore be proved, “In fine” says Chief-Judge Hunt in Swinnerton v. Columbian Insurance Co., 37 N. Y., 174 “courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction and where the “memory of the judge is at fault, he may resort to such documents of reference as may be at hand and he may deem worthy of confidence.” In People v. Purdy, 4 Hill, 284 , the question was whether, or not the act there under discussion was passed by a majority of the legislature, or by a vote of two-thirds, and Senator Franklin observed (p. 404) “judges are bound to take notice of a general law, and it is their province to determine whether it be a statute or not; for as against a general statute, nul hel cannot be pleaded, but it must be tried by the judges who are to inform themselves in the best way they can.” Ottawan v. Perkins, 94 U. S. 260 , it was held that the question whether an alleged statute “is realty a law or not, is a judicial one, and is not a question of fact to be determined by a juryand this was approved in Town of Walnut v. Wade, 103 U. S. 526 . In Gardner v. Barney, 73 U. S. 890 , the controversy was concerning the time of the taking of effect of an act of Congress by the President’s approval and Mr. Justice Miller, in delivering the opinion or the court, declared “There'is no reason, then, on sound principle, why the court should confine itself to the date made by the president, or, if he has made none, should reject all other sources of knowledge. The judicial notice of the court must extend, not only to the existence of the statute, but to the time at which it takes effect, and to its true construction. We are of opinion, therefore, on principle as well as on authority, that whenever a question arises in a court of law of the existence of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is
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capable of conveying to the judicial mind a clear and satisfactory answer to such question ; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.” In The Prince's Case, 8 Coke 28, it was the opinion of the court ‘‘that against a general Act of Parliament, or such whereof the judges ex officio ought to take notice, the other party cannot plead nul tiel record, for of such Acts the judges ought to take notice. But if it be misrecited, the party ought to demur in law upon it. And in that case, the law is grounded upon great reason, for God forbid, if the record of such Acts should be lost, or consumed by fire, or other means, that it should be to the general prejudice of the Commonwealth; but rather, although it be lost or consumed, the judges either by the printed copy, or by record in which it is pleaded, or by other means, may inform themselves of it.” See also Hale’s History of the Common Law pp. 14, 16; Kent’s Commentaries, vol. 1, p. 460, Lacy’s ed. 484, &c.; Sutherland on Stat. Constr. § 181 &c., 292 &c. Judicial notice of a general statute extends to the time when it takes effect. Att'y Gen'l v. Frost, 11 Wisc. 16; State v. Bailey, 16 Ind. 46 ; Heaston v. Cinn. & Ft. W. R. Co., 16 Ind. 275 ; Pierson v. Baird, 2 G. Greene 235 ; Berliner v. Waterloo, 14 Wisc. 378.

We would be authorized, therefore, upon abundant authority, in the absence of a record of tire precise time of the day at which the several acts of the legislature were respectively approved by the Governor, to inquire of those who in the performance of their public duties were present on the occasion of such approval and to receive their statements to aid us in the determination of the question suggested by this appeal. It appears from the statement of State Senator John J. Linson, submitted for appellant, that he was present when the. Statutory Construction Law (chapter 677 of the Laws of 1892) received executive approval and that it was the first of the chapters, the priority of which is in dispute, which was so approved. Mr. T. S. Williams, then the governor’s private secretary, states that the exact time of approval was not recorded, but that bills are usually signed by the governor in the order in which ■they are numbered. We have no reason to doubt the accuracy of these statements. Nor are they disputed. As the result, therefore, we would be constrained to conclude that chapter 677 of the Laws of 1892 became effective before chapter 688 of the same year and hence that the latter chapter was subsequently within the meaning of § 31 of chapter 677 and so that § 3 of chapter 228 of the Laws of 1877 was not revived by the repeal of the Statutory Construction Law of 1890. But clearly the Statutory Construction Law of 1892 (chapter 677) affords intrinsic evidence that it was not intended to and therefore did not affect acts passed by the legislature at the same session. Chapters 677 to 691 comprised the revision of general laws which was enacted by the legislature at its session of 1892. Section 33 of the Statutory Construction Law (chapter 677) expressly provides that “ No provision of any chapter of the revision of the general laws, of which this chapter is a part, shall supersede or repeal by implication any law passed

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at the same session of the legislature at which any such chapter was enacted, or passed after the enactment of any such chapter and before it shall have taken effect.” To hold therefore that the inhibition of section 31 of the Statutory Construction Law (chapter 677) against the implied revival of the provisions of a statute repealed by another statute in turn also repealed applies to the act (chapter 688) amendatory of and repealing the Stock Corporation Law of 1890, is in effect to say that the provisions of chapter 688 in so far as they operated to revive § 3 of chapter 228 of the Laws of 1877 were in fact superseded by the provisions of § 31 of chapter 677 though both chapters, 677 and 688, were enacted at the same 'session of the legislature. This would be contrary to the declared legislative intention and in this aspect of the question it is immaterial which of the chapters was first approved by the governor. We are of the opinion therefore that the question presented to us was correctly decided by the court below and that the judgments appealed from should be affirmed with costs. All concur.

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