Boyett v. Cowling

• Decision Date: 23 April 1906
• Citation: 94 S.W. 682
• Parties: BOYETT v. COWLING.
• Court: Arkansas Supreme Court

94 S.W. 682

BOYETT v. COWLING.

Supreme Court of Arkansas.

April 23, 1906.

Appeal from Circuit Court, Hempstead County; Joel D. Conway, Judge.

Action by Ruff Boyett against L. E. Cowling to contest the latter's right to office of assessor of Hempstead county. From a judgment in favor of defendant, plaintiff appeals. Reversed and rendered.

T. C. Jobe and Jas. H. McCollum, for appellant. C. C. Hamby, for appellee.

HILL, C. J.

Ruff Boyett was assessor of Hempstead county, and was re-elected to said office without opposition in the general election of September, 1904. On the 21st of November he wrote the Secretary of State, requesting his commission as assessor and sending the fee of $2 therefor. On December 2, 1904, the Governor took the position that the failure of Boyett to apply for his commission within 60 days and pay the fee therefor and file his duplicate oath of office within 15 days after receipt of the commission vacated the office, and he thereupon appointed L. E. Cowling assessor. This suit resulted, the circuit judge gave judgment for Cowling, and Boyett appeals. The appellant makes these contentions: (1) That sections 647, 648, Kirby's Dig., containing the provisions above referred to, viz., applying and paying for commission within 60 days, and filing duplicate oath within 15 days thereafter, were repealed. (2) That said statutes are unconstitutional. (3) That the governor did not have the right to fill a vacancy in the office of assessor.

1. The contention is made that said sections were repealed by Act March 14, 1881 (Acts 1881, pp. 73-75), and said act being in turn repealed by Act March 2, 1883 (Acts 1883, pp. 73, 74), which is found in Kirby's Dig. § 646. The act of 1881 provides for commissions for district, county, and township officers to be sent to the clerks of the several counties, and the clerk should collect the fees therefor and deliver the commissions to the officers upon their payment of the fees, and when default was made to return the commissions to the Secretary of State. The clerk was required to notify the officers, and to keep a record of the commissions, date of qualifications, and other details. The act of 1883 provided for payment into the treasury, and required the Secretary of State, on receiving duplicate receipt from the Treasurer, to forward the commission. Section 646, Kirby's Dig. None of these points reached to the point covered in the act of 1895, which constitutes sections 647, 648. The requirement that the commission be applied for and paid for within 60 days, and that the oath of office be taken within 15 days thereafter, and the duplicate filed with the Secretary of State, was consistent with each change in the method of receiving the commissions and the amount of fees due therefor and the officer to whom the fees were payable. It is elemental that repeals by implication are not favored, and they are only recognized when efforts to harmonize the legislation are futile. These acts are susceptible of being read together without being inconsistent or in conflict with each other.

It is also argued that sections 6955, 6956, and 6958, Kirby's Dig., parts of the Revenue act of 1883, repealed sections 647, 648, in so far as the assessor is concerned. Section 6955 requires the assessor within 15 days after receiving his commission to enter into bond; and section 6956 requires him on or before the 1st of January, and before discharging the duties of his office, to take the oath prescribed by the Constitution for all officers, and also an additional oath therein set out pertaining to his office, which must be indorsed on his books; and section 6958 provides for a forfeiture of the office for failing to obey the foregoing provisions.

These are all additional requirements to sections 647, and 648, and there is no such inconsistency between them as to require the court to hold the former act repealed. The whole subject-matter is not covered by any of this latter legislation, and, the acts all being susceptible of standing without infringing on each other, it is the duty of the court to give effect to each of these legislative enactments, and therefore the court holds sections 647 and 648 not repealed.

2. Are these statutes unconstitutional? The state has a right to require its officers to take an oath to support the Constitution of the United States and of the state of Arkansas, and to faithfully discharge the duties of the office. This is not denied. The Constitution requires certain officers to be commissioned by the Governor. Some fee has always been attached to official commissions: in early days only the fee to the Secretary of State for affixing the great seal, but later an act graduating fees for the various offices from $1 to $15 was passed. Persons elected to office take the office subject to such regulations, impositions, and restrictions which the General Assembly...