
    COMMONWEALTH EX. REL. TOLES VS. NAVLE.
    The Act of June 1, 1883, P. L. 54 does not apply to boroughs holding elections under special laws.
    A general statute without negative words does not repeal a particular statute inconsistent therewith.
    Error to Common Pleas of Tioga County. No. 52 July Term, 1884.
    This was an action of quo warranto in the name of the Commonwealth against George W. Navle and Andrew G. Sturrock, to inquire by what right they held the office of Town Councilmen for the Borough of Wellsborough, and the suggestion was that by the Act of 23 Jan., 1873, P. L. 98, it was enacted by section 3rd, that at the next annual election for the borough officers, in the said Borough of Wellsborough, three persons shall be elected to serve as Borough Council and three of the present Council shall retire from the board, to wit: the two who were elected at the January election of 1871, and one of the four as may be determined by law, or otherwise, who was chosen at the election of 1872 ; and that, hereafter, the Council of said borough shall consist of six persons, three of whom shall be elected annually to serve for the period of two years. That under the provisions of said Act, at an election held in and for said borough inEeb:, 1883, George W. Navle, Andrew G. Sturrock and Erank A. Beans were elected Councilmen for said borough. That by the Act of the General Assembly, 1st June, 1883, P. L. 54, it was enacted section 1st, that section 17 of an act entitled “An Act regulating boroughs,” approved April 3rd, 1851, which is as follows: “That it shall be lawful for the borough electors annually to elect the corporate officers designated in the charter or by this Act;” be, and the same is hereby repealed, in so far as the same relates to the annual election of members of Town Conucil. Section 2nd. That it shall be lawful for the qualified electors, in the boroughs of the Commonwealth of Pennsylvania not now enjoying this right, by special statute, at the first election of borough officers next ensuing, the passage of this act to elect one-third the whole number of Councilmen to serve for one year, one-third to serve for two years, and one-third to serve for three years, and annually thereafter to elect the whole number to serve for three years. That at an election held in and for the said Borough of Wellsborough,. in Eeb., ’84, Charles Toles and Edward C. Dickenson were elected to the offices of Town Councilmen, in and for said Borough of Wellsborough for a term of office, which began on the first Monday of March, ’84, under the Act of June 1st, ’83, and they respectively qualified for the performance of the duties of said offices by subscribing to the oath required by law. That George W. Navle and Andrew G. Sturrock continued to exercise the rights and privileges of Town Councilmen.
    The defendants admitted the facts in the first four paragraphs, and denied what is set forth in the fifth paragraph and demurred to the bill. On March 17, 1884, the Court sustained the demurrer and refused to issue the writ of quo warranto in the following opinion per :
    Williams, P. J.
    But one question is presented in this record or has been discussed by counsel. It is: Does the Act of 1883, P. L. 54, repeal' local laws regulating the number and the manner of the election of the Town Council for the Borough of Wellsborough ?
    Wellsboro was incorporated by virtue of a special law passed for that purpose on the 16th March, 1830. The number of the Town Council was fixed by this Act at four, two of whom were to be elected annually. On the 21st of May, 1852, by decree of the Court of Quarter Sessions, the Borough of Wellsborough became subject to the general borough law of 1851, except as to the number and manner of election of the Town Council which were to remain as fixed by its charter. The next Act which refers in terms to this subject is the Act of 1873, section 3, P. L. 98, by which the number of the Town Council is changed to six and provision made for the election of three annually to serve for the period of two. years.
    Such was the situation when the Act of June 1, 1883, P. L. 54 was passed. The relators claim to be members of the Town Council if the Act of 1883 operates to repeal the special local laws passed for the Borough of Wellsborough regulating the election of Town Council. They admit that they are not entitled to seats if the local system is unaffected by that AcC. What are the provisions of tlie Act o.f 1883 ?' Section 1 repeals in express words that part of section 17 of the Act of 1851 which provides for the election of .Town Council annually.
    Section 2 provides for the election of Councilmen for three years, one-third of the whole number annually, except when the number is five, in which case two are to be elected one year and three the next, and the term to be two years.
    Section 3 provides for the cases of boroughs “which have an even number of Councilmen not divisible by, three,” by fixing the term of office at two years and providing for the election of one-half the whole number annually..
    Section 4 provides that Town'Councils shall have power to fill vacancies in their number by appointment until the next annual election.
    This act is general, is an amendment of our system of general borough laws, and unquestionably affects all boroughs incorporated and electing officers under the general law of which this Act is now a part. Does it also affect the peculiar local system of Wellsboro by repealing the Act of 1830 and its supplement of 1873 so far as they relate to this subject ? To this question, we reply, 1st, that the Act of 1883 does not profess to repeal these local laws. It does profess to repeal the 17th section of the Act of 1851, and does it in the most unmistakable manner. The attention of the Legislature was upon the subject of the effect of the law they were about to pass upon existing legislation ; and under such circumstances the explicit expression of their intent to repeal section 17 of the Act of 1851 would seem very clearly to justify the application of the maxim “expressio unius exclusio alterius.”
    2d. Eepeals by implication are not favored and ought not to be asserted except the intention to repeal very clearly appears; Brown vs. County, 9 Harris 43; Edwards vs. Dauphin, 2 Pearson 35; Kilgore vs. Commonwealth, 13 Norris 495; Rhein Building Ass. vs. Lea, 100 Pa. 210. These cases merely assert the elementary rule held for centuries; 1 Bl. Com. p. 90, and notes. Our question is then narrowed down to an inquiry whether an intention to repeal existing local systems is clearly apparent upon the face of this statute, independently of its repealing section. We think it is not, because (a) the Borough of Wellsboro was at no time under the old law, or involved in the mischief which resulted from it. That mischief was the annual election, of all the members of the Town Council, and the consequent inconvenience of the introduction of new and inexperienced men into the management of municipal affairs. Wellsboro had foreseen this inconvenience and guarded against it by a provision in its charter adapted to its situation and needs which provided for the election of Councilmen for two years, one-half of the whole number being elected each year. The provision has never been changed. (b) The contrary holding would not only repeal the local system of Wellsboro, but would unseat three members of the Town Council who have yet one year to serve. Nad the Legislature intended so radical a result as the overturning of all local systems and the unseating of municipal officers, it seems incredible that while their attention was upon the subject of the consequences to result from their action they should have left their intent in so important a regard to be groped after by the application of rules of interpretation, (e) The intent ought not to be inferred from one part of the statute detached from its connection. The statute is to be construed as a whole. Section 1 repeals part of the general system. Section 2 supplies the part removed. Sections 3 and 4 adopt the new provision to cases where Councils are elected annually under the general law but consist of different numbers. This method of construction ex vissceribus, gives to every part of this statute its natural and logical province. (d) The general words in sections 2d are therefore to be construed in connection with the other parts of the statute and not separately. If the intent insisted on cannot be made to appear without resort to the expedient of the separate exposition of the separate parts of the statute and the disregard of the harmonious relation' .of those parts to each other and a common purpose, it does not exist.
    From what has been said it will be apparent that the conclusion is that the local system of Wellsborough is not affected by the Act of 1883, and that the relators’ title to seats in the Town Council must fall with the exposition of Act of 1883 on which it rests.
    
