Swift & Co. v. Sones

• Decision Date: 19 April 1926
• Docket Number: 25651
• Citation: 142 Miss. 660,107 So. 881
• Parties: SWIFT & CO. v. SONES et al. [*]
• Court: Mississippi Supreme Court

107 So. 881

142 Miss. 660

SWIFT & CO. v. SONES et al. ^[*]

No. 25651

Supreme Court of Mississippi

April 19, 1926

Division B

1 AGRICULTURE. STATUTES. Former law is repealed by later enactment, which covers its entire scheme, although provisions are somewhat different; statute not repugnant to former one, but clearly intended to prescribe only rule in case provided for, repeals former statute; statute comprising complete scheme to control sale of fertilizer held to repeal prior statutes regulating same subject (Laws 1912, chapter 138; Code 1906, sections 2244-2263).

Where the legislature covers the entire scheme embraced in the former law, the former will be repealed by the latter although there is some difference in the provisions of the two statutes. A statute not repugnant in its provisions to a former one, but clearly intended to prescribe the only rule in the case provided for, repeals the former statute. Consequently chapter 138, Laws of 1912, being a complete scheme for the control of the sale of fertilizers in the state, repeals chapter 51, Code of 1906, regulating the same subject.

2 AGRICULTURE. Statutes. Ordinarily two acts approved same day will not be held to be repealed one by the other, but, if they are upon same subject and in conflict, court will look to actual passage of acts to determine latest legislative intention; if provisions of two acts approved the same day can be reconciled, court will do so by reading into provisions of one using general language, provisions of other specifically controlling subject; statutes relating to analysis of samples of fertilizers held not in conflict (Laws 1912, chapters 138, 220).

Ordinarily two acts approved on the same day will not be held to be one repealed by the other, but, if they are upon the same subject and in conflict, the court will look to the actual passage of the acts through the legislature to determine the latest legislative intention, although each is approved by the Governor on the same day, but, if the provisions can be reconciled by the court, the court will do so by reading into the provisions of the one, using general language, the provisions of the other specifically controlling the subject.

3. STATUTES. Where two acts are passed on same day, but go into effect on different days, one taking effect last will become law from that day, where they are in necessary conflict.

Where two acts are passed on the same day, but go into effect on different days the one taking effect last will become the law from that day, where they are in necessary conflict.

4. EVIDENCE. Statute requiring state chemist to analyze samples of fertilizers held not to authorize introduction of certificate of chemist in evidence, where samples are not drawn and forwarded as required by statute; where samples of fertilizers are not drawn and forwarded as required by statute, certificate of state chemist is not admissible in evidence, but it is necessary to take depositions of state chemist and others (Laws 1912, chapter 138, section 15 [Hemingway's Code, section 4610] Laws 1912, chapter 138, section 16).

Section 15, chapter 138, Laws of 1912 (Hemingway's Code, section 4610), providing that the state chemist shall analyze samples of fertilizers sent to him by farmers, provided that such samples shall be drawn in the presence of two disinterested witnesses, who will certify that such samples were taken in accordance with the printed directions of the state chemist, and such samples so drawn shall be delivered to the witnesses who will themselves forward them to the state chemist for analysis, does not authorize the introduction of the certificate of the chemist in evidence under section 16, chapter 138, Laws of 1912, where the samples are not so drawn and forwarded. In such cases it will be necessary to take depositions or the testimony of the state chemist and others.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Lamar county, HON. J. Q. LANGSTON, Judge.

Action by F. B. and L. B. Sones against Swift & Co. for damages for deficiency of fertilizer sold. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

Judgment reversed.

Stevens & Heidelberg, for appellant.

I. The court erred in permitting the introduction in evidence in this case of the certificate from the state chemist. This certificate was incompetent for the reason that the proof failed to show that the samples drawn and sent to the state chemist, on which this analysis was based, were drawn according to law. In fact, the proof showed the contrary. See sec. 15, ch. 138, Laws of 1912. (1) Admittedly, the samples were not drawn in accordance with the provisions of this act, since they were not drawn in the presence of two disinterested witnesses. (2) After the samples were drawn, they were taken by one of the plaintiffs alone sixteen miles to Purvis. (3) The samples were sent by one of the plaintiffs to the state chemist when no witness, interested or otherwise, was present. (4) The act itself requires the witnesses to forward the samples to the state chemist, and this was not done.

