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TERM, 1861.] M. O. & R. R. R. R. Co., vs. Mayor, etc. of Camden.

of necessary and proper implication." Nichol vs. Mayor of Nashville, 9 Humph. 261. Also, Memphis and St. Francis Plank Road Company vs. Reeves, 21 Ark., 305.

We have looked attentively through the charter of Camden, and the amendatory acts, and can find nothing, and have been referred to no act that authorizes such a contract as the alleged subscription of stock by the mayor of Camden. The second section of the charter of the plaintiff contains no such authority. For although it declares the company to "be composed of such persons, corporations, states, counties and cities as may subscribe to stock in said company, and comply" with the provisions of the charter and regulations adopted under it, no authority is thereby given to cities to make other contracts than they could make without the charter. We therefore adopt the language which the Supreme Court of Alabama used in a case much stronger against the city council of Montgomery, than this one is against the corporation of Camden: "Looking into the charter of the city of Montgomery, and its amendment, we find no express authority to enter into the contract declared; neither is the exercise of such power necessary to carry into effect any of the expressly granted powers; nor was the exercise of the power under consideration a necessary means of effecting the purpose for which this corporation was created." City Council of Montgomery vs. Montgomery and Wetumpka Plank Road Co., 31 Ala. 83. The law restricting the power of corporations is of such an elementary character, and so generally understood that this is the first case of which we are informed, where such a contract as the one charged in this case has been the subject of decision in an appellate court. A writer under the date of August, 1857, affirms that no such case has been the subject of judicial examination, and we have not been able to find any since reported. The same writer, treating of the validity of subscriptions to railroad stock by cities and municipal corporations generally, says that "Their competency, by virtue of their ordinary powers, and without special

State use Higginbotham's ad. vs. Watts et al.

[JANUARY

legislative authority to contribute to such enterprises, cannot be sustained." Pierce on Am. Railroad Law, 168.

On the other hand, it has been strongly contested that such subscriptions cannot be authorized or confirmed by legislative authority and sanction. The affirmative of this has been fully established, by a series of able decisions, but in Godden vs. Crump, 8 Leigh, 150; Slack vs. Maysville & Lexington Railroad Company, 13 B. M., 39; Shurpless vs. Mayor of Philadelphia, 21 Penn. State Rep. 188; Moses vs. Reading, ib. 203, which we have examined, there were dissenting opinions, and the same is reported of Griffith vs. Ohio & Ind. R. R. Co., 20 Ohio 622; which we have not seen. 2 Am. Railroad Cases,64. Great efforts have been obliged to be made to uphold subscriptions of cities to the capital stock of railroads, even when authorized or ratified by legislative authority, and that in many instances supported by a popular vote; but the parties to this suit seem to be the first to have made a contest upon unauthorized subscriptions of this sort.

We affirm the judgment of the Circuit Court in sustaining the demurrer.

23 304

STATE USE HIGGINBOTHAM'S AD. VS. WATTS ET AL.

60 130 It is a rule, in the construction of statutes, that an existing statute shall not be repealed by a subsequent enactment, unless the repeal be expressed in words of revocation, or unless there is such a manifest repugnance between the statutes that

TEEM, 1861.]

State use Higginbotham's ad. vs. Watts et al.

both cannot be in force: and also, that all statutes upon the same subject matter shall be so construed that all shall continue in force, if that construction is possible.

There is no such repugnance between the 7th section, of chapter 120, Rev. Stat., [sec. 8, ch. 6, Gould's Dig.] and the act of 18th December, 1840, subsequently passed, as to require the court to hold, under the principles governing the construction of statutes, that the former was repealed by the latter.

The court conclude, with much hesitation that, notwithstanding the execution of a special administration bond in each estate taken by the public administrator, the "sheriff and his securities shall be responsible on his official bond, for misconduct in discharging his duties as public administrator."

The office of public administrator continues with the person to whom it was committed, unless a regular administrator be appointed, and the responsibility of the securities in the bond existing when the possession of the estate was taken, continues until the public administrator shall be discharged, whether he be reelected and give a new bond, or another person be elected sheriff.

The authority of the Probate Court to make an order requiring the sheriff to take charge of the estate of a deceased person, is not to be questioned: nor need such order state the reason that moved the court to make it.

