Rehearing
Denied Nov. 21, 1922.
Appeal
from Circuit Court, Walker County; T. L. Sowell, Judge.
Habeas
corpus by S. B. Kirkpatrick. On hearing, petitioner was
discharged, and the State appeals. Affirmed.
Certiorari
denied, Ex parte State of Alabama, 95 So. 494.
SAMFORD, J.
The
questions presented by this appeal involve the validity and
construction of the local statutes affecting the public road
system of Walker county. If the acts of the Legislature of
1919 hereinafter set out are valid and compass and embrace
the whole subject, then the trial judge was in error in
discharging the defendant.
The law
insisted upon by the state as being the governing force
respecting the subject is contained in two acts of the
Legislature of 1919, the latter amendatory of the former, and
when read as now amended is as follows:
"An act to create a county highway commission for Walker
county, Alabama, and to define the powers and duties thereof.
"Be it enacted by the Legislature of Alabama:
"Section 1. That a county highway commission for Walker
county to consist of three members, who shall be freeholders
and residents in said county is hereby created and
established. The Governor shall designate the member to be
chairman of the said commission. One member of the commission
shall hold office for two years, and until his successor is
appointed and qualified, one member shall hold office for
four years and until his successor is appointed and
qualified; and one member shall hold office for six years and
until his successor is appointed and qualified. Provided
further that the two members of the commission now serving
shall continue to hold office until the expiration of their
terms and until their successors are appointed and qualified.
Provided further that the members of the commission to be
appointed under this section shall hold office for a term
ending six years from the date of the approval of this
amendment and until his successor is appointed and qualified.
All vacancies occurring in said commission shall be filled by
the appointment of the Governor. Each member of the
commission shall hold office until his successor shall be
appointed and qualified. Upon the approval of this amendment
the Governor shall appoint the third member of said
commission as herein provided for. The Governor may at his
discretion appoint two assistant highway commissioners, each
of whom may exercise the same powers and authority as any one
of the commission and discharge the same duties.
"Sec. 2. The members of the highway commission shall
receive no compensation for their services, but shall be paid
all their actual expenses necessarily incurred in the
prosecution of their duties. They shall be paid by the county
treasurer out of the road and bridge fund of the county upon
warrants issued by the chairman of the county highway
commission.
"Sec. 3. The county highway commission is vested with
the general superintendence of the public roads within Walker
county, and may establish new and change and discontinue old
roads, and shall improve and maintain the public roads
bridges and ferries of said county so as to render travel
over same as safe and convenient as practicable. To this end
they are given legislative, judicial and executive power.
They may establish, promulgate and enforce new rules
regulations and laws, not inconsistent with this act, which
are necessary to make, improve and maintain a good system of
public roads, bridges and ferries in said county and regulate
the use thereof.
"Sec. 4. The said county highway commission is hereby
given all the authority and power given to courts of county
commissioners with reference to public roads, bridges and
ferries by chapter 135 of the Code of Alabama of 1907.
"Sec. 5. With the consent of the court of county
commissioners the county highway commission may hire out to
contractors for work on the public roads all county convicts.
Nothing herein contained shall be construed as depriving the
court of commissioners of supervision of the convicts hired
on the public roads, but such court shall have and exercise
such supervision and shall be charged with the same duties as
to such convicts as now provided by law, and shall prescribe
the forms of contracts and bonds to be made and given for the
hire of convicts on said roads.
"Sec. 6. The chairman of the commission shall keep or
cause to be kept full and accurate minutes of the meetings
and of all things done at such meetings of the county highway
commission, in a well-bound record book, to be paid for out
of the road and bridge fund, which shall be one of the public
records of the county, and be kept in the office of the
probate judge of said county. The county highway commission
shall also have prepared at the expense of the road and
bridge fund a book of warrants which warrants shall have
stubs to be left in the warrant book. For all expenditures on
account of the road and bridge fund, the chairman of the
commission shall draw warrants, which shall state the name of
the person in whose favor the
warrant is drawn, and the amount thereof, and the account for
which it is drawn, and the stub shall contain a like
statement. When presented to the county treasurer such
warrants shall be paid by him out of the road and bridge
fund.
