PARKER, J.
The questions raised by this record involve a construction of the several statutes making provisions for the fees of assessors. It appears that the first act provided for a commission of five per cent, on the amount of the tax roll when delivered to the tax collector, one-half to be paid by the county and one-half by the Territory, and provided for a recovery back of the commission paid upon all taxes found to have been erroneously assessed. The first change came by the Act of 1891. This act provided that assessors should be paid only on actual collections and school taxes were excluded from the burden of payment of commissions. It thus appears that the Legislature in 1891, adopted an entirely new plan and scheme for the payment of assessors. Instead of paying them five per cent, on the amount of the tax roll as delivered to the collector, and trusting to the future to recover back any such commission on assessments erroneously made, it provided by appropriation a certain sum to pay the Territorial half of the commission in each county and provided that the commission should be paid by the Territory and county only upon the amounts of licenses and taxes, except school taxes, actually collected. It provided a new means of protecting the territory and the counties from imposition by means of erroneous assessments as well as a new measure of the amount to be paid. The act of 1893 made a further change and introduced features of both the former acts. No change is made in the rate of commissions to be paid. Nothing is said about commissions on school taxes nor taxes erroneously assessed, but the provision is for commissions on all assessments approved by the county commissioners or board of equalization. Provision is further made that upon such approval of the assessment roll, seventy-five per cent, of the commissions shall become due and the remaining twenty-five per cent, of the same shall become due when the taxes are collected or shown to be uncollectible. Presumably the Legislature had found both the former acts inadequate, inexpedient or unsatisfactory and adopted some of the features of each in their latest expression. The act contains two salient features: First, to pay seventy-five per cent, of the commissions upon the approval of the assessment rolls; second, to retain the remaining twenty-five per cent, until the happening of certain contingencies. For what purpose is this retention of twenty-five per cent.? The only difficulty of answer arises, as we believe, from the misuse of the word “uncollectible.” The first contingency, the collection of the taxes assessed is plain and in harmony with the whole theory of the act. The last contingency, the showing that the taxes are uncollectible, antagonizes the whole theory of the act as expressed down to that provision. For can it be said that the Legislature intended by the act to make the commissions all payable in any event, but simply intended to retain twenty-five per cent, thereof until it should be first demonstrated that, by reason of erroneous assessments, or otherwise, the taxes were uncollectible? This would lead to a palpable absurdity. Or, can it be said that the Legislature, after providing the safeguard against erroneous assessments by retention of a portion of the commissions until the taxes are collected, deliberately abandoned that safeguard by inserting the second contingency? The supposition that it could be capable of such folly, if not fraud upon the public, is not to be indulged. The retention of a part of the commission, therefore, was not for the purpose that a showing be first made of the uncollectibility of the taxes and the use of the word “uncollectible” was not intended. What word was intended? As before stated the manifest purpose of the act was to pay assessors three-fourths of their commission upon approval of the rolls and the balance as soon as they were shown to be entitled to it. The collection of the taxes, mentioned in the first contingency, would be the best evidence of the right. But if the taxes were due and collectible, then the right to the remaining commissions would, within the spirit of the act, be perfect. This seems to furnish the key to the word which the Legislature intended to use. It did not intend to use the word “uncollectible,” but intended to use the word “collectible.” Consequently this act of 1893 must be read accordingly.
