decided: May 14, 1888.
CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY
APPEAL FROM THE COURT OF CLAIMS.
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MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.
The deductions from the compensation claimed by the railway company for its failure to make the trips required, that is, to render the service stipulated, of which it complains, were made by the Postmaster General under § 3962 of the Revised Statutes, which is as follows:
"The Postmaster General may make deductions from the pay of contractors, for failures to perform service according to contract, and impose fines upon them for other delinquencies. He may deduct the price of the trip in all cases where the trip is not performed; and not exceeding three times the price if the failure be occasioned by the fault of the contractor or carrier." This section in terms applies to all contractors, and, standing alone, there would not be any serious contention against the authority of the Postmaster General to make the
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deductions complained of. It is not pretended that the amounts exceeded those mentioned in the section. It is, however, insisted that the section, so far as applicable to railroad companies, was repealed by § 5 of the act of March 3, 1879, making appropriations for the service of the Post-Office Department for the fiscal year ending June 30, 1880, which provides:
"SEC. 5. That the Postmaster General shall deduct from the pay of the railroad companies, for every failure to deliver a mail within its schedule time, not less than one-half of the price of the trip, and where the trip is not performed, not less than the price of one trip, and not exceeding, in either case, the price of three trips: Provided, however, That if the failure is caused by a connecting road, then only the connecting road shall be fined. And where such failure is caused by unavoidable casualty, the Postmaster General, in his discretion, may remit the fine. And he may make deductions and impose fines for other delinquencies." 20 Stat. c. 180, 355, 358.
This latter section was repealed on the 11th of June, 1880 (21 Stat. c. 206, 177, 178); and § 12 of the Revised Statutes provides that the repeal of a repealing statute shall not revive the original act. It is, therefore, contended that there was no statute in force which authorized the deductions at the time they were made between the autumn of 1880 and the spring of 1883, during which period the alleged failures in the mail transportation occurred.
There is a brief and conclusive answer to this contention. Section 3962 of the Revised Statutes is not repealed by § 5 of the act of 1879.Section 3962 authorizes a deduction from the pay of contractors, whether they be natural persons or corporations, the price of the trip in all cases where the trip is not performed, and not exceeding three times the price if the failure be caused by the fault of the contractor or carrier. Section 5 of the act of 1879 applies only to railroad companies, and has special reference to failures of delivery within schedule time, and makes a difference between them and failures to make the trips, leaving the provision for the latter substantially
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as it is in the Revised Statutes. When there are two acts or provisions of law relating to the same subject, effect is to be given to both, if that be practicable. If the two are repugnant, the latter will operate as a repeal of the former to the extent of the repugnancy. But the second act will not operate as such repeal merely because it may repeat some of the provisions of the first one, and omit others, or add new provisions. In such cases the later act will operate as a repeal only where it plainly appears that it was intended as a substitute for the first act. As Mr. Justice Story says, it "may be merely affirmative, or cumulative, or auxiliary." Wood v. United States, 16 Pet. 342, 363.
The most that can be said of § 5 of the act of 1879, construed with reference to § 3962 of the Revised Statutes, is that it makes an exception to the provisions of that section, so far as railway companies are concerned. Its repeal, therefore, leaves the original section in full force. The repeal was before the failures occurred for which the deductions complained of were made.
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