Goggin v. Ratchford, 4-9181

• Decision Date: 24 April 1950
• Docket Number: No. 4-9181,4-9181
• Citation: 229 S.W.2d 130,217 Ark. 180
• Parties: GOGGIN et al. v. RATCHFORD et al.
• Court: Arkansas Supreme Court

Page 130

229 S.W.2d 130

217 Ark. 180

GOGGIN et al. v. RATCHFORD et al.

No. 4-9181.

Supreme Court of Arkansas.

April 24, 1950.

N. J. Henley, Marshall, Henley & Henley, Harrison, J. F. Koone, Clinton, for appellants.

W. F. Reeves, Marshall, for appellees.

DUNAWAY, Justice.

The validity of a stock-law election in Big Creek Township in Searcy County is presented for our determination. Suit was filed by appellee Ratchford and others, as citizens and owners of livestock in said township, against appellant Goggin and others, as Election Commissioners, and Lawrence Weaver, as County Clerk, to have quashed the certificates of the Election Commissioners and the County Clerk certifying the approval by the voters of Big Creek Township of the annexation of said township to an adjoining stock-law district previously formed. The Chancellor held the election void and the defendants have appealed.

On July 19, 1948 a petition was filed in the office of the County Clerk of Searcy County signed by seventy-eight persons who represented themselves to be qualified electors of Big Creek Township. The number of signers exceeded seventy-five per cent of the total votes cast for Governor at the General Election in said Township in November, 1946. The petition prayed that the County Court order an election on the question of restraining livestock in said township, the proposal to be voted on at the General Election in November, 1948. Petitioners further asked that Big Creek Township be annexed to the adjoining stock-law district already in existence, if approved by the voters.

From the record it appears that the petition was never presented to the County Court and no order was made by the County Court placing the question on the ballot. However, at the time of making up the ballot for the General Election, the Election Commissioners checked the petition, found that it bore the required number of signatures of qualified electors, and placed the proposal on the ballot. Notice of the General Election was given as required by law; the Sheriff's proclamation for the election included notice that the stock-law question would be on the ballot.

At the election 126 votes were cast on the stock-law issue, of which 86 were in favor of restraining livestock and 40 votes were opposed to the proposal. The County Clerk thereafter entered his certificate in the County Court record declaring the stock-law proposal adopted.

In appellees' suit, filed February 19, 1949, it was alleged that the election was void because there was no order of the County Court authorizing submission of the question to the electors as required by law. Appellants' answer admitted that there was no order of the County Court calling the election, but set forth the facts already stated in this opinion. Appellees filed a demurrer to the answer, which was sustained by the Chancellor on two grounds: (1) Section 10 of Act 156 of 1915, Ark.Stats. (1947) Sec. 78-1411, under authority of which the election was held, was repealed by implication by Act 368 of 1947; as a result of which there is now no authority for holding an election for the annexation of a single township to a stock-law district. (2) Failure of the County Court to make an order calling the election was a jurisdictional defect which rendered the election void, even assuming Section 10 of Act 156 of 1915 still in effect.

The court accordingly held the election void and ordered that the certificates of the results thereof be quashed.

A brief review of the relevant legislative acts dealing with stock-law districts will facilitate an understanding of the questions we must decide.

Act 156 of 1915 authorized formation of stock-law districts upon petition to the County Court of twenty-five per cent of the qualified electors of three or more townships in a body. The procedure to be followed and form of ballot were prescribed in the first three sections of the Act. Sections 4, 5, 6 and 7 had to do with the taking up of estrays where stock-law districts had been created, and the assessment of damages done by such estrays, together with allowable costs to be taxed. Sections 8 and 9 related to the fencing of railroad rights-of-way and driving livestock along public highways. Section 10 provided that where three or more townships had been formed into a stock-law district as provided in the Act, any township or group of townships that would be 'a contiguous whole to the unit thus formed, may be attached to and become a part of said unit, in the same way and manner as herein provided for in the first instance * * *.'

A number of counties were specifically exempted from the provisions of the Act. Searcy County, however, was not one of these. This Act, as amended by Act 446 of 1919, appeared as Section 335 et seq. of Pope's Digest. Since certain named counties are exempted from the Act, it is a local act under Amendment 14 to the Arkansas Constitution, adopted in 1926. For discussion of 'Special and Local Acts in Arkansas' see 3 Ark.Law Review, p. 113.

By Act 368 of 1947, the General Assembly specifically repealed Sections 335, 336, 337, 338 and 346 of Pope's Digest. The provisions of Act 368 of 1947, which was a general law for the formation of stock-law districts in the entire state, appear in Ark.Stats. (1947) Sec. 78-1401 et seq. Those sections of Pope's Digest, Secs. 5, 6, 7, 8, 9, 10 of Act 156 of 1915, not specifically repealed by the 1947 Act are included in Ark.Stats. (1947) Secs. 78-1405 through 78-1411.

The procedure for the initial formation of a stock-law district composed of three or more townships, is practically identical under the 1947 act with that under the repealed sections of Act 156 of 1915. Unless Sec. 10 of the latter act, Ark.Stats. (1947) Sec. 78-1411, remains unrepealed, there is no provision in our statutes for the addition of a single township to an existing stock-law district.

While it is true that local or special acts may not under Amendment 14 be amended, Benton v. Thompson, 187 Ark. 208, 58 S.W.2d 924, repeal of only part of a local or special act is permissible. Gregory v. Cockrell, 179 Ark. 719, 18 S.W.2d 362; Johnson v. Simpson, 185 Ark. 1074, 51 S.W.2d 233.

Repeal of statutes by implication is not favored, Faver v. Golden, Judge, Ark., 227 S.W.2d 453. It is only where a later general act covers the whole subject matter included in a prior special act, so that it is evident that the Legislature intended to make the new act contain all the law on the subject, that the earlier act will be held to have been repealed by implication. King v. McDowell, 107 Ark. 381, 155 S.W. 501. Here the Legislature specifically enumerated the sections of Act 156 of 1915 which were repealed by Act 368 of 1947. The other sections of the 1915 Act are carried forward by the digesters in Ark.Stats. as still being in effect. Since Section 10 of Act 156 of 1915 is the only provision in the law authorizing the annexation of single townships to stock-law districts; and since this subject matter was not covered by the ...