Tappan v. Dayton
Tappan v. Dayton
Opinion of the Court
This appeal is from an order of the Middlesex county orphans count which confirms the sale of land belonging to the estate of Jonathan Dayton, deceased, by the administrators of that estate, to pay debts, at which sale the appellant was the purchaser. Ho-
" That in all counties in this state wherein, at the county seat thereof, there is now published in the German language a paper which has been or may be designated by law to publish the laws of this state, it shall be the duty of the officer having charge of the sale of real estate, to select and publish all advertisements of sales and adjournments thereof, in one such paper.”
The first objection urged is that when the sale in question took place there was a paper in Middlesex county published in the German language, answering the description in the supplement last referred to, in which notice of the sale was advertised in English, not in the German language; the insistment being that because of the publication in English there was a fatal departure from the requirement of the law.
. It is observed that the statutes under which the publication was made have for their object, as indicated in their titles, sales of land under public statute or in virtue of judicial proceedings.
By the seventeenth section of the act respecting amendments and jeofails, passed November 21st, 1794 (Rev. p. 12), all proceedings whatever in every court of law or equity in this state are required to be in the English tongue and language and in no other tongue or language.
The precise question suggested by the objection is, whether the act of 1891, from its requirement that notice of sale shall be advertised in a newspaper published in the German language, so implies that such notice shall be in the German language, as to repeal, pro tanto, the seventeenth section of the statute.respecting amendments and jeofail's. That section has existed upon our statute-book for nearly one hundred years, and during all that time the records of our courts have uniformly been in the English language, intelligible to all persons who speak and read the language of our countiy. "Was it the purpose of the legislature to single out one foreign language and give it a place in our judicial proceedings? In the case of North Baptist Church v. Orange, 25 Vr. 111, the supreme court, in construing a statute which provides that notice of the time and place when and where a proposed ordinance, authorizing a contemplated municipal improvement, will be considered, shall be published in all the newspapers within the municipality, one of which, at the enactment of the law, and continuing thence to the time of the
Without stopping to question the cogency of this reasoning, it is observed that the case so decided, materially differs from the one now under discussion. In it the implication or inference was not combated by an existing statute which defined the policy of our law upon a vitally important subject for almost a century. In the case under discussion, the meaning of the statute of 1891 must be determined in view of such a statute and the policy it establishes. Was it the intention of the legislature that the act of 1891 should be accorded a meaning that would in any particular supersede the law of 1794?
One rule of construction applicable here is stated in Sedgw. Stat. Const. 106, as follows:
“Laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject. And it is, therefore, but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any prior law relating to the same matter, unless the repugnancy between the two is irreconcilable; and hence a repeal by implication is not favored. On the contrary, the courts are hound to uphold the prior law, if the two acts may well subsist together.”
This rule has been repeatedly recognized and applied by our courts. Britton v. Blake, 6 Vr. 208 ; S. C., 7 Vr. 442; State v. Commissioners of Railroad Taxation, 8 Vr. 228; Landis v.
'Another rule, also applicable, is this: Where no repealing words are inserted in the later of two apparently inconsistent statutes, a strong presumption arises that no repeal was intended or it would have been expressed. McNeeley v. Woodruff, 1 Gr. 352, 356; Henry v. City of Camden, 13 Vr. 335; Plum v. Lugar, supra.
The act of 1891 does not contain a repealing clause, and, in face of the rules stated, it appears to me to be impossible to give it the construction contended for. The disfavor of repeals by implication or inference and the presumption against repeal, in absence of a repealing clause, I think outweigh the implication here invoked. The law of 1891 is silent as to the language in which the notice of sale shall be published, and does not forbid publication in English, hence no violence is done it to hold that it contemplates publication in that language. To imply that publication in the German language was intended is not a necessary implication. Holding that the publication is to be in English reasonably reconciles and harmonizes the provisions of both statutes. It may' well be that the legislative intent in the passage of the act of 1891 was to place notices of sales where they would be seen by a notably industrious and saving people, who, although able to read and understand English, prefer habitually to read a paper in their native tongue and look to it for information. The first objection is not sustained.
The next objection rests upon this state of facts: That the sale was advertised for the 10th of February, 1893; that on that day it was adjourned to the 21st of February; that notice of the sale was published in two papers, in one of which, “ The New Brunswick Home News,” it was inserted on the 5th, 12th, 19th and 26th of January and the 2d of February, but not again before the day appointed for the sale, and that the. adjournment of the sale was inserted in the same paper on the 11th and 18 th days of February. The omission to advertise the notice of sale in that paper after the 2d of February is insisted upon as a fatal irregularity. I think that this objection is well taken.
The order appealed from will be reversed, but without costs, 'because the objections here urged were not presented to the ■orphans court.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.