School Dist. No. 7 of Johnston County v. Cunningham

This action was commenced by T.L. Cunningham et al. filing a petition with the county superintendent of public instruction of Johnston county to detach certain territory described in the petition from school district No. 7 of Johnston county, for the purpose of forming a new school district out of same. That petition was denied by the county superitendent, and an appeal was perfected by said Cunningham et al. to the board of county commisisoners of Johnston county. Upon a hearing the board of county commissioners granted the petition, and ordered the territory described in the petition detached from school district No. 7, and a new district formed comprising said territory. From this order of the county commissioners, school district No. 7 appealed to the district court of. Johnston county. Cunningham et al. filed a motion to dismiss the appeal, on the ground that the action of the county commissioners in said matter was final, and the district court had no jurisdiction to hear and determine the same. This motion was sustained by the district court, and from the judgment and order dismissing said appeal school district No. 7 appeals to this court.

There is only one question presented by the appeal, and that is whether or not an appeal under the statutes then in force would lie from the county commissioners to the district court in matters affecting the alteration and formation of school districts. The order of the county commissioners was made on the 4th day of September, 1911, and the right of appeal to the district court would be controlled by the law then in effect. The Revised Laws of 1910 did not become effective until May 16, 1913, and would have no effect upon the rights of the parties in this case. Chapter 107, Session Laws of 1910, is an act amending section 7975, Snyder's Compiled Laws of 1909, and among other things provides, in the alteration or formation of school districts:

"That one-fourth of the qualified electors of any district affected by such change may join in appeal to the board of county commissioners from the action of the county superintendent, and their decision shall be final."

It is contended by plaintiff in error that inasmuch as this is only an amendment to section 7975, Snyder's Compiled Laws, and does not contain a repealing clause, it does not repeal section 8050 of Snyder's Compiled Laws, which section provides that an appeal may be taken from the decision of the county commissioners in such matters to the district court, and it bases this contention on the ground that repeals by implication are not favored. It is true that it is a well-established principle that repeals by implication are not favored. But it is equally as well established that repeals by implication are effected where there is an irreconcilable conflict.Jefferson v. Winkler, 26 Okla. 653, 110 P. 755; Porter et al.v. Brook, 21 Okla. 885, 97 P. 645; Brewer et al. v. Rust,20 Okla. 776, 75 P. 233; Fritz v. Brown, 20 Okla. 263,95 P. 437; Huston v. Scott, 20 Okla. 142, 94 P. 512, 35 L. R. A. (N. S.) 921; Erwin v. Wheeler, 31 Okla. 331, 120 P. 1098; Hine v. Gokey et al., 23 Okla. 870,102 P. 77.

In Brewer et al. v. Rust, supra, it is said:

"There being no express repeal of the older by the later statute, the law does not favor it by mere implication; but the repeal must be necessary, and, if it arises out of repugnancy between the two, the later abrogates the older only to the extent that it is inconsistent and irreconcilable.'Simonton v. Lanier, 71 N.C. 498; Wood v. United States, 16 Pet. 342, 10 L.Ed. 987."

And in Huston v. Scott et al., supra, the following language is quoted with approval:

"A general repealing clause in an act is a legislative expression which carries with it a repealing effect only where by law the effect would be the same without such repealing clause. Kiersey v. Labette Co., 30 Kan. 576, 2 P. 864;Hornaday v. State, 63 Kan. 499, 65 P. 656; Turner v. State,111 Tenn. 593, 69 S.W. 774. In Turner v. State, supra, it was said: 'The last section of the act contains a general clause repealing all laws in conflict with this act. But the repealing clause found in the last section of this act has no legal effect whatever. The act is precisely the same in legal import and in point of validity as it would have been without that clause, whose presence makes the act neither more nor less a repealing law.' "

The expression last quoted is tantamount to saying that the repealing clause in an act is a mere surplusage; that any law in conflict with the act would be repealed just as effectively without it as with it. And this, we think, is pre-eminently correct, for two irreconcilable statutes cannot be effective, and the last expression of the Legislature is the one that should and does prevail.

Then the only remaining question we have to determine is whether or not section 8050 of Snyder's Compiled Laws, providing that, on questions affecting the alteration or formation of school districts, an appeal may be taken from the county commissioners to the district court is in conflict with chapter 107, 1910 Session Laws, which provides that on such questions the decision of the county commissioners "shall be final." It seems but to state the question would be to answer it; for if the decision of the county commissioners is final, then there can be no appeal from it, and if there can be an appeal from it, then certainly it is not final. There is an irreconcilable conflict between these two statutes, and the last expression of the Legislature must prevail.

We recommend that the judgment of the district court be affirmed, and that the opinion heretofore handed down, dismissing the appeal to this court, be withdrawn, and this opinion on the merits of the cause be substituted therefor.

By the Court: It is so ordered.

ON PETITION FOR REHEARING.