      The rule to show cause why writ of quo warranto shall not issue is therefore discharged..
    The relators then took a writ of error, complaining of the refusal of the Court to grant the writ as prayed for.
    
      Messrs. Deane, Niles, and Merrick, Esqs., for relators
    argued: That an act of June 1st, 1883, P. L. 54 repealed the special Act of Jan. 23, 1873. Officers created by legislation, are within legislative control, and incumbents may be legislated out of office; Commonwealth vs. McCombs, 56 Penna. 436; Blake vs. Commonwealth, 5 W. N. C. 48. A subsequent affirmative statute, revising the subject matter of the former one repeals the same, where their terms are repugnant; 22 English Common Law reports 344; 1st Kent’s Com. 461; 1st. Blackstone’s Com., 62; 5th. Hill, 22; Gwinner vs. Railroad, 55 Penna. 126; Johnstons Estate, 33 Penna. 511; Commonwealth vs. Cromley, 1 Ash. 179; Shinn vs. Commonwealth, 3 Grant 205; Nusser vs. Commonwealth, 25 Penna. 126; Building Association vs. Commonwealth, 2 Out. 54; Keller vs. Commonwealth, 71 Penna. 413; Adleman vs. Steele, 13 Phila. 529. The cases relied upon by the Court below, viz: Brown vs. Commissioners, 21 Penna. 37; Edwards vs. Dauphin Co., 2 Pearson 35; Kilgore vs. Commonwealth, 94 Penna. 495; Building Association, vs. Lea, 100 Pa. 210; are all cases, where there was.no inconsistency between the two acts, and of course the latter act did not repeal the former.
    
      Messrs. Elliot and Watrons, contra; cited Bounty Accounts, 70 Pa. 97; Commonwealth vs. Erie R. R. Co., 97 Pa. 133; City of Harrisburg vs. Scheck, 14 W. N. C. 280.
   The Supreme Court affirmed the decision of the Court below, on May 26, 1884, in the following opinion:

Per Curiam.

The opinion of the learned judge, in refusing the writ of quo> warranto contains a clear statement of the law, applicable to the case, and justifies the conclusion at which he arrived.

Judgment affirmed.  