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Felt v. Felt, 19 Wis. 196. “It is familiar law that a later statute will operate as a repeal of a former, though it contains no express repeal, and even though its provisions are not absolutely repugnant to those of the former, whenever it is obvious that the one was intended as a substitute for the other." State v. Studt, 31 Kan. 245, 246; S. C. 1 Pac. Rep. 635, and cases there cited. See, also, Rogers v. Watrous, 8 Tex. 62; Cain v. Stute, 20 Tex. 364; Tunstall v. Wormley, 54 Tex. 476, 480.
If, however, the saving clause in section 19 of the act of 1885 was not intended by the legislature to cover the entire ground, and to be a substitute for the general saving statute so far as cases like this are concerned, then the saving clause contained in section 19 of the act of 1885 has no office to perform, but is absolutely worthless, for the general saving clause would save all that it saves and very much more. Such an interpretation of the law as this would violate all proper canons of construction. It would in effect say that the legislature had done the very foolish thing of enacting a saving clause which can have no real operation at all, and can subserve no actual purpose wbatever. “It is a well-settled rule that when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. To hold otherwise would be to impute to the legislature gross carelessness or ignorance, which is altogether inadmissible.” Ellis v. Paige, 18 Mass. 45. To hold, however, that the saving clause in section 19 of the act of 1885 covers the whole ground, and that no prosecutions under original section 7 are saved except such as it saves, gives force and operation to such saving clause, and no other holding would do so. If no saving clause were in existence, no new suit could be commenced under the old law, and all suits pending under the old law would be abated and become extinguished. In re Petty, 22 Kan. 477; Abbott v. Com., 8 Watts, 517; S. C. 34 Amer. Dec. 492; Hartung v. People, 22 N. Y. 95.
The legislature, of course, knew all this, for such is well-settled law. The legislature also knew of the existence of the general saving clause, and knew that it would have saved not only all pending suits for violations of the old law, but also all suits that might subsequently be commenced. And with this knowledge the legislature passed a saving clause of its own. From this it appears that the legislature was not only not satisfied with the old prohibitory liquor law, which it sought to amend, but was also not satisfied with the general saving clause that would have saved all rights and remedies of the state under the old law and continued them in force until all prosecutions could have been had that might have been had under the old law. For this reason the legislature amended the old prohibitory liquor law as it did, and enacted the saving clause as it did, and repealed all things in the old law which it did not expressly save.
The theory upon which it has been held by this court that the gen
eral saving statute is applicable in cases of repeals is that where the repealing statute is silent as to whether the rights and remedies which had previously accrued under the repealed statute should be saved or not, such silence indicates an intention on the part of the legislature that the general saving statute should be left to operate upon the repeal, and to save all such rights and remedies as come within the saving provisions of the general saving statute. See cially the case of State v. Boyle, 10 Kan. 113. In the present case, however, the repealing statute is not silent, for it itself contains a saving clause which shows that it was not the intention of the legislature to rely upon the general saving statute.
For the reasons above stated we think the present action cannot be maintained. The judgment of the court below will therefore be reversed and cause remanded for further proceedings.
(All the justices concurring.)
(34 Kan. 275)
STATE V. KNAUBER.
Filed November 7, 1885.
Appeal from Morris county.
PER CURIAM. The judgment of the court below in this case will be reversed, upon the authority of the case of State v. Showers, ante; 474, just decided.
(34 Kan. 276)
STATE V. WEBSTER.
Filed November 7, 1885.
Appeal from Sumner county.
PER CURIAN. On April 6, 1885, a complaint was filed before a justice of the peace of Sumner county against the defendant, charging him with having violated the prohibitory liquor law of 1881, by selling and bartering intoxicating liquors at various times during the months of January and February, 1885. The defendant filed his motion to quash and dismiss the complaint upon the ground, among others, that it did not state facts sufficient to charge any offense. The
. motion was overruled, and the defendant found guilty on four counts in the complaint. The defendant then appealed to the district court of Sumner county. Trial had at the May term of court for 1885. In the district court the defendant moved to quash the complaint and discharge the defendant. The court sustained the motion. The state excepted and appeals to this court. Within the authority of State y. Showers, ante, 474, just decided, the judgment of the district court must be affirmed.
Filed November 7, 1885.
At chambers. Original proceedings in habeas corpus.
HORTON, C. J. On March 30, 1885, a complaint was filed before a justice of the peace of Anderson county, charging James Gosnell with unlawfully selling, on March 4, 1885, in that county, intoxicating liquors, in violation of the prohibitory liquor law of 1881. Trial was had and the justice found the petitioner guilty, and that the offense alleged in the complaint was committed by him on March 4, 1885. The petitioner then appealed to the district court of Anderson county. Trial had at the September term of court for 1885 before the court with a jury. The jury found that the petitioner was guilty of selling intoxicating liquors on March 4, 1885. A motion in arrest of judgment was filed by the petitioner, which was overruled. Judgment was entered upon the verdict of the jury, and the petitioner was sentenced to be confined in the jail of Anderson county for a period of 30 days, and also to pay the costs of the prosecution, taxed at $39.30, and to be further committed to jail of said county until the costs were paid. The prohibitory law of 1885 (chapter 149, Laws 1885) took effect on March 10, 1885, before the date of the filing of the complaint against the petitioner, and after the date that the petitioner had sold intoxicating liquors. When the legislature amended the prohibitory liquor law of 1881, it repealed that law in all things which it did not expressly save, and in the law of 1885 only pending suits for the violation of the old law were saved. This prosecution was not pending when the law of 1885 went into force and effect.
