State of Arkansas on Relation of Attorney General v. Trulock
| Citation | 160 S.W. 516,109 Ark. 557 |
| Parties | STATE OF ARKANSAS ON RELATION OF THE ATTORNEY GENERAL v. TRULOCK. RAMSEY v. FARMER |
| Decision Date | 27 October 1913 |
| Court | Supreme Court of Arkansas |
Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.
Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.
Judgment affirmed.
Wm. L Moose, Attorney General, and A. R. Cooper, for appellant.
Section 1 of the act of March 3, 1913, not only operates as a repeal of that part of section 5667, Kirby's Digest, providing for the appointment of the board of improvement districts by the city council, but also as a repeal of the entire section.
Generally speaking, where a statute is amended "so as to read as follows," the amendatory act becomes a substitute for the original, which then ceases to have the force and effect of an independent enactment. This does not mean, however, that the original is abrogated for all purposes, or that everything in the later statute is to be regarded as if first enacted therein; but the better and prevailing rule is that so much of the original as is repeated in the later statute without substantial change is affirmed and continued in force; that so much as is omitted is repealed, and that any substantial change in other portions of the original act, as also any matter which is entirely new, is operative as new legislation. 75 N.W. 717; 92 N.W. (N. D.) 449, 450; 18 L.R.A. 713; 155 F. 945; 34 A. 954; 1 Sutherland, Stat. Const. 442; 49 N.Y. 332; 84 N.Y. 610; 15 N.Y. 595; 63 Cal. 261.
Danaher & Danaher and Rose, Hemingway, Cantrell & Loughborough, for appellee; Thomas & Lee, Gordon Frierson, Ira D. Oglesby, James P. Clarke, C. W. McKay and Wm. H. Arnold and Gustavus G. Pope filed separate briefs as amici curiae.
Article 5, section 22, of the Constitution, has reference to the substance of the law, and does not deal with sections as divided in the statutes. It does not say that no section of the statute shall be amended unless the whole section is set out at length, but only that the law shall not be amended unless the amendment is so set out.
Kirby's Digest, section 5667, deals with two matters, first, the presentation of the petition by a majority of the property owners, and, second, the appointment of commissioners by the city council. The act of 1913 deals only with the first of these subjects, makes no change therein by reference, but sets out fully, as required by the Constitution, the law as amended.
It was plainly not the intention of the Legislature to repeal that portion of the statute giving power to the city council to appoint commissioners. To do so would be to nullify the act, whereas the statute in question was passed expressly to facilitate the operations of such improvement districts. As further evidence that the Legislature did not intend to repeal this part of the statute, every clause, almost, of the act refers to the commissioners. See sections 2, 6, 8, of the act.
In construing legislative enactments, the object of the courts is to ascertain the intention, the purpose, of the law-makers. All rules of construction are directed to this end, and whenever the purpose is plain, the language, however inapt, must be moulded to accomplish the desired result. 34 Ark. 263-269; 35 Ark. 56-59; 58 Ark. 113-116; 60 Ark. 343-348; 37 Ark. 491-494; 94 Ark. 423-426; 100 Ark. 175-178; 153 S.W. 821, 822. The foregoing cases give emphasis to the principle that when the intention of the Legislature is apparent, it is to be given effect, however careless it may have been in the use of language. See also, in support of our contention, 44 N.E. 779, 780; 150 N.Y. 200; 50 P. 522, 523, 525; Lewis Sutherland, Stat. Const., § 236.
The power of the city council to appoint commissioners is necessarily implied from the other sections of the statute, and this is a conclusive answer to appellant's contention that it has no such power. The whole scheme of municipal improvement is based upon the appointment of commissioners, and other sections of the statute provide for their activity. See section 5670, as amended by Act 81, Acts 1909, and 48 Ark. 82; 60 Ark. 356; 78 Ark. 453.
