
    The President, Directors, and Company of the Planters Bank of the State of Mississippi vs. The State of Mississippi.
    Where, in a subsequent statute, there is no express repeal of a former one, the former statute will not be considered repealed by implication, unless the repugnancy between the new provision and the former one be plain and unavoidable.
    In the construction of statutes, the intention of the legislature is the cardinal rule of construction.
    In 1843, the legislature passed a general law prescribing the mode of proceeding against banks that had violated their corporate franchises, (Acts of 1843> 52— 57.) In 1843, proceedings in the circuit court were commenced under that act against the Planters Bank. In 1844, the legislature passed another act, in relation specially to the said Planters Bank and the Mississippi Railroad Company, authorizing them, upon certain conditions, to surrender their charters ; and upon their rufusal to do so, making it the duty of attorney-general, and requiring him to proceed by bill in the superior court of chancery against them, have a receiver appointed to take charge of their property, and proceed to have them wound up; the law of 1844, provided that if either of the corporations should accept and comply with the conditions of the act by a voluntary surrender of its charter, then such bank should be released from the operations of the said law of 1843. The Planters Bank did not accept the conditions of the law of 1844 ; and the proceedings already instituted in 1843, under the law of that year, having progressed to judgment in the circuit court against the bank, that court declaring its charter forfeited and appointing trustees under the law of 1843, to collect its debts and take charge of its property, the bank appealed to this court; and the cause was here submitted on a preliminary motion, as to whether the law of 1844 had not repealed the act of 1843, and taken away the jurisdiction of the circuit court: Held, that there was no necessary repugnancy between the two acts, and therefore the latter is not by implication a repeal of the former ; that no proceedings being instituted in the chancery court under the latter act, the circuit court did right to proceed to judgment under the law of 1843.
    On appeal from the circuit court of Adams county ; Hon. G. O. Cage, judge.
    The state of Mississippi, under the act of the legislature of 1843, entitled, “ an act to prescribe the mode of proceeding against incorporated banks for a violation of their corporate franchises, and against persons pretending to exercise corporate privileges, under acts of incorporation, and for other purposes;” instituted proceedings in the circuit court of Adams county against the president, directors, and company of the Planters Bank of the state of Mississippi for an alleged violation of their act of incorporation. These proceedings were instituted on the 17th day of December, 1843.
    On the 23d of February, 1844, the legislature passed an act, entitled, “ an act to place the Planters Bank of the state of Mississippi, and the Mississippi Railroad Company in liquidation, for the payment of the state bonds issued on account of the Planters Bank and for other purposes,” of which the following are substantially the provisions, viz.
    1. The first section provided that the Planters Bank and the Mississippi Railroad Company should be put in a state of liquidation as provided for thereinafter.
    2. The second, that, provided within sixty days after the passage of the act, those banks, or either of them, would surrender their charters to the state, by deed, then the governqr of the state should appoint two commissioners in a mode prescribed to close and wind up the affairs of the corporation in a stipulated way.
    3. The third section provided, that if the bank did, in the prescribed time, surrender its charter, and deliver its property to the commissioners, the attorney should forthwith proceed to file a bill in the superior court of’ chancery for the state, against such recusant bank, in favor of the state of Mississippi, for the use of the bond holders and all the creditors of the bank; such bill to contain proper allegations for a proceeding against such bank to vacate the charter thereof for the forfeiture of their charter; for which end the chancellor should direct issues, &c.
    4. The fourth section made it the duty of the chancellor to proceed to wind np the corporation, for the benefit of the creditors, with power to determine the order of priority, &c.
    5. That after payment of the bonds of the state, issued, on account of the bank, the surplus of the assets of the bank should be divided among the creditors according to their legal rights.
    Sections 6, 7, 8, 9, 10, 11, 12, 13, 14, prescribed the duties, obligations, responsibilities and penalties, imposed upon the commissioners, who should be appointed to take charge of and wind up the bank.
    Sections 15, 16, 17 and 18, gave certain powers to the governor in ordering a special term of the chancery court, if necessary, in the prosecution of the case against the bank; to employ assistant counsel, &c.
    19. This section was in these words: “ Be it further enacted, that upon the corporations, or either of them, accepting of and complying with the provisions of the second section of this act, that they be released as to their acts or omissions, done or committed before the passage of this act, from the operations of an act, entitled, “An act to prescribe the mode of proceeding against incorporated banks, for a violation of their corporate franchises and against persons pretending to exercise corporate privileges under acts of incorporation, and for other purposes.”
    20, 21 and 22, provided for the salary of the commissioners; the penalty for embezzlement, and that the law should take effect from its passage.
    The proceedings in the circuit court progressed to judgment against the bank after the passage of the law of 1844, that judgment having been rendered on the 12th day of June, 1.845. The bank appealed from this judgment, and the cause at the present term of the court was submitted on a preliminary motion as to whether the act of 1844 was not a repeal of the act of 1843, as to the Planters Bank, and had not taken away the jurisdiction of the circuit court under that act of 1843.
    
