27 Ark.] s OF THE STATE OF ARKANSAS. 419 TERM, 1872.] State v. Jennings. STATE v. JENNINGS. CoaroaAnoNs—Natture and powers of.—Corporations having muniiiipal powers are mere tenants at will of the Legislature, so far as the officers thereof are concerned, and the General Assembly may incorporate a place, add to, qualify or aEolish its municipal powers without its censentI STATUTES—Construction of.—In the construction of a statute, where the court finds, in any particular clause, an expression not so large and extensive in its import as those used in other' parts of the same statute, , if upon a review of the whole act, the real intention of the Legislature can be collected from the larger and more extensive expressions used in other parts, effect will be given to the larger expressions. SAME—Act of April 9, • 1869.—The act of the General Assembly of April. 9th, 1869, entitled, "An act to regulate the incorporation and organization of municipal corporations," was intended to make uniform rules and regulations for all the cites and towns of the State, and repeals the act of July 23d, 1868, entitled, "An act for the incorporation of cities and towns." PETITION FOR QUO WARRANTO. Montgomery, Attorney General, Yonley & Warwick, for the State. U. M. Rose, for Defendant. To sustain the position that the incorporation of Camden, under the act of 1868 is still in all respects valid, I refer to the
420 CASES IN THE SUPREME COURT [27 Ark. State v. Jennings. [JUNE following cases: Hughes vs. Farrar, 45 Maine, 72; Walworth vs. Whittaker, 17 Wis., 193; Janesville vs. Markoe, 18 Id., 350; 'Crosby vs. Patch, 18 Cal., 438; Shinn vs. Commonwealth, 3 Grant (Pa.), 205; McLaughlin vs. Hoover, 1 Oregon, 31; Nixon vs. Piffet, 16 La. An., 379; DePauw vs. 1Vew Albany, 22 Ind., 204; Mullen vs. People, 31 Ill., 444; Elliott vs. Lochnane, 1 Kansas, 116; State vs. Morrow, 26 Mo., 131; People vs. Gibb, 7 Cal., 356; Grace vs. Donovan, 12 Minn., 580; Wood vs. United States, 16 Peters, 342; Daviess vs. Fairbairn, 3 How., 636; Har-dia vs. Gordon, 2 Mason, 540. MCCLURE, C. J.—The only question presented by the de-murrer, to the response of the defendant, is, whether the act of April, 9, 1869, entitled "An act to regulate the incorporation and, organization of municipal corporations," repeals the act of July 23, 1868,. entitled "An act for the incorporation of cities and towns." The defendant urges that the repealing section of the act of April 9, 1869, does not describe cities acting under the act of July 23d, 1868, and.because it is not so described, that the city of Camden is not bound to conform to the first recited act. The fifth section of the act of April 9, 1869, reads as follows: "All corporations which existed when the present Constitution took effect, for, the purpose of municipal government, and described or denominated in any law then in force, are hereby organized into cities of the first and second class, as the case may be, and incorporated towns, with the territorial limits resiSectively prescribed or belonging. * * * * * All acts now in force for the organization or government of any such municipal government or corporation shall be, and they are hereby repealed." At the adoption of the present Constitution the city of Camden was being operated under a special charter granted by the General Assembly, on the seventh of December, 1846;
Ark.] OF THE STATE OF ARKANSAS. 421 TERM, 1872.] State v. Jennings, but before the passage of the act of April 9, 1869, she surrendered her special charter and accepted the municipal powers granted by the act of July 23, 1868. -- Bight at the threshold of this case we are confronted with three well established rules of construction as applicable to this ease: First. That repeals by implication are not favored. Se6ond. That where two statutes can be construed together, the latter will not be construed a repeal of the former, and Third. That the mentioning of one class, and silence as to another, evidences an intention that the unenumerated class should be excluded. These are all general rules, and, when applied in proper cases, have hut few, if any, exceptions. There is, however,, another well known rule which is as imperative as those mentioned, • whieh must not be lost sight of, and it is, that where the Legishi lire take up a 'whole subject and cover the entire ground of the subject matter of a former statute, and evi-dentiv intended it as a substitute, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not em-, braced in the new. Pulaski County vs. Downer, 10 Ark., 589. There is no express language repealing the act of July 23, 1868, in the act of April 9, 1869, and it is here conceded that cities, acting under the act of July 23, 1868, are not specifically described. The question now arises, did the Legislature intend to fix one certain and uniform rule for ull the cities and towns within the State, or did it intend that the city of Camden should retain its then organization, and that all the others should conform to the act of April 9, 1869? Counsel are ,in error when ' they suppose that citizens and officers of any particular locality have a special right to any speciAc form of municipal government. Corporadons having municipal powers are mere tenants at will of the Legislature, so far as the officers thereof are concerned; creditors, and persons having vested rights in property, stand upon a differ-