J. W. & J. W. House, Jr., for appellant.
1. In addition to the authorities cited by appellant in State ex rel. v. Trulock, we refer also to the following on the effect of the use of the words "amended to read as follows." 107 P. 980, 981; 105 P. 994; 86 N.E. 1042; 97 S.W. 662-664.
In view of the authorities cited and referred to, the act of March 3, 1913, unquestionably repealed that part of section 5667, Kirby's Digest, relating to the appointment of commissioners. "The effect of an amendment," says this court, "is to so change the former act as to make it read in the same manner it would have read, and to give it the same effect it would have had, if it had been originally enacted as amended. " 91 Ark. 243; 100 Ark. 175; 55 Ark. 389; 73 Ark. 600; 89 Ark. 598.
The cases relied on by appellees in the case of State ex rel. v. Trulock, refer to the interpretation of a statute on account of some ambiguity; but in none of them does the court go so far as to supply that part of an enactment which goes to the whole substance of the statute. It is not within the province of the courts to legislate, to make a law, but only to declare it, and to supply the defect in this statute would be legislation. Neither do courts "sit to supervise legislation and keep it within the bounds of propriety and common sense." 72 Ark. 195-201; 11 Ia. 367, 368; 27 Me. 285; 1 Bland, 46; 65 P. 563-565; 47 N.W. 923-925; 106 N.W. 451; 138 N.Y.S. 975-981; 149 S.W. 656-661; 36 Cyc. 1112-13; Endlich on Interpretation of Statutes, § 22; 117 U.S. 567; 29 Law Ed. 940. Regardless of any expression of its intent by the Legislature, without a positive declaration of intention to repeal section 5667, the provision with reference to the commissioners would be repealed by implication. 92 Ark. 600; 82 Ark. 302; 96 Ark. 92-98. And this leaves the city council with no implied power to appoint commissioners, since all its powers must be derived from Legislative enactment. 86 Ark. 1-11.
2. Before an improvement district can be created under our statute, the improvements must constitute an entirety. It is both unjust and unreasonable that property in a business district should be improved by assessments made on property far removed from the business center, as is the case here. 109 P. 610-11-12.
Rose, Hemingway, Cantrell & Loughborough, for appellees.
1. The court is not called upon to legislate. The only question is whether or not the Legislature intended to repeal the section with reference to the appointment of commissioners, and to arrive at this intention by construing the act of 1913 in the light of all of its provisions.
2. The territory is contiguous within the meaning of the law. The power of a city council to lay off improvement districts according to its own discretion has always been upheld by this court; and its action in "including property in an improvement district is conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake." 52 Ark. 112; 59 Ark. 305; 70 Ark. 465; 98 Ark. 544; 101 Ark. 227: 54 Ark. 321-325.
In each of these cases an attack is made on the validity of an improvement district, one in the city of Pine Bluff, and the other in the city of Argenta, Arkansas, organized pursuant to the general statutes of this State. The point of attack in each case is that the General Assembly of 1913 enacted a statute purporting to amend the general statutes on the subject of organization of improvement districts in cities and towns, but which omitted any provision for the appointment of commissioners, and that the effect of that omission was to render the whole of the law on that subject inoperative.
The original statute relating to the appointment of commissioners by the city council reads as follows:
"If within three months after the publication of any such ordinance a majority in value of the owners of real property within such district adjoining the locality to be affected, shall present to the council a petition praying that such improvement be made, which petition shall designate the nature of the improvements to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such district or districts, the city council shall at once appoint three persons, owners of real property therein, who shall compose a board of improvement for the district." Kirby's Digest, § 5667.
The amendatory statute was approved and went into effect March 3, 1913, and the title thereof is "An Act to amend the statutes in reference to improvement districts in cities and towns." Act No. 125, page 527, Acts 1913. The first section reads as follows:
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State v. Trulock
... ... RAMSEY et al ... FARMER et al ... Supreme Court of Arkansas ... October 27, 1913 ... Appeal from Circuit Court, ... Quo warranto by the State, on relation of W. L. Moose, Attorney General, against W. N. Trulock and others, and ... ...