Within the authority of State v. Showers, ante, 474, the petitioner must be released.
SUPREME COURT OF NEVADA.
(19 Nev. 225)
ALBION CONSOLIDATED Min. Co. v. RICHMOND MIN. Co.
Filed November 9, 1885. 1. MOTION FOR NEW TRIAL-AFFIDAVITS USED ON HEARING OF-INDORSEMENT.
Affidavits used on hearing of motion for new trial, and not indorsed by the judge or clerk “at the time as having been read or referred to on the hearing” of the motion for new trial, will be stricken from the statement on ap
peal. St. 1869, 227, § 197; Dean v. Pritchard, 9 Nev. 232, followed. :-. SAME-STATEMENT OF CAUSE-MAPS, ETC.
Maps and drawings, etc., used to illustrate the evidence of the witnesses, but not put in evidence, need not be copied into the statement of the cause
on appeal. 3. SAME-DOCUMENTARY EVIDENCE-COPYING.
Where deeds and other documentary evidence are introduced to show title, and not objected to at the time as insufficient, such deeds and documentary
evidence need not be copied in full in statement of case on appeal. 4. SAME-PREPONDERANCE OF EVIDENCE-DISCRETION OF JUDGE.
It is in the discretion of a judge, so long as he does not invade the province of the jury, to grant a new trial, where the preponderance of the evidence is against the verdict, and his order will not be disturbed on appeal. Evidence examined, and order of new trial sustained.
Appeal from an order of the Sixth judicial district court, Eureka county, granting plaintiff a new trial. The opinion fully states the facts.
Wren & Cheney, for appellant.
HAWLEY, C. J. On the twenty-first day of October, 1873, E. H. Rose and others commenced an action in the district court of Eureka county against the Richmond Company, (appellant herein,) to determine the right of possession to certain mining ground. A trial of that case in 1881 in the district court resulted in a judgment for the Richmond Company, from which Rose took an appeal to this court. The real controversy in that action depended upon the question of the validity of the Uncle Sam location, owned by Rose and others, and of the St. George and Victoria locations, and patents therefor from the United States, owned by the Richmond Company. This court declared the St. George and Victoria patents to be “absolutely null and void,” and directed the district court to render a proper judgment in favor of Rose and others for the mining ground westerly of the line “A C,” as designated upon the diagram in evidence in that case. Rose v. Richmond Min. Co. of Nevadu, 17 Nev. 25. An appeal was taken from this decision to the supreme court of the United States, and that court, on the fourth of May, 1885, affirmed the decision of this court. Richmond Min. Co. v. Rose, 114 U. S. 576; S. C. 5 Sup. Ct. Rep. 1055.
The present action was brought to recover damages for the value of ore alleged to have been taken by the Richmond Company from the mining ground west of the line A C. The complaint alleges that 9,208 tons of ore were extracted and removed by the Richmond Company, of the value of $65 per ton, amounting to the sum of $598,520. It is further averred that by the working of the mine plaintiff was damaged in the sum of $10,000, making a total of $608,520. The jury before whom this cause was tried found a verdict in fav of plaintiff for $13,250. The plaintiff, being dissatisfied with this verdict, moved the district court for a new trial, which was granted upon two grounds, viz. : “(1) Insufficiency of evidence to justify the verdict. (2) Irregularity of the defendant, by which plaintiff was prevented from having a fair trial.” This appeal is taken by defendant from the order of the district court granting a new trial.
1. The question whether there was any irregularity upon the part of appellant was, upon motion of appellant, eliminated from the case. It was presented upon affidavits which were not indorsed by the judge or clerk “at the time as having been read or referred to on the hearing” of the motion for new trial, (St. 1869, 227, $ 197,) and upon the authority of Dean v. Pritchard, 9 Nev. 232, the affidavits were stricken from the statement on appeal.
2. Appellant contends that the question whether the court erred in granting a new trial upon the ground of insufficiency of the evidence to sustain the verdict cannot be considered, because the statement, notwithstanding the recital therein that “the above and foregoing testimony was all the evidence offered and received in said action,” affirmatively shows that it does not contain all the evidence. This contention is based upon the fact that the statement shows that a glass model of the mining ground was used at the trial in the district court to illustrate the testimony of the witnesses, and that certain maps and diagrams were referred to by the witnesses, which are not made a part of the statement on appeal. It is argued that, without the model, maps, and diagrams, a portion of the testimony will be unintelligible to this court. It does not appear from the statement that the model, maps, or diagrams, or either of them, were offered in evidence, hence they were properly excluded from the record on appeal. Upon the trial of important mining cases it is quite frequently the custom of litigants to exhibit a model of the mine to be used in the court-room, instead of asking for an order to have the jury take a "view of the premises;” the models being constructed in such a manner as to show the various levels, drifts, tunnels, excavations, ore bodies, and such other matters as may be in controversy, and to enable the witnesses to illustrate their testimony by a reference thereto. Before these models came in vogue it was, and if a model is not used it is still, occasionally the practice to allow the jury to view the premises for the purpose of enabling them the better to comprehend the testimony of the witnesses; but the courts have never held that such a view was a part of the evidence in the case which must be included in the statement on appeal. It is allowed for the purpose of enabling