Pratt v. Dudley , 73 Ark. 536 ( 1905 )

Wood, J.,

(after stating the facts.) An examination of the acts convinces us that the purpose of the Legislature in each, so far as the levee district is concerned, is the same. The last act (1901), while “repealing all laws and parts of laws in conflict with it,” does not repeal those that are not in conflict. The first act (1887) (and the amendatory act of 1893), establishing the levee district, and creating a Board of Commissioners and Inspectors, to be appointed by the county court, and defining the powers and duties of such board, is not in conflict with the act of 1901, so far as the general purpose of maintaining a levee in the territory defined is concerned. All the provisions relating to the preservation of the levee are in harmony. Where there are differences in the acts, they relate to matters of administrative detail only, all looking to the same end of maintaining the levee. The whole scope of the acts indicates a purpose, in the first place, to erect the levee, and. in the second place, to maintain it in the territory named. The last act re-enacted substantially the act of 1887 and the amendatory act of 1893, and gave to the Board of Commissioners and Inspectors of the Levee District the power to dig a ditch, in' addition to the power to repair and maintain the levee. We are quite sure that the Legislature of 1901 did not intend to annihilate the Levee District of Clay and Greene Counties created by the act of 1887, and to extinguish all that had been done under that act. But the purpose was to continue the incorporation and the board, with a change from time to time in the personnel of its membership, and to give it added functions and powers.

The repeal of the act of 1887 and amendatory act of 1893 by the act of 1901 was rather by substitution than by conflict, upon the familiar rule that when the Legislature takes up the entire subject-matter of a prior law, and covers it with a new enactment, the new law, although there may be some added provisions, will repeal the old. But these provisions of the old law, not in conflict, are rather continued and mereed in the new, which is substituted for it; at least, it will be presumed that such was the legislative intent. Broughton v. Pensacola, 93 U. S. 266, 270; O’Connor v. Memphis, 6 Lea, 735, 736. See also, 8 Rose’s Notes, U. S. Rep., 955, for cases cited.

“It is a familiar rule of construction,” says the court in United Hebrew Ass’n v. Benshimol, 130 Mass. 325, 327, “that when statutes are repealed by acts which substantially retain the provisions of the old laws, the latter are held not to have been destroyed or interrupted in their binding force. In practical operation and effect, they are rather to be considered as a continuance and modification of the old laws than as an abrogation of those old and the re-enactment of new ones.” Forbes v. Board of Health, 9 So. 447, 27 Fla. 194; Wright v. Oakley, 5 Met. 400; Steamship Co. v. Joliffe, 2 Wall. 450; Sutherland, Stat. Const. § 134; Endlich, Int. Stat. 490, and other authorities cited in appellant’s brief.

It appears that the fund in controversy was the result of a valid impost for levee purposes. It belonged to the Levee District of Clay and Greene Counties, and the appellants, who constitute the Board of Commissioners and Inspectors for such district, are entitled to this fund to- be used for levee purposes under the law. It is a trust fund in their hands for that purpose.

These causes are properly before this court. The county court under the act had no jurisdiction over the funds or the officers holding them.

The proceeding in chancery was proper to recover trust funds and have them duly administered.

The decree is therefore reversed, and the causes are remanded with directions to reinstate complaints and to enter a decree for the appellants.