Hampton v. Hickey

• Decision Date: 07 December 1908
• Citation: 114 S.W. 707,88 Ark. 324
• Parties: HAMPTON v. HICKEY
• Court: Arkansas Supreme Court

114 S.W. 707

88 Ark. 324

HAMPTON v. HICKEY

Supreme Court of Arkansas

December 7, 1908

Appeal from Dallas Chancery Court; Emon O. Mahoney, Chancellor affirmed.

STATEMENT BY THE COURT.

The complaint alleges that G. M. Hampton, the plaintiff, is a citizen and taxpayer of the city of Fordyce, which was organized into a special school district under the laws of the State of Arkansas providing for the organization of special school districts co-extensive with the territory of any incorporated city or town; that the Legislature, by an act approved April 26, 1905, authorized said special school district to borrow $ 15,000, but that it has undertaken to borrow $ 25,000, and, unless restrained, will issue bonds for that sum, secured by a mortgage upon the property of the district, and such bonds may get into the hands of an innocent holder. He therefore prays for an injunction.

The defendants answered, admitting the allegations of the bill and alleging that on April 2, 1908, all members of the board being present, it was found that it needed money to erect new school buildings, and that buildings adequate to the needs of the district would cost $ 25,000, and the board thereupon resolved to issue bonds for that amount, secured by a mortgage on the real property of the district and a pledge of its revenues, and adopted resolutions providing the form of the bonds, the rate of interest thereon, and the form of the mortgage, and directed the defendants to execute it. They deny that the school district is authorized to borrow only $ 15,000, but say that at the time the special act described in the complaint was passed the school board could borrow money and mortgage the property of the district only after the submission of the question to the electors of the district at an annual school election, and the object of the special act was to enable the school directors of this district to issue bonds and execute a mortgage without such election; but after said special act was passed the Legislature passed an act applicable to all special school districts, authorizing the board of directors of such special school districts to borrow money and mortgage the real property of the district, without submitting the question to the electors and leaving the amount to be borrowed to the discretion of the board.

Evidence was adduced to show that the board of school directors passed the resolution referred to in the answer, and that it will require $ 25,000 to construct the buildings needed in the district. That two buildings are needed, one for white and the other for colored children.

The chancellor found that the special school district of Fordyce had the power to borrow the $ 25,000 under the general act of May 6, 1905, and that the special act was repealed by it.

Therefore a decree was entered denying the prayer for injunction and dismissing the complaint for want of equity.

Plaintiff has duly prosecuted an appeal to this court.

Decree affirmed.

T. B Morton, for appellant.

A general act does not repeal a special act upon the same subject unless there is an invincible repugnancy between them. 50 Ark. 132; 51 Ark. 567; 52 Ark. 449; 53 Ark. 339; Id. 417; 54 Ark. 237; 72 Ark. 125; 80 Ark. 413; 81 Ark. 464; 63 Ark. 403. Here there is no inconsistency between the limitation as to the amount the special school district could borrow conferred by the special act and the general authority to borrow given to any school district by the general act. Repeals by implication are not favored. They will be declared only where there is an irreconcilable conflict between the two statutes. 28 Ark. 325; 29 Ark. 237; 34 Ark. 499; 48 Ark. 159; 56 Ark. 47; 41 Ark. 149; 45 Ark 92.

Rose Hemingway, Cantrell & Loughborough, for appellees.

The rule that ordinarily a general act does not repeal a prior particular act is not disputed; but that principle has no application here. The general act applies to all special school districts. Acts 1905, p. 652. Its manifest object was to place all special school districts in the State on an equal, uniform basis, and to permit all of them to borrow money and mortgage their property upon appropriate resolutions by their boards of directors. The general act only extends and widens the power of the special school district over the limited power conferred by the special act and is applicable to any and all special school districts. The general act repeals the special act in this case by implication. 19 Ohio St. 320; 152 Pa.St. 244; 25 A. 556; 166 Pa.St. 152; 30 A. 831; 114 Ill. 138; 44 Mo. 159; 75 Minn. 456; 106 Ky. 628; 167 Pa.St. 628; Endlich, Int. Stat. §§ 230, 231.

HART, J. HILL, C. J., disqualified and not participating.

OPINION

HART, J., (after stating the facts.)

On the 26th day of April, 1905, the Legislature passed an act authorizing the special school district of Fordyce, in Dallas County, Arkansas, to borrow money to build and equip a suitable school building for said district, to mortgage any part or all of the real property of said district, and to issue bonds, notes or other evidences of indebtedness, not to exceed the sum of $ 15,000, under such conditions as to time and manner of payments as the school directors of said district may prescribe. Acts 1905, p. 508.

On the 6th day of May, 1905, at the same session the Legislature passed an act which provided "that all special school districts in Arkansas are hereby authorized and impowered, for the purpose of raising funds for the erection and equipment of necessary school buildings, to borrow money and to mortgage the real property of the district as security therefor, under such conditions and regulations as to time, amount, rate of interest and manner of payment as the board of school directors of said school district shall prescribe, and to renew and extend from time to time any evidences of indebtedness or mortgages, or both, issued or made by virtue hereof."

The sole issue raised by the appeal is whether the first is repealed by the passage of the second act. The general act does not expressly repeal the special act. The general rule on the subject of repeal by implication is that a general act was not intended to repeal a prior special act. St. Louis S. W. Ry. Co. v. Grayson, 72 Ark. 119, 78 S.W. 777; Chamberlain v. State, 50 Ark. 132, 6 S.W. 524.

But, as stated by the author in Lewis' Sutherland, Statutory Construction, vol. 1, § 276: "There is no rule of law which prohibits the repeal of a special act by a general one, nor is there any principle forbidding such repeal without the use of words declarative of that intent. The question is always one of intention, and the purpose to abrogate the particular enactment by a later general statute is sufficiently manifested when the provisions of both can not stand together."

In his illustrations many of the cases relied upon by appellees are cited and reviewed as sustaining the text.

The same author at § 254 says that a new act which extends and enlarges a right before existing impliedly repeals the law by which the former was created or given.

In State v. West Duluth Land Co., 75 Minn 467, it appeared that St. Louis County was prohibited by a special act passed in 1877 to issue bonds, except to refund its existing indebtedness. A general act was passed in 1895 which authorized any county in the State to issue bonds for the purpose of building roads and bridges. It was held that the general enabling act removed the limitations in the special act. In...