
    William H. Dodge v. John Gridley.
    The limitation in the estray act, which restrains the operation of town ordinances to animals owned by the citizens of the town, applies to town charters granted after the passage of the estray act.
    Two statutes in pari materia shall stand together, and both have effect if possible, for the law does not favor repeals by implication.
    This is a writ of error to the common pleas of the county of Washington.
    The original suit was an action of trespass for taking the plaintiff’s hogs.
    The defendant justifies under the authority of a by-law of the town of Harmar, by which swine running at large are to be taken up impounded and sold, if not redeemed by the owner within five days.
    The plaintiff, in his replication, avers that he was not a resident or citizen of the town of Harmar; and so seeks to avoid the justification under the act regulating estrays.
    The court of common pleas held the replication insufficient, and gave judgment for the defendant, to reverse which this writ of error is brought.
    The charter of the town of Harmar? 35 Ohio L. 323, sec. 4, 1837, enacts:
    *“ That the said town council shall have full power and au- [174 thority to prevent any description of animals from running at large in the streets, lanes, alleys, and commpns within the town, if, in their opinion, the interest, convenience, or safety of the inhabitants shall require such prohibition.”
    It is not doubted that the by-law of the town of Harmar is authorized by this provision of the charter.
    
      The act of 1831, regulating estrays, 29 Ohio L. 471, sec. 17) declares:
    
      “ That nothing in the act to provide for the incorporation of towns, and nothing in any special act for the incorporation of any town .or village in this state, shall be so construed as to authorize the making of any by-laws or ordinances, or to enforce the same, of any town or village, which shall subject any animals, the property of any person not residing within the limits of such town or village, to be taken up and dealt with in any other manner than is provided for in this act.”
    The by-law of the town of Harmar does subject such animals to be taken up and dealt with in another manner than is provided for in this act; 'and the question is :
    Does the charter of 1837, in this respect, repeal the estray act of 1831?
    Mr. Vinton, for the plaintiff:
    That the language of the charter is broa'd enough to confer on the town council of Harmar power to malee this by-law, will not be denied' on the part of the plaintiff. Two questions then remain :
    I. Was it the intention of the legislature, in the act of 1837, to repeal the act of 1831 ? If not:
    II. Can the two acts, by'any known rules óf interpretation, be made to stand together.
    The intention of the legislature may be drawn from prior statutes on the same subject. In 1819, the town of Gallipolis, under a charter similar to that of Harmar, undertook to prevent animals, both of the citizens and of those who were not citizens, 175] from running at large within the limits of the ’•'corporation. This gave rise to a town and country party, and the election of a representative to the legislature from that county, in the year 1819, turned on that point. The town party was defeated; and at the next session of the legislature the exercise of all such power was prohibited by a special amendment of the estray act. 2 Chase’s L. 1181. In the revision of the estray act in 1824 (2 Chase’s D. 1410) and in 1831 (29 Ohio L. 476), the same prohibition, verbatim, was re-enacted; and so the law stood when this suit arose under the by-law of the town of Harmar.
    Thus it is manifest that for a long series of years, the prohibition of the power now claimed to be exercised by the town of Harmar has been regarded by the legislature as a matter of public policy, and from the absence of any direct reference to the act of 1831, the inference fairly arises that the legislature, in 1837, did not intend to change this policy, and so, by implication, repeal the act of 1831.
    Can the two laws then stand together? It is a rule, that private statutes, made for the accommodation of private citizens or corporations, ought not to be construed to affect the rights or privileges of others, unless such construction results from express words, or from necessary implication. Coolidge v. Williams, 4 Mass. 140; Wales v. Stetson, 2 Mass. 143.
    Repeals by implication are things disfavored by the law, and never allowed of but where inconsistency and repugnancy are plain and unavoidable, for these repeals carry along with them a tacit reflection upon the legislators, that they should ignorantly, and without knowing it, make one act repugnant to and inconsistent with another. 19 Vin. Ab. 525 : Warder v. Arell 2 Wash, 381.
    The principle laid down in McCarter v. Orphan Asylum Society, 9 Cow. 437, seems decisive of the present case. In New York a devise to a corporation is declared void by the statute of wills. A charter subsequently incorporating the orphan asylum gave them a right to purchase real estate. The court held that the two statutes ought to be construed together, and that the word purchase should be understood in a ^restricted .sense, and as so intended by [176 the legislature. Thus, the statute of wills had full operation, and the term purchase was confined to such qiodes of acquiring real estate as do not include a devise. The legislature was considered as granting to the asylum a right to purchase subject to other existing statutes, and as not conferring a right to purchase without restraint.
    The application of this principle to the present case subjects all animals to the restraints of the town ordinance whose owners live in Harmar, while all other animals are left to go at large under the protection of the estray act.
    •Goddard and Converse, for the defendant:
    The case of Marietta v. Fearing, 4 Ohio, 427, bears a closer resemblance to the one now under consideration than.any of those cited against us. It was there held that the estray act restricted the operation of an ordinance of the town of Marietta forbidding animals running at large, to those owned by its own citizens. But, between that case and this, there are three essential points of difference:
    1. The charter gave the town of Marietta no power to restrain animals except so far as might be derived from the general authority to pass ordinances for the interest, safety, comfort, and convenience of its citizens.
    The town of Harmar has “full power and authority” to pass laws “ to prevent any description of animals from running at large in the streets,” etc.
    2. The estray act relied upon' to defeat the ordinance in the Marietta case was passed after the act of incorporation, and the court, page 432, held that it repealed the charter pro tanto.
    
