Moncus v. Raines, 4-7889.

• Decision Date: 29 April 1946
• Docket Number: No. 4-7889.,4-7889.
• Citation: 194 S.W.2d 1
• Parties: MONCUS et al. v. RAINES.
• Court: Arkansas Supreme Court

Page 1

194 S.W.2d 1

MONCUS et al. v. RAINES.

No. 4-7889.

Supreme Court of Arkansas.

April 29, 1946.

Concurring Opinion May 13, 1946.

Appeal from Circuit Court, Pike County; E. K. Edwards, Judge.

Action by Joseph W. Moncus and Clause F. Moncus, a minor, by Joseph W. Moncus, his next friend, against Douglas Raines to recover for injuries sustained by minor plaintiff as the result of an alleged wrongful assault by defendant while arresting minor plaintiff. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

Boyd Tackett, of Nashville, and Tom Kidd, of Murfreesboro, for appellants.

J. H. Lookadoo and Agnes F. Ashby, both of Arkadelphia, for appellee.

ROBINS, Justice.

The question posed by this appeal is: Did Act No. 314 of General Assembly of Arkansas, approved March 15, 1939 (fixing venue, in actions for personal injury or death, in the county of plaintiff's residence or in the county where the injury occurred), repeal or amend Section 1387 of Pope's Digest (restricting venue, in certain actions against public officers, to the county in which the cause of action arose), so as to permit bringing in the county of plaintiff's residence a suit for damages against an officer for an assault, committed by him while making an arrest in another county?

Appellant, Claude F. Moncus, a minor, resident of Pike County, while at Amity, Clark County, was arrested by appellee, Douglas Raines, marshal of the town, and deputy sheriff of Clark County. While making the arrest appellee struck said appellant, as appellants averred, without cause; and to recover damages for the alleged wrongful assault appellants brought this suit in Pike County Circuit Court, appellee being served with summons in Clark County. Motion to quash return on the summons, on the ground that the venue of the action was in Clark County, was filed by appellee. The lower court sustained the motion and dismissed the suit. This appeal followed.

Section 1387 of Pope's Digest is as follows: "* * * Actions for the following causes must be brought in the county where the cause, or some part thereof arose: * * * Second. An action against a public officer for an act done by him in virtue or under color of his office, or for a neglect of official duty."

By Section 9799 of Pope's Digest it is provided that "the town marshal of incorporated towns shall be the principal ministerial officer of the corporation, and shall have the same power that sheriffs have by law, and his jurisdiction shall be coextensive with the county for offenses committed within the limits of the corporation." Appellee was therefore a "public officer" within the meaning of Section 1387 of Pope's Digest, quoted above.

We have held that misconduct by a peace officer of the kind complained of in the case at bar is embraced within the provisions of the quoted portion of section 1387, supra, and that actions for damages therefor must be brought in the county where the cause of action or some part thereof arose. Edwards v. Jackson, 176 Ark. 107, 2 S.W.2d 44.

The supreme court of Montana, construing a statute almost identical in language with our statute (Sec. 1387, Pope's Digest), said in the case of State ex rel. Stephens v. District Court, 43 Mont. 571, 118 P. 268, 271, Ann.Cas.1912C, 343: "It is contended that the tortious acts (alleged improper treatment of a prisoner by a warden) complained of were not committed by the defendant `in virtue of his office,' but we think there is no force in the suggestion. It could only have been by reason of the fact that he was warden that opportunity was given to commit the alleged acts. If he could commit only legal acts `in virtue of his office,' plaintiff would have no cause of complaint. We think the Legislature intended that an action against a public officer for a tort alleged to have been committed by him in the exercise of his authority as such officer should be tried in the county where the act was done."

Section 1 of Act 314, approved March 15, 1939, entitled "An Act to Fix the Venue of Actions for Personal Injury and Death", commonly called the "Venue Act", provides: "All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service." And Section 2 of the same Act is as follows: "This act shall not repeal any provision for venue of actions except such as are inconsistent herewith and all laws and parts of laws in conflict herewith are repealed."

Appellants argue that this later Act repeals the above quoted subdivision of Section 1387 of Pope's Digest, which was a part of the Civil Code adopted in 1868, in so far as the venue of actions such as the instant case is concerned, and that this suit, since it was for damages for personal injury, was properly brought in Pike County, the county of residence of the injured party.

The "Venue Act" did not expressly repeal the said subdivision of Section 1387 of Pope's Digest, and, if such a repeal was effected, it must have been done by implication. In fact, Section 2 of that Act provides that no existing laws as to venue, unless inconsistent with the new Act, should be repealed.

Repeals by implication are not favored, and before a court may properly hold that a later Act repeals an earlier law it must appear that there is such a conflict between the two that both cannot stand, and, therefore, the later Act, being the last expression of legislative will, must prevail, or it must appear from the later Act that in enacting it the legislature intended to take up and deal with all matters embraced in the purview of the prior Act.

In 50 Am.Jur., p. 542 et seq., the rule is thus stated: "Repeals by implication are not favored, and there are many instances in which particular statutes are held not to be repealed by implication. As a general rule, the legislature, when it intends to repeal a statute, may be expected to do so in express terms or by the use of words which are equivalent to an express repeal, and an intent to repeal by implication, to be effective, must appear clearly, manifestly, and with cogent force. The implication of a repeal, in order to be operative must be necessary, or necessarily follow from the language used. * * * The courts will not hold to a repeal if they can find reasonable ground to hold the contrary. * * *"

On page 548 of the same volume (50 Am.Jur.) it is said: "The criterion by which to determine whether there is an implied repeal, is whether or not there is irreconcilable conflict between an earlier and a later statute. * * * Indeed, it must appear that a later act is contrary to, or inconsistent with, a former act in order to justify the conclusion that the first is repealed. Since laws are presumed to be passed with deliberation, and with full knowledge of existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Except where an act covers the entire subject-matter of earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, a later act does not by implication repeal an earlier act unless there is such a clear, manifest, controlling,...