Clark, et al vs. Bates, et al.
as originally enacted, without deciding what effect subsequent legislation, and the general course of events, has had in restricting its applicability. (See Genl. Orders No. 98, War Dept., Oct. 13, 1873.) Assuming our construction of section 1, of the Act of June 30th, 1834, to be correct, we have next to inquire whether any subsequent legislation, or anything else, has had the effect to render it lawful to have and deal in spirituous liquors at the place in question.
We are not aware of the existence of any statute that in terms exempts any portion of the territory west of the Mississippi, originally defined as Indian country, from the operation of the Act.
Has there been any subsequent legislation that by implication repeals or modifies section 1, of the Act in question, as applied to the locus in quo. We will not anticipate the plaintiffs by calling attention to the laws that may be sup-posed to have had this effect, but will call attention to the well settled principles by which all claims of repeal or modification by implication are to be tested.
One statute is not to be construed as a repeal of another if it be possible to reconcile the two together. (Sedgw Stat, and Const. Law, 127; Harford v. United States, 8 Cranch, 109. Cool v. Smith, 1 Black, 459.) To create a repeal by implication, there must be a positive repugnancy between the provisions of the new law and those of the old, and even then the old law is repealed by implication only, to the extent of the repugnancy. (Wood v. United States, 16 Pet., 342; Daviess v. Fairbaern, 3 How, 636; Harden v. Gordon, 2 Mass., 540.) Tried by these well settled rules of law, we are not aware of any legislation that by implication repeals or modifies to any extent the section under consideration. It will probably not be contended that the mere organization of a temporary territorial government would per se have this effect, or that there is anything in the Act of Congress establishing territorial governments inconsistent with a law excluding spirituous liquors; besides the Act establishing the Territory of Dakota specially reserves to Congress the regulation of all matters pertaining to the Indians. (12 Stat., 289, Sec. 1.) Nor will it