422 CASES IN THE SUPREME COURT [27 Ark. State v. Jennings. [JUNE ent footing. The General Assembly may incorporate a place without its consent, and without its consent add to, qualify or even abolish its municipal powers. The English doctrine, that the king cannot force a new charter upon a municipal corporation, has no application in this country, nor is the power of the Legislature in this respect, measured by any such rule. Clinton vs. Cedar Rapids R. I?. Co., 24 Iowa, 445. All law writers agree that the intention of the Legislature should prevail. The intent may be gathered from the 'text and body of the law itself; or it may be gathered from the condition of affairs existing at the date of the enactment; the evil sought to be remedied and such other facts and circumstances as may have become a part of the history of the country. Guided by these general rules, let us examine the question at bar. The first General Assembly which assembled under the provisions of the present Constitution found it enjoined upon them to enact a general law for the incorporating and regulation of municipal corporations, and an effort to comply with that injunction was made by the ast of July 23, 1868. If a lawyer will take up that act and examine it he will find many powers conferred upon municipal corporations which are directly in conflict with the ConsHtution of the State. He will find many things which will convince him that the act was hastily and unadvisedly drawn—that it was imperfect and incomplete. He will also find that no attempt is made to "restrict the power of taxation, assessments, borrowing Money, contracting debts, or loaning the credit" of towns and cities, as it is provided that the Legislature shall do by Section 49, Article V., of the Constitution. With this knowledge and these facts in view, we are as much called upon to decide whether the Legislature intended to include Camden within the provisions of the act of 1869, as we are to determine whether it intended to exclude it. In the first place, Camden is the only city in the State which accepted the provisions of the act of July 23, 1868, before the passage of
27 Ark.] OF THE STATE OF ARKANSAS. 421 TERM, 1872.] State v. Jennings. but before the passage of the act of April 9, 1869, she surrendered her special charter and accepted the municipal powers granted by the act of July 23, 1868. Right at the threshold of this case we are confronted with three well established rules of construction as applicable to this case: First. That repeals by implication are not favored. Second. That where two statutes can be construed together, the latter will not be construed a repeal of the former, and Third. That the mentioning of one class, and silence as to ano‘l, er, evidences an intention that the unenumerated class should be excluded. These are all general rules, and, when applied in proper cases, have hut few, if any, exceptions. There is, however, another well known rule which is as imperative as those mentioned, wH o li must not be lost sight of, and it is, that where the Legiaure take up a whole subject and cover the entire ground of the subject matter of a former statute, and evi-dentl y intended it as a substitute, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new. Pulaski County vs. Downer, 10 Ark., 589. There is no express language repealing the act of July 23, 1868, in the act of April 9, 1869, and it is here conceded that cities, acting under the act of July 23, 1868, are not specifically described. The question now arises, did the Legislature intend to fix one certain and uniform rule for all the cities and towns within the State, or did it intend that the city of Camden should retain its then organization, and that all the others should conform to the act of April 9, 1869? Counsel are in error when they suppose that citizens and officers of any particular locality have a special right to any specifitc form of municipal government. Corporations having municipal powers are mere tenants at will of the Legislature, so far as the officers thereof are concerned; creditors, and persons having vested rights in property, stand upon a differ-
f 424 CASES IN THE SUPREME COURT [27 Ark. State v. Jennings. [JUNE And it further declares that "any incorporated town which, at any future federal census * * * shall be found to have a population exceeding twenty-five hundred, and less than five thousand, shall thereafter be deemed a city of the second class ;" and section five provides, that towns having a less population than twenty-five hundred, shall be incorporated towns and governed as prescribed therein. Here we find a well defined intention , . to classify all the towns and cities in the State into cities of the first class, cities of the second class and incorporated towns, and also the means by Which they shall be advanced from one grade to another. These . different classes exercise different municipal powers, commensurate with the wants and necessities of each, according to the population. • We can see nothing in the classification which convinces us that Camden was not to recognize these different gradations. On the contrary, when we come to examine the whole Act, the impression .is left on the mind that the General Assembly was attenipting and intending to make uniform rules and regulations for all the cities and towns, according to the population thereof. A further examination of the Act of April 9, 1869, discloses the fact that many of the obnoxious provisions of the Act of July 23d, 1868, are not incorporated in the later Act. In addition to this, the power of taxation is restricted and limited according to the grade , of the city or town, as the case may be; and t • he power to contract debts, and the loaning of their credit is fully protected, as it is contemplated by the Constitution the General Assembly shall • do. In short, the Act of April 9, 1869, seems to be as complete a revision and substitute for the Act of July 23, 1868, as it is for the cities and towns which had charters at the adoption of the present Constitution. This being true, the demurrer to the response is sustained and a judgment of ouster. ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.