Howard, County Treas. v. Stafford, County Judge

It may have been unwise, if not improvident, to fix the compensation of all county treasurers at two per centum of all funds coming into their hands as treasurers, to be paid out of the respective funds, with certain funds excepted. But we are not concerned with that question. That act 78 of the Acts of 1941 does fix those fees appears to me to be indubitable, and the power of the General Assembly to fix that compensation is also indubitable.

Now, the act does not contain a repealing clause, yet the majority say it repealed act 146 of the Acts of 1939. Certainly it did. And if it repealed that act, it repealed all other acts in conflict with it.

In the case of Louisiana on Refining Co. v. Rainwater,183 Ark. 482, 37 S.W.2d 96, the second headnote reads as follows: "When there are two acts on the same subject, the rule is to give effect to both if possible; but if the two are repugnant in any of their provisions, the later act, without any repealing clause, operates, to the extent of the repugnant, as a repeal of the first; and, even where the two acts are not in terms repugnant, yet, if the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act, although there may be provisions in the old act not embraced in the new."

Among other cases to the same effect are the following: Coats v. Hill, 41 Ark. 149; DeQueen v. Fenton,100 Ark. 504, 140 S.W. 716; Eubanks v. Futrell, 112 Ark. 437, 166 S.W. 172; Hickey v. State, 114 Ark. 526,170 S.W. 562; Common School District No. 52 v. Rural Special School District No. 11, 146 Ark. 32,225 S.W. 21; Security Mortgage Co. v. Herron, 174 Ark. 698, 296 S.W. 363; Dicken v. Missouri Pacific Rd. Co., 188 Ark. 1035,69 S.W.2d 277; State, ex rel., Trimble v. Kantas, 191 Ark. 22,82 S.W.2d 847; McDonald v. Wasson, 188 Ark. 782,67 S.W.2d 722; Curlin v. Watson, 187 Ark. 685, 61 S.W.2d 701; Faulkner v. Faulkner, 186 Ark. 1082, 57 S.W.2d 818; Lawyer v. Carpenter, 80 Ark. 411,97 S.W. 662; Johnson County v. Hartman, 177 Ark. 1009, 8 S.W.2d 469; Massey v. State, Use Prarie County, 168 Ark. 174,269 S.W. 567; Boas v. Coates, 114 Ark. 23,169 S.W. 312; Milwee v. Board of Directors Horatio School District,105 Ark. 77, 150 S.W. 391; Hampton v. Hickey,88 Ark. 324, 114 S.W. 707.

Act 78 is a general act, applicable to every county in the state, and if it is anything at all more than a mere scrap of paper, it is a Salary Act. It can be nothing else, if it is anything at all.

It is provided in amendment No. 7 to the constitution that no measure approved by a vote of the people shall be amended or repealed by the General Assembly, or by any city council, except upon a yea and nay vote, on a separate roll call, of two-thirds of all the members elected to each house of the General Assembly, or of the city council, as the case may be. Act 78 was passed in the Senate by a vote of 28 to none, and in the House by an affirmative vote of 69 to 3 negative votes, so that a sufficient vote was cast to repeal even those acts initiated and adopted by the vote of the people. However, it is conceded that Carroll county has no initiated salary act. Acts relating to the salary of the county treasurer of that county were passed by the General Assembly, and it is, of course, within the power of the General Assembly to repeal that legislation, and act 78 accomplishes that result.

The majority say that act 78 does not purport to be a salary act, or other compensatory act for county treasurers. Why not? The majority say the act was merely intended to create a source of revenue accruing to such office, from which the salary of the incumbent could be paid. But that is not the way the act reads. It says: "County treasurer shall be allowed fees as follows: Two per centum on all finds coming into their hands as treasurer" except from certain funds. What can the phrase, "allowed fees" mean except that they shall be paid the fees? There is nothing in the act about accumulating a fund out of which to pay fees. The finds out of which to pay fees accrue as finds are paid into the treasurer's hands, and the act provides that he shall be allowed two per centum of these.

It does not appear to be questioned that the General Assembly has the power to pass a general salary act for all county treasurers. If act 78 does not do this, it has no meaning. In the case of Dozier v. Ragsdale, 186 Ark. 654,55 S.W.2d 779, it was said: "In the construction of statutes, the question is not what the Legislature meant, but what its language means."

I, therefore, most respectfully, but very earnestly, dissent from the conclusion of the majority that the act does not allow county treasurers a commission or compensation of "two per centum on all finds coming into their hands as treasurers, and to be paid out of the respective funds," except from certain funds not here involved and against which no commission is charged or asked.