II. There is no existing law in Mississippi authorizing the recovery of quadruple damages where fertilizer is sold and lacks a material element represented to be therein. The only statute which ever authorized the recovery of quadruple damages was section 2256, Code of 1906, which is embraced in and forms a part of chapter 51, Code of 1906, dealing with the subject of fertilizers, and we submit that this entire chapter has been superceded and repealed by chapter 138, Laws of 1912.

Chapter 138, Laws of 1912, is a complete scheme covering the entire field of regulation in the traffic of fertilizer, and the penalties for violations thereof, and covers the same general ground as was covered by chapter 51, Code of 1906.

"Where a statute is evidently intended to revise the whole subject treated in a former statute and to be a substitute therefor, it repeals such former statute, and though there may be a plain casus omissus, the court cannot supply it. Sedg. St. & Const. Law 365, 366 and note; M. & O. R. R. Co. v. Weiner, 49 Miss. 725." Clay County v. Chickasaw County, 1 So. 753.

"A statute existing may be repealed without being specifically and directly referred to where the legislature enacts a new statute covering the field covered by the former act, although there is some difference in the provisions of the two statutes." State v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11.

Chapter 138, Laws of 1912, does not specifically amend or repeal any section of chapter 51, Code of 1906, but provides in general terms that all laws and parts of laws in conflict therewith are repealed to take effect on April 1, 1912. Under the doctrine laid down in the decisions heretofore cited, the effect of this complete revision of the fertilizer laws of this state was to repeal chapter 51, Code of 1906, thereby repealing that section of this latter section, 2256, authorizing the recovery of quadruple the price received or agreed to be paid.

However, even if we should be wrong in our conception of the effect of chapter 138, Laws of 1912, if it is not such a complete revision of the entire subject-matter dealt with in chapter 51, Code of 1906, as to repeal the entire chapter, still it is bound to be true that all provisions of chapter 51, Code of 1906, in conflict with the provisions of chapter 138, Laws of 1912, are repealed by implication. Then sections 2256 and 2257, Code of 1906, are repealed by chapter 138, Laws of 1912.

The fact that the sections of the Code of 1906 under discussion are embraced in Hemingway's Code, gives them no life if they are repealed because the act of the legislature adopting Hemingway's Code provides as follows: "It is further provided that any law which may have been repealed and which may have been included in said code and supplement, or which may have been subsequently repealed, shall not be revised by this act."

Rawls & Hathorn, for appellees.

If appellant is right in the contention that chapter 138, Laws of 1912, has the effect of repealing chapter 51, Code of 1906, then we have entirely misconceived our measure of damages, and the case must be reversed If appellant is in error in the contention that chapter 138, Laws of 1912, repeals chapter 51, Code of 1906, then we submit that the case should be affirmed.

We submit that unless appellant can show the court that every reasonable provision and protection given by chapter 51, Code of 1906, has been taken care of by chapter 138, Laws of 1912, then his entire theory fails, his carefully constructed analysis disintegrates, and the error of his contention is made manifest.

Let us see, first, what provisions and protections are in chapter 51, which are not in chapter 138. Section 2244, Code of 1906 (section 4586, Hemingway's Code) defines the term "fertilizer" as used in the Code chapter. We challenge appellant to show us in the act of 1912, a definition of the term. Section 2245, Code of 1906, (section 4587, Hemingway's Code) provides that the professor of chemistry at A. & M. shall analyze all fertilizer and his certificate of analysis shall be posted and kept posted in a conspicuous place at every place where fertilizer is sold. The act of 1912 has no such provision. Section 2246, Code of 1906 (section 4588, Hemingway's Code) provides that the certificate of the manufacturer shall be posted also where fertilizers are sold, this certificate giving the component parts, etc., and guaranteeing that it does not contain leather, etc. Section 2247 is left out of Hemingway's Code and is clearly taken care of and superceded by section 1, chapter 138, Laws of 1912. Section 2248, Code of 1906 (section 4589,...