
    Hummer v. Hummer.
    The Legislative act of January 19, 1839, confers jurisdiction upon the district court over the property and persons of insane persons, and similar powers are conferred upon the probate courts, by the act of January 34,
    . 1841 ; held that the jurisdiction of these courts is rendered concurrent. Whore two statutes, passed at different terms in relation to the same subject matter, the subsequent act does not repeal the former, if both can be made to harmonize.
    The jurisdiction of a Superior Court, can only be taken away by express words of repeal, or irresistable implication.
    Error to Lee Distnriei Covnrt.
    
   Opinion by

Williams, C. J.

This case was presented to the district court of Lee County, at Keokuk, at January term, 1851, upon the relation of Emeline Hummer wife of Michael Hummer. The necessary process was issued, and upon hearing had, the jury found Michael Hummer to be insane. Judgment was accordingly entered and guardians were appointed to take charge of the person and estate of the said Michael Hummer. The case has been brought to this court by writ of error.

The only question for decision here is, as to the jurisdiction of the district court. The legislature of Iowa, by the act entitled “ an act concerning insane persons,” approved January 19,1839, expressly gives jurisdiction of the matter to the district court.

It enacts, that “ when any district court in this territory shall receive satisfactory information that any person in their respective counties having property, is or has become insane, it shall be the duty of said court to direct the sheriff of the county to summon twelve intelligent and disinterested men of the county,” &c. It then proceeds to prescribe the mode of proceeding ; and'upon the finding of the jury, that the person is insane, directs that the court shall appoint three suitable persons as guardians, to take charge of the person and estate of such insane person, &c. An act was also passed by the legislature and approved January 24, 1841, which provides, “ that the several probate courts in their respective counties in the territory, shall have power to appoint guardians to take care, custody and management of all insane persons, who are incapable of conducting their own affairs, and their estates, real and personal,” &c. It then jiroeeeds to make provision for the information, mode of procedure, to judgment, the payment of costs, the appointment of one person to take charge of the person and estate of such insane person ; and it provides, that the guardian shall file bond for the faithful performance of his duties ; that he shall, when requested, render an account of his guardianship, &c., &c. The latter act prescribes the duties of the guardian in detail, in order to the full discharge of his trust.

The 29th section of the act, provides “ that all acts and parts of acts contravening the provisions-of this act, be and the same are hereby repealed.

It is contended by the counsel of Michael Hummer, who resists this application and seeks to set the judgment of the district court aside, that this latter act, actually and constructively repeals tbe act of January 19, 1889.

The power to act in cases of lunacy or persons non compos mentis, is given to both courts. The first in express terms empowers the district court to act: and tbe latter imparts the like power to the probate court. Then do tbe enactments conflict ? Are they materially inconsistent or repugnant ? Or does the latter repeal the former ?

After a careful examination of these questions, in view of the several acts, and by tbe rules of tbe law, which test the matters involved, we answer in the negative. By the several acts, each of tbe courts is authorised to act in protection of tbe persons and estates of insane persons. Tbe power imparted to each, is the same. Tbe first enactment provides, that tbe district court shall appoint three suitable persons as guardians of the person and estate of tbe insane person. The last enactment provides for the appointment of but one guardian. Tbe. district court is not required in express terms to take bond from the guardians for tbe faithful performance of their duty. By the latter act, such bond is required of tbe guardian. In tbe act conferring jurisdiction on the probate court, the mode of procedure is more particularly prescribed than in the other; but as to this, that procedure is substantially the same as that which is practiced by the district court, in such case, in accordance with tbe rules of that court. In matter of substance tbe acts are not inconsistent with each other, nor are they repugnant in their provisions. Tbe rights and interests of the subject of tbe law, and those concerned, are guarded, protected, and enforced, by the provisions of either act. There can be no doubt that if two enactments, on the same subject, materially conflict, so as to be irreconcilable in their terms, and repugnant to each other, it becomes the duty of a court of law to decide upon sirch a case, being properly presented, which shall be in force. In such case the enactment of most recent date, will supercede the older one. But such is not this case. The case of Laughton v. Wallace 9 New Hamp. R. 59, and the other cases, relied on by the counsel for Hummer, are of that class, which establish the doctrine that “ where the design to revise a statute clearly appears, the former are to be considered as no longer in force, though not expressly repealed.” The principle inculcated by these authorities is sound, and we recognize it as such ; but we do not think that the design to revise and repeal the former statute “clearly appears.”

Courts of law will if possible so construe statutes, as to give them effect, where they relate to the same subject matter. It is also a rule well established, that repeals by implication of law are not to be favored Goddard v. Boston, 24 Pick. 299; Lake v. Brookline, 20 Pick. 407; Haynes v. Jenks, 2 Pick. R. 172. And also that “ two affirmative statutes being on the sanie subject, the latter does not repeal the former if both may consist together;” 4 Gilman 221; 9. Cow. R. 437. “ Both must stand together if possible.”

The district.court in this state, possesses the jurisdiction which is conferred upon those courts which are designated as superior. It has been decided that the jurisdiction of such courts can only be taken away by express words of repeal, or wresistible implication; 8 Pick. 453; 1, U. S. Dig. § 630, and cases referred to. If the principle contended for by the counsel for the defendant, in this proceeding were to prevail, it would fully controvert the doctrine established by this court in reference to the jurisdiction of the district court, and of justices of the peace where the sum in controversy is less than one hundred dollars. By the justice’s act, jurisdiction of cases where the sum in controversy does not exceed one hundred-dollars, is expressly and in direct terms given to the justice of the peace. By previous law, the district court is vested,.with jurisdiction in general terms, without a minimum limit. On the question of the jurisdiction of the district court, as to any sum under one hundred dollars, this court decided that thé jurisdiction of these two courts, in cases where the amount in controversy is under one hundred dollars is concurrent.

J. C. Hall, for plaintiff in error.

E. P. Lowe, for defendant.

The act of January 14,1841, concerning insane persons, does not expressly repeal the previous enactments on the same subject, approved January 19, 1839. It only repeals so much thereof as may be deemed as “ contravening ” the provisions of that act.

It is contended that inconvenience will be experienced, if both acts are to be considered in force, from a conflict of jurisdiction. That both courts may be called upon to exercise jurisdiction in the same case by different persons claiming the right to give information, and requiring the interposition of the law, in case of an insane person. This could not be ; for a proceeding having been commenced in either court, and jurisdiction of the case having been thereby assumed, in accordance with the law, the other would be legally precluded from taking cognizance of it.

This principal of jurisdictional procedure has long since been promulged, and is well established.

As there is nothing in the first act, which contravenes the provisions of the latter, so as to render them repugnant, as to the exercise of jurisdiction of the subject matter by the district and probate courts; and as the act of January 14, 1841, by its 29th section only repeals all acts and parts of acts “ contravening ” its provisions, it is the opinion of the court that, as the law now stands, in virtue of these two enactments, the jurisdiction of the district and probate courts is concurrent.

Judgment affirmed.  