When not being actually used by the commission such book of
warrants shall be in the custody of the probate judge. The
commission shall make a sworn, detailed statement, at least
once every six months of all warrants drawn on the road and
bridge fund, to whom and for what account paid, which
statement shall be filed in the office of the probate judge
and be open to public inspection. Reasonable
compensation may be paid for clerical help for keeping the
minutes of the meetings and for other clerical work which
this act requires the chairman of the commission to do.
"Sec. 7. If an appeal is taken under section 5776 of the
Code, then the county highway commission, upon the deposit
into court for the party whose land is sought to be
condemned, of the amount of the damages and compensation so
assessed, together with the cost of the proceeding, shall be
entitled to enter upon the land so condemned, and survey and
use the same, provided, however, that the easements shall not
vest absolutely until final determination of the cause, and
the payment or deposit into court of such damages and
compensation as shall then be adjudged.
"Sec. 8. The members of the commission shall,
"before entering upon the duties of the office, take an
oath to be administered by the probate judge to faithfully
perform the duties of their office.
"Sec. 9. The said county highway commission shall be
vested with all the power, authority and duties now conferred
by law upon the court of county commissioners with reference
to every matter relating in any way to the construction,
maintenance, improvement and repair of roads, bridges and
ferries, including the right to order elections for the
issuance of bonds, and the power and right to sell and issue
any bonds that have heretofore been authorized, as required
by law, but which have not been sold and issued.
"Sec. 10. That an act entitled 'An act to better
provide for establishing, working and maintaining the public
roads and bridges of Walker county, Alabama,' approved
March 1, 1901, and also an act entitled 'An act to amend
an act entitled an act to better provide for establishing,
working, and maintaining the public roads of Walker county,
Alabama' approved March 1, 1901, and approved March 6,
1903, shall be and are hereby repealed.
"Sec. 11. That all laws in conflict with this act,
local, general and special, in so far as they pertain to
Walker county, Alabama, be, and the same are hereby
repealed."
Local Acts 1919, pp. 41 and 163.
The
above act by its terms repeals act approved March 1, 1901
(Loc. Acts 1900-01, p. 1740), and an act approved March 6,
1903 (Loc. Acts 1903, p. 214), pertaining to the same
subject, and by section 11 repeals all laws in conflict,
either local, general, or special.
It
would therefore appear that the Legislature in dealing with
the subject in hand undertook to cover the entire
subject-matter embraced in the former act, and it is
correctly conceded by counsel for appellee, as expressed in
his brief:
"Where the provisions of a subsequent statute cover the
entire subject-matter of a former statute, and are clearly
intended as a complete substitute for all the provisions of
the former, a repeal of the former statute is had." 25
R. C. L. 914, § 167, authorities under note 13.
The
application of this rule is not dependent on the
inconsistency or repugnancy of the new legislation and the
old. It is held by many authorities that the old legislation
will be impliedly repealed by the new, though there is no
repugnancy between them. Morris v. Indianapolis, 177
Ind. 369, 94 N.E. 705, Ann. Cas. 1915A, 65; State v.
Wilson, 43 N.H. 415, 82 Am. Dec. 163; Pratt
Institute v. N. Y., 183 N.Y. 151, 75 N.E. 1119, 5 Ann.
Cas. 198; Miller v. Griffith, 171 Ala. 337, 54 So.
650. This rule seems to be unquestioned in Alabama, the
Supreme Court speaking through Tyson, J., saying regarding a
statute of similar import:
"The last act is an affirmative statute revising the
entire subject-matter of the former and was evidently
intended as a substitute for it. This being true, it had the
effect of repealing the former, although containing no
express words to that effect." Edson v. State,
134 Ala. 50-53, 32 So. 308.
To the
same effect are the following: State v. Lamar, 5 Ala
App. 259,...
