Thorpe v. Schooling.

tender of the price, six stamped bank checks, issued under the state revenue Act of 1865, and in accordance with the schedule of stamp duties therein contained, as amended in 1866. The Treasurer declined and refused to furnish, on the ground that the Act of March 4th, 1871, (Stats. 1871, 142) amending the revenue laws, repealed that portion of them which had required the sale or affixing of a state revenue stamp to a bank check.

A. C. Ellis, for Relator.

L. A. Buckner, Attorney General, for Defendant.

By the Court, LEWIS, C. J.:

The question to be determined in this case is, whether an amendment of certain sections of the revenue Act of 1865, and the adoption of a new schedule of stamp duties, operate as a repeal of the old schedule; or whether both are to be upheld, so far as they do not directly conflict with each other. The question is raised by this state of facts: In the year 1865, the legislature enacted a general revenue law, among the various divisions of which was one entitled "Stamp Tax," the first section of which was Section 126 of the act, and reads thus: "On and after the first Monday of May, in the year of our Lord one thousand eight hundred and sixty-five, there shall be levied, collected, and paid, in gold coin of the United States, or in foreign coin, at the valuation fixed by the laws of the United States, for and in respect of the several instruments, matters and things mentioned and described in the schedule hereunto annexed, or for and in respect of the vellum, parchment, or paper upon which such instrument, matters or things, or any of them, shall be written or printed, by any person or persons, or party who shall make, sign, or issue the same, or for whose use or benefit the same shall be made, signed or issued, the several duties or sums of money set down in figures against the same, respectively, or otherwise specified or set forth in said schedule."

Following Section 139 of the act, (which is the last section touching stamp duties) comes a division entitled "Schedule Stamp Duty." In the year 1866, this last section was amended; and with it, as if it were a part of that section, the schedule was also

Thorpe v. Schooling.

amended in some particulars. In the present year (A. D. 1871) the legislature amended several sections of the general law of 1865 -among others, Section 126, above quoted-making, however, no material alteration, except that a new schedule of stamp duties is attached to and made a part of it. In this last act, no reference whatever is made to the schedule which had been adopted apparently as a part of Section 139 by the amendments of 1866. The schedule last adopted is substantially like that of 1866. Some few matters formerly requiring stamps are omitted, and the arrangement is somewhat different. However, on the whole there is but little change.

The question thus presents itself, whether the schedule last adopted and made a part of Section 126 supersedes that of 1866, or whether both are to be maintained so far as they do not conflict.

Our conclusion is, that the last schedule abrogates all others, and is the only one now in force. We are conducted to this result in this wise: The intention of the legislature controls the courts, not only in the construction of an act, but also in determining whether a former law is repealed or not. Whatever that body manifestly intended is to be received by the courts as having been done by it, provided it has in some manner, no matter how awkwardly, indicated or expressed that intention.

If therefore, it be clearly apparent that it intended to abrogate a former law, no matter whether that intimation be expressly stated or not, it must be carried out. This is in no manner adverse to the rule always acted on, that the later statute does not by implication repeal a former touching the same subject matter, where they can both be supported. If there be a repugnancy between them so that both cannot be enforced, it is presumed the legislature intended that the last act should prevail, that being the last expression of its will; and that by passing an act altogether repugnant to one already existing, it intended to repeal the former. So it is the intention of the legislature which controls in such cases, the repugnancy being the means only whereby it is ascertained. But the intention ascertained by any other means is equally cogent in controlling the courts. True, repeals by implication are not favored; and if it be not perfectly manifest, either by

Thorpe v. Schooling.

irreconcilable repugnancy, or by some other means equally indicating the legislative intention to abrogate a former law, both must be maintained. The intention, if perfectly clear, however, must control, however it may be expressed or manifested. It is upon this principle, evidently, that it is held that a statute revising the whole subject matter of a former law repeals it. So it was held in the case of Bartlett et als. v. King, Executor, 12 Mass. 537. In that case, an exceedingly useful statute, passed in 1754, concerning donations and bequests to pious and charitable uses, was held repealed by an act passed in 1785 upon the same subject matter; which, however, omitted to reënact some of its provisions. "A subsequent statute," said Dewey, J., "revising the whole subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former."

Can there be any doubt whatever, upon an inspection of the laws under consideration, that the legislature of Nevada intended to abrogate all former schedules, and to make that adopted by it in 1871 the only one thereafter to be in force? Clearly not. Here the whole subject matter of the former schedules is legislated upon in that adopted in 1871. And furthermore, can it be supposed that the legislature intended to have two schedules of stamp duties in the same act, one embracing nearly everything embodied in the other? We cannot persuade ourselves that anything so manifestly useless and absurd was intended; and if not, then it must be held that the last schedule was intended to abrogate or take the place of all former ones.

