In view of the special questions the court submitted to counsel for the respective parties on the reargument of this cause at our April, 1948, term at Pocatello, the decision of this cause now turns upon whether certain provisions of our Workmen's Compensation Act (quoted in the majority opinion) were intended to repeal our wrongful death statute (hereinafter quoted), there being no express repeal.
Our wrongful death statute was enacted in 1881. It provides: [Sec. 5-311, I.C.A.] "Action for wrongful death. — When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just."
Our compensation act was first enacted in 1917 by the fourteenth session of the legislature, 1917 Sess. Laws, chap. 81, p. 252. Under the well settled rule of statutory construction, it must be conceded the legislature when it enacted the Workmen's Compensation Act, had the death statute in mind. Idaho Mutual Benefit Association v. Robison, 65 Idaho 793,799, 154 P.2d 156; Walker v. Wedgwood, 64 Idaho 285, 289,130 P.2d 856. With the provisions of the death statute before it, and the provisions of the proposed Workmen's Compensation Act also before it, the legislature knew what, if any, conflict would be created by the enactment of the latter statute. Hence, if the legislature had had the remotest intention of repealing the death statute by the enactment of the Workmen's Compensation Act, it would, of course, while it had all the provisions of both statutes before it for consideration, have included an express provision repealing whatever provisions of the death statute might appear to be in any way in conflict with the Workmen's Compensation Act. And further, if the legislature had had the slightest intention of repealing all the provisions or any provision of the death statute, it would at least
have included the usual provision (which it did not) "That all acts, and parts of acts, in conflict herewith, are hereby repealed."
Furthermore, and as held by this court in State v. Martinez,43 Idaho 180, 187, 250 P. 239, 240: "``To effect an impliedrepeal of one statute by another they must both relate to thesame subject and have the same object or purpose. Where there is a difference in the whole purview of two statutes apparently relating to the same subject, the former is not repealed. Wherethe evils which an act is designed to remedy are different fromthose for which a prior act provides, the prior act is notrepealed. * * * [citing cases]'" (Emphasis added.)
And, too, it must be kept in mind the death statute is a prior special or specific statute, and that our Workmen's Compensation Act is a general statute. This court just held (March 16, 1948) in John Hancock Mutual Life Ins. Co. v. Haworth, 68 Idaho 185, 192, 191 P.2d 359, 362, 363, that: "The presumption is that a general or broad act was not designed to repeal a special or specific act, but that the special or specific act was intended to remain in force as an exception to the general or broad act."
In the case at bar the complaint alleged a cause of action under the death statute; it did not plead dependency within the meaning of the Workmen's Compensation Law and the decisions thereunder.
The judgment should be affirmed.
I am authorized to say MILLER, J., concurs in this dissenting opinion.