      Montgomery and Boyd, for motion.
    We make the following suggestions :
    1. The act of 1844 is a special act, in reference to the same subject-matter as the act of 1843, which is a general act. The prior general law as to a whole class, would necessarily be repealed by a subsequent special act as to a part of the same class.
    2. The law will not countenance cumulative penalties.
    3. A subsequent affirmative statute will repeal a prior affirmative one, upon the same subject-matter, where the latter is inconsistent with the former.
    The act of 1844 is inconsistent with the act of 1843 in every articular.
    Under the first, a judgment of forfeiture, destroying the existence of the corporation, is to be pronounced. Upon this, a trustee is appointed by the circuit court, with special powers, not very well defined, and accountable only to creditors.
    Under the record no judgment of forfeiture can be pronounced; but on the ascertainment of a forfeiture, the proceedings are continued as against an insolvent and not a dead corporation. A receiver is appointed, accountable to the chancellor, and with exact and specified duties. This takes place under the compulsory part of the act, but the other part is more inconsistent with the act of 1843, than the compulsory clauses. For, on a voluntary surrender, the whole proceedings are to be regulated by commissioners appointed by the bank and the governor. The inconsistency in either view is apparent.
    4. The 19th section of the act of 1844 was construed by the circuit court to amount to a declaration that the act of 1843 was not to be repealed, unless the bank accepted the act of 1844. This is not the reading or meaning of the section. In it the legislature offer to relieve the bank from the act of 1843, if they will accept of the provisions of the act of 1844; but they do not say that, in case of a refusal, the act of 1843 shall still be in force. On the contrary, if the bank refuse, then it is made the express duty of the attorney-general to proceed against her, not under the act of 1843, but under the act of 1844. Nothing can be plainer. The offer in the section referred to, was intended as an inducement to the bank to accept the act of 1844; but if she declined, then the legislature directed the necessary force to be applied, and left her to get on 'with the act of 1843, in the best way she could.
    We think that even an express clause in the act of 1844, declaring that the act of 1843 should not be repealed, would not prevent the repeal which results from the very nature of the acts themselves. They cannot both be affirmed, on account of their absolute inconsistency, and of course the first must yield.
    The chancellor, Buckner, has decided, that' the act of 1844 did repeal the preceding acts of 1839-40, in relation to the Mississippi Railroad Company. The same principle applies here.
    
      JohnD. Freeman, attorney-general, contra.
    
    The proceedings authorized by the attorney-general in the court of chancery, were doubtless intended as a cumulative remedy to the state in the event that no prosecution was commenced in the circuit court, either at the instance of the district attorney, or of a citizen or private person; or in the event that such proceedings were commenced, and proved unsuccessful. Under the recent decision of this court on the statute of 1843, the circuit court has full power to wind up the concerns of the bank, and the remedy in that court, therefore, is as ample as the one provided by the law of 1844.
    The 19th section of the act of 1844 clearly shows that the intention of the legislature was not to release the bank from the operation of the statute of 1843, except on the conditions therein stated; and inasmuch as such intention is apparent, the rule of law, that a special statute repeals a general statute on the same subject, does not apply here.
    
      
       The substance of this act of 1843 will be found in 4 S. & M. 439 — 442, and also supra, p. 601 — 603.
    
   Mr. Justice Clayton

delivered the opinion of the court.

This is a motion preliminary to the consideration of the merits of this cause. The question submitted upon motion is, whether the act of 1844, passed to place the Planters Bank and the Mississippi Railroad Company in a state of liquidation, repeals the act of 1843, in whole or in part, passed to prescribe the mode of proceeding against incorporated banks.

There is no express repeal. Statutes are not considered to be repealed by implication, unless the repugnancy between the new provision and the former statute be plain and unavoidable. Foster's case, 11 Co. 56; 1 Kent Com. 466. The intention of the legislature in this, as in all other instances, is the cardinal rule of construction.

The intention to repeal is by no means manifest. To a certain point we perceive no necessary repugnancy between the two statutes. If, under the law of 1844, the attorney-general should file a bill on the part of the state, as therein directed, we have no doubt the pendency of such bill might be pleaded in preclusion of any prosecution under the act of 1843, should any such be instituted.' We have as little doubt, that if a proceeding were instituted under the act of 1843, and during its pendency the attorney-general were to file a bill in the chancery court, that the chancery court might, upon application, grant an injunction to stay the proceedings in the circuit court. If the attorney general were to take any steps under the act of 1844, before a judgment rendered upon a proceeding on the part of any one else under the act of 1843, the government would be entitled to a preference, that would justify putting an end to or staying the other proceeding. But if the proceeding be commenced and prosecuted to judgment in the circuit court, without any step in the chancery court to interrupt it, we see no objection to its validity. There is in our view no such repugnancy in the provisions of the two acts, as to make the last necessarily operate a repeal of the other. A judgment under either might be pleaded in bar of any subsequent proceeding in the other court.

The 19th section of the act of 1844 provides, that if the banks therein mentioned should surrender their charters, under the provision of the second section, then they should be exempt from the operation of the act of 1843. This would seem to imply the intention of the legislature, that in any other state of case, they were not to be so exempted.  