If the breach in a declaration upon the official bond of the sheriff, as public administrator, charge that he did not deliver bonds, choses in action and assets, belonging to the estate, and in his hand, to his successor, it is sufficient such successor is not an administrator de bonis non.

Appeal from Dallas Circuit Court.

Hon. JOHN C. MURRAY, Circuit Judge.

HUTCHINSON for appellant.

GALLAGHER, for appellee.

Mr. Justice FAIRCHILD delivered the opinion of the Court. At the January term, 1852, of the Probate Court of Dallas county, Hillory M. Bouldin, sheriff of the county, was ordered by the court to take possession of the goods and effects of Sanford Higginbotham, dec'd, and as public administrator to administer the estate with the will annexed. In accordance therewith Bouldin proceeded with the administration of the estate, which amounted, according to the averment of the declaration,

State use Higginbotham's ad. vs. Watts et al.

JANUARY

to nearly sixteen thousand dollars, until at the January term, 1855, his authority to act was annulled by the Probate Court. At the same time Bouldin was found to be in arrear to the estate in a sum which he was ordered to pay to his successor in the administration, and for his failure to comply with the order, this suit was brought against two of his securities upon the official bond that was in force when, under the direction of the court, he began the administration of the estate. This bond was given in October, 1850, and was a common sheriff's official bond to secure the performance of the duties of the office by Bouldin for two years, or for the term of office as prescribed by law.

On the 15th of January, 1852, Bouldin executed a bond for the faithful performance of the administration of the estate, according to the will annexed of the deceased, and according to law, which bond was given under the 3d section, of chap. 6, of English's Digest, and the third plea of the defendants raises the question, that the acceptance of this bond by the court superseded all subsequent recourse upon the bond sued on, the ordinary bond given by Bouldin, for the proper exercise of his duties as sheriff of Dallas county.

The arguments upon both sides of the question strongly commend themselves to our consideration. The point is an important one, and can be decided only upon view of the course of legislation upon the subject, and of the legal inferences that should be drawn from the legislation.

By the first code of our state law it was enacted as follows: "SEC. 7. Every sheriff and his securities, shall be responsible, "on his official bond, for misconduct in discharging his duties of "public administrator."

"SEC. 8. When any estate shall amount to three thousand dol"lars and upwards, the Probate Court shall require the public "administrator to give security as in other cases of administra"tion. Rev. Stat. 649."

The law stood thus only till the next session of the General Assembly, when the act of 18th December, 1840, repealed the

TERM, 1861.]

State use Higginbotham's ad. vs. Watts et al.

eigthth section above quoted, and enacted that when any property should come into the hands of a public administrator, he should enter into such bond and security as should by the existing law be required in ordinary administrations. Acts of 3d session, 39. From this repealing act it is to be noticed that the attention of the General Assembly was specially directed to ch. 120, of the Rev. Statutes, that the 8th section was repealed by express enactment, that the 7th section was not mentioned, and was thus left in full force unless it was repealed by implication.

It is a cardinal principal of statutory construction that an existing statute shall not be repealed by a subsequent enactment, unless the repeal be expressed in words of revocation, or unless there is such a manifest repugnance between the statutes that both cannot be in force. Sedgwick on Statutory and Constitutional Law, 121, 123, 126; Smith's Comm. S. 760; Hamilton vs. Buxton, 1 Eng. 27.

To make a shapely system out of the two sections of the Revised Statutes, it would seem fair to infer the intention of the legislature to have been that the public administration of estates less in value than three thousand dollars, should be secured by the official bond of the sheriff, while the particular bond required in all other cases should be the security for the administration of the estate in which it was given. Whence it would also follow, since the act of 1840, that the public administration of every estate would be secured by its individual bond. This would conform to the rule of construction that discourages the liability of a security to be extended beyond its terms.

And an additional reason for this construction is afforded by the causes and occasions of each of the two bonds of Bouldin under consideration; one relating to his election to the office of sheriff, and providing for the performance of its common ministerial duties, being only for ten thousand dollars, less than the assets of the estate of Higginbotham, and covering many matters, all of which are entirely distinct from the administra

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