    The estray act, relied on by the plaintiff, was passed before the act incorporating the town of Harmar.
    3. When the case of Marietta v. Fearing was decided, there was a public law in force prohibiting such interpretation of town, charters as would authorize the taking up stray animals in any 177] other manner than that pointed out in the estray *act; thus indicating, at least, the public policy of the state.
    Now there is no such law in force. It was repealed last winter. 38 Local L. 131.
    We think the counsel for the plaintiff mistakes the fact, when he says the charter of Gallipolis is similar to that of Harmar. It is similar to that of Marietta, which gives a general power to pass ordinances “necessary and proper for the interest, comfort, safety, and convenience of the town and its inhabitants.” 6 Ohio L. 12; 16 Ohio L. 80. We think this distinction very material-The estray act declares that the statutes therein named shall not be so construed as to authorize the making of by-laws forbidding animals to run at large. It is believed that no statute named in the estray act gave, in terms, the powers so prohibited. Such powers were perhaps inferable, the result of construction, but in the Harmar charter the power is expressly given, to make an ordinance forbidding animals to run at large within the limits of that com poration. In other words, the charter of the town of Harmar, in express terms, gives power to do what the estray act says shall not be done. The rule for the interpretation of statutes then applies : That which comes last shall repeal what went before.
    
      Mr. A. Nye, on the same side, cited Marietta v. Fearing, 4 Ohio, 431; Cuddon v. Eastwick, 1 Salk. 153; Moore v. Vance, 1 Ohio, 10; 2 Barn & Adol. 818; S. C., 22 Eng. Com. Law, 190.
   Lane, C. J.

In 1831, the case of the town of Marietta v. Fearing, 4 Ohio, 431, was decided in this court, in which it was held, that, since towns are public corporations, the provision in the estray act restrains the operation of their ordinances forbidding animals running at large to those owned by the citizens.

The defendant attempts to place this case on a different footing, because the charter of the town of Harmar, being dated ■ subsequently to the estray act, he infers it works a repeal of the latter, so far as it extends to that town.

^Repeals by implication are not favored. "Wnere two [178 affirmative statutes exist, one is not to be construed to repeal the other by implication, unless they can be reconciled by no mode of interpretation. If they admit of being applied to different subjects, there is no necessity of supposing an implied repeal. There are many cases illustrative of this principle; especially that reported in 9 Cowen, 437, 506. The statute of wills, in New York, prohibits a devise to a corporation. A subsequent act incorporating the Orphan Asylum Society declares that they may purchase real estate. The court held, that the statute of wills was not repealed by the act of incorporation; for although the word purchase, in its most extensive signification includes a devise, yet inasmuch as the right claimed is, by the statute of wills, expressly denied, it would seem to be more congenial to the spirit of both acts, so understand the word purchase in a restricted sense, and as so intended by the legislature.

We feel this to be an analogous case; and that it was not intended by the legislature to give the corporation of Harmar extraordinary corporate powers, since their authority over animals, as expressed by their act of incorporation, well admits being limited to their own citizens.

This whole difficulty is now removed by the act of last winter, by which the restriction upon town corporations is omitted; and no reasons appear why town ordinances now in force do not extend to all animals at large, as well those of non-residents as of citizens.

Judgment reversed.  