State v. White , 170 Ark. 880 ( 1926 )

This appeal involves the question of the right of White County, organized as a special district under a general statute enacted in 1909 (Acts 1969, p. 607), to hold and work on the public roads the felony convicts in that county.

It is conceded by those representing the county that the right to hold the convicts depends upon whether or not the statute referred to is still in force. The contention on the part of the State is that the act of 1909, supra, has been repealed by a later statute enacted by the General Assembly in the year 1913. Crawford Moses' Digest, 5375 et seq. Both sides concede that White County was organized as a district under the act of 1909, supra, but that it was not, and, as a single county, could not have been, organized under the later statute, for the reason that there was no provision in the later statute for the organization of a single county into a district for the purpose of working the felony convicts.

The act of 1909 provided, in substance, that the county judges of any two or more counties lying contiguous to each other may form such counties into a road and convict district for the purpose of working the convicts, both for misdemeanors and felonies, on the public roads in the district, and that, in case any county is unable to join in a satisfactory agreement with a contiguous county, the county court of that county may declare such county to be a road and convict district of itself for like purposes as above stated. The statute provides a scheme for working the convicts after organization of the district. A warden was to be employed by the county courts in the district, and the convicts were to be worked under his direction in the several counties. There is a provision that each county shall furnish supplies and suitable quarters or camps for the use of the convicts while being worked in that particular county. The statute contains seventeen sections, and, as before stated, provides a complete scheme for working the convicts on public roads.

The act of 1913, supra, provides that the county judges of the counties composing any judicial district, or any contiguous portion, are authorized to meet at the most convenient point to adopt the provisions of this act "by unanimous vote of the county judges of the counties adopting the same." There is no provision in this statute for a district to be formed in a single county. This statute, too, provides a complete scheme for working the convicts in a district organized thereunder. The statute contains twenty-four sections, and there are provisions similar to and others in addition to the provisions in the former statute.

There are certain well settled rules to determine whether or not a former statute has been repealed by a later one, but there is always some difficulty in applying these rules in determining whether or not a repeal has been effected in a given instance. It is a rule of universal application that implied repeals are not favored, and yet it is equally well settled that there is an implied repeal where there is found irreconcilable repugnance between the two statutes, and also when the Legislature appears to have taken up the whole subject anew and covered the entire ground of the subject-matter of the former statute. In a recent decision we undertook to cover this subject in the following statement: "It is a principle of universal recognition that the repeal of a law merely by implication is not favored, and that the repeal will not be allowed unless the implication is clear and irresistible; but there are two familiar rules or classifications applicable in determining whether or nor there has been such repeal. One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the later one which governs the subject, so far as relates to the conflicting provisions, and to that extent only. * * * The other one is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject-matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new." Babb v. El Dorado, ante p. 10. In the application of those principles, the following cases may be considered with profit: Lawyer v. Carpenter, 80 Ark. 411; Western Union Tel. Co. v. State, 82 Ark. 302; Hampton v. Hickey,88 Ark. 324; C. R. I P. Ry. Co. v. McElroy, 92 Ark. 600; Carpenter v. Little Rock, 101 Ark. 238; Eubanks v. Futrell, 112 Ark. 433; Massey v. State for Use of Prairie County., 168 Ark. 174; Mays v. Phillips County, 168 Ark. 829; Farelly Lake Levee District v. Hudson, 169 Ark. 33. Applying those tests to the statute now under consideration, we are of the opinion that, in enacting the last statute, the Legislature took up the whole subject anew as a substitute for the former legislation on the subject, and that it operated as a repeal of the former statute.

The language of the caption of a statute is not controlling, but it has some force in interpreting the meaning of the lawmakers when otherwise in doubt, and the language of this caption leads to the conclusion that the lawmakers intended it as a substitute for former legislation, which recites that it is the purpose to provide a "complete system for working the county convicts of the State on the public roads and various counties of the State." It not only appears that the last statute was intended to cover the whole subject and exclude former statutes, but there are also found irreconcilable conflicts between the two statutes. Under either statute two or more counties could be organized into a district, but, under the last statute, the whole territory must be embraced within the same judicial district. Now, if both statutes are in force and a district is organized composing two or more counties in the same judicial district, as might occur under either statute, there are conflicting provisions for the operation thereunder. Under one statute it is left to the warden to determine how much work shall be done in each county, and in the other statute the requirement is that an equal amount of work shall be done in each county of the district. Under the last statute there is authority to employ an engineer, but no such authority is found in the first statute. Under one of the statutes each county is to provide equipment and maintenance for the convicts, whereas under the other statute this is done by the district as a whole. There are other differences in the management and operation under the two statutes, and these provisions conflict with each other.

The difference in the two methods of implied repeal are that, where there are merely conflicting provisions and nothing more, the repeal operates merely to the extent of the conflict, but, where the subject is taken up anew by the lawmakers and the repeal is by substitution, the whole of the former statute IS repealed. In this case we have both elements of implied repeal — that is to say, repugnant provisions and substitution of a new statute covering the whole subject. Learned counsel for appellees rely upon our decision in the comparatively recent case of Eubanks v. Futrell, supra. We do not think that the case cited is applicable to the present case, for the statute under consideration in that case related to methods of organization of school districts, whereas the present statutes relate not only to the methods of organization, but also to the operations thereunder, most of the conflicting provisions having reference to the operation. Suffice it to say that, after careful consideration of this subject and of the prior decisions of this court, it follows, from the application of the principles announced in those decisions, that there was an implied repeal of the statute under which White County had been organized into a district. Hence the organization was not valid, and the county has no right to hold the felony convicts.

The decree of the chancery court is reversed, and the cause remanded with directions to render a decree in accordance with this opinion.

HART and SMITH, JJ., dissent.