Again, Section 126 is the only provision of law that we have been able to find which directly imposes the stamp duties enumerated in the schedule. But that section, as amended in 1871, only imposes such duties upon the several instruments, matters and things mentioned and described in the schedule thereunto annexed; and then follows the schedule as amended, forming a part of the section itself. Now, what is more obvious than that stamp duties are imposed only on the instruments mentioned in the schedule. attached to or made a part of that section? Only one schedule is

Torreyson v. The Board of Examiners of the State of Nevada.

mentioned the word is not employed in the plural number. The question then arises, which schedule is referred to; that of 1866, or the one adopted as amended in 1871? Unquestionably, the latter. If so, then there is no law whatever imposing stamp duties on any instruments except those mentioned in the latter schedule. We are satisfied the legislature intended that the schedule last adopted should supersede all previous ones. Upon well settled rules of construction, therefore, that intention must prevail, and control the courts.

The writ must be denied. It is so ordered.

GARBER, J., did not participate in the foregoing decision.

WILLIAM D. TORREYSON v. THE BOARD OF EXAMINERS OF THE STATE OF NEVADA.

CLAIMS FOR OUTSTANDING STATE CAPITOL INDEBTEDNESS. Where a claim was duly presented under the Act of 1871, providing for payment of outstanding indebtedness incurred in constructing the state capitol, (Stats. 1871, 154): Held, that the State Examiners could not be required to examine or pass upon such claim until the completion and acceptance of the capitol. CONSTRUCTION OF STATUTES RELATING TO INDEBTEDNESS FOR STATE CAPITOL.

The

Act of 1871 relating to outstanding indebtedness for construction of the state capitol, (Stats. 1871, 154) must be read in connection with the Act of 1869, providing for its erection, (Stats. 1869, 73); and taking the two together, as no claim could be allowed or warrant drawn upon the $100,000 fund until completion and acceptance of the capitol, so also no indebtedness could be incurred. STATUTORY CONSTRUCTION-TITLE OF ACT. The title of a statute may be considered for the purposes of construction, and especially so when the title is referred to in the body of the act.

ALL PARTS OF STATUTES TO BE GIVEN EFFECT IF POSSIBLE. No part of a statute should be rendered nugatory, nor any language be turned to mere surplusage, if such consequences can properly be avoided.

APPLICATION to the Supreme Court for a writ of mandamus to compel the State Board of Examiners to take action upon a claim presented by relator Torreyson. The affidavit set forth that relator's claim was a bona fide one of $901.34 against Peter Cav

Torreyson v. The Board of Examiners of the State of Nevada.

anaugh, for labor and material performed and used in the construction of the state capitol; that the appropriation of $100,000 made by the Act of February 23d, 1869, for the erection of the capitol had been fully exhausted; that relator had presented the claim to the board in accordance with the provisions of the Act of March 6th, 1871, referred to in the opinion; that the board refused to act upon it for the reason that the capitol building was not completed and had not been accepted; and praying for a writ commanding the board to take action.

The board in its response set forth that the appropriation of $100,000 had not been allowed by it; that until such allowance no jurisdiction vested in it to hear and determine the alleged claim of relator; that it had not satisfied itself that all the moneys paid from the state treasury to Peter Cavanaugh, or others for him, for the construction of the capitol, had been actually used in such construction, and that such determination by it was a condition precedent to its action upon claims presented under the Act of 1871.

A. C. Ellis and R. M. Clarke, for Relator.

L. A. Buckner, Attorney General, for Defendants.

By the Court, WHITMAN J.:

At the session of 1869, the legislature of the State of Nevada passed an act entitled "An Act to provide for the erection of a state capitol at Carson City." In this Act are Sections 3 and 10, as follows:

"SECTION 3. The entire cost of said building when completed, (excluding the material furnished, as provided in Section 2 of this act) shall not exceed one hundred thousand dollars."

"SECTION 10. In letting contracts said Board shall not obligate the state to pay, nor shall the Board of State Examiners allow, to any contractor, at any time prior to the completion of his contract and its acceptance by said Board, more than seventy-five per cent. of the value of materials then furnished, or work then done; and upon completion and acceptance said Board of Commissioners may agree to pay, and said Board of Examiners may allow, the balance due on said contract."