Statutes: construction: words erroneously used. This is what is sometimes called exceptional construction, and we are not unmindful of the dangers attending the exercise of such powers by the courts. But, properly understood, and exercised with due caution, it is not judicial legislation, but is simply a method of arriving at legislative intent defectively expressed, and the power and right are firmly established by authority. Thus in Arkansas the statute provided that the courts of a certain district should commence in a certain county on the fourth Monday in January and'July, in the next county on the third Monday after the fourth Monday in January and July, and so on through the list of counties. But in regard to one of the counties it provided that court should begin on the fifth Monday after the fifth Monday in January and July. The court says: “Renouncing the idea that the Legislature intended to do an absurd and unconstitutional thing, which would be the result of a literal construction, let us inquire if there can be plainly discovered any other fixed and certain intention.” The court then deduces from the scope and object of the statute that the mistake in using fifth instead of fourth is obvious, and further says: “It is very true, as a general rule of construction, that where the language of an act is plain and unambiguous, the court must give it effect, as it stands, or declare the law unconstitutional. But this rule is subject to much qualification, and does not apply to cases of plain clerical errors, where it is obvious that the Legislature did not intend to use the word as written, and it is further apparent what word they did intend. A mistake of this nature may be corrected by the courts, upon as sound principle as the mistake in a deed. It is not judicial legislation, nor judicial interference with the legislative will. It is in support of the legislative will, and wholly distinct from the reprehensible practice of warping legislation to suit the views of the courts as to correct policy. The only conditions to be observed in the exercise of the power of literal correction are, that the courts should be thoroughly and honestly satisfied of the legislative intent, irrespective of the policy of the act.” Haney v. State, 34 Ark. 263-269. An act of Congress provided that any person guilty of bribery, and who should be thereof convicted, should be liable to indictment, conviction and punishment. The court treated the word “and shall be thereof convicted” as sur-plusage and read the act as if they were not present.
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PARKER, J.
The questions raised by this record involve a construction of the several statutes making provisions for the fees of assessors. It appears that the first act provided for a commission of five per cent, on the amount of the tax roll when delivered to the tax collector, one-half to be paid by the county and one-half by the Territory, and provided for a recovery back of the commission paid upon all taxes found to have been erroneously assessed. The first change came by the Act of 1891. This act provided that assessors should be paid only on actual collections and school taxes were excluded from the burden of payment of commissions. It thus appears that the Legislature in 1891, adopted an entirely new plan and scheme for the payment of assessors. Instead of paying them five per cent, on the amount of the tax roll as delivered to the collector, and trusting to the future to recover back any such commission on assessments erroneously made, it provided by appropriation a certain sum to pay the Territorial half of the commission in each county and provided that the commission should be paid by the Territory and county only upon the amounts of licenses and taxes, except school taxes, actually collected. It provided a new means of protecting the territory and the counties from imposition by means of erroneous assessments as well as a new measure of the amount to be paid. The act of 1893 made a further change and introduced features of both the former acts. No change is made in the rate of commissions to be paid. Nothing is said about commissions on school taxes nor taxes erroneously assessed, but the provision is for commissions on all assessments approved by the county commissioners or board of equalization. Provision is further made that upon such approval of the assessment roll, seventy-five per cent, of the commissions shall become due and the remaining twenty-five per cent, of the same shall become due when the taxes are collected or shown to be uncollectible. Presumably the Legislature had found both the former acts inadequate, inexpedient or unsatisfactory and adopted some of the features of each in their latest expression. The act contains two salient features: First, to pay seventy-five per cent, of the commissions upon the approval of the assessment rolls; second, to retain the remaining twenty-five per cent, until the happening of certain contingencies. For what purpose is this retention of twenty-five per cent.? The only difficulty of answer arises, as we believe, from the misuse of the word “uncollectible.” The first contingency, the collection of the taxes assessed is plain and in harmony with the whole theory of the act. The last contingency, the showing that the taxes are uncollectible, antagonizes the whole theory of the act as expressed down to that provision. For can it be said that the Legislature intended by the act to make the commissions all payable in any event, but simply intended to retain twenty-five per cent, thereof until it should be first demonstrated that, by reason of erroneous assessments, or otherwise, the taxes were uncollectible? This would lead to a palpable absurdity. Or, can it be said that the Legislature, after providing the safeguard against erroneous assessments by retention of a portion of the commissions until the taxes are collected, deliberately abandoned that safeguard by inserting the second contingency? The supposition that it could be capable of such folly, if not fraud upon the public, is not to be indulged. The retention of a part of the commission, therefore, was not for the purpose that a showing be first made of the uncollectibility of the taxes and the use of the word “uncollectible” was not intended. What word was intended? As before stated the manifest purpose of the act was to pay assessors three-fourths of their commission upon approval of the rolls and the balance as soon as they were shown to be entitled to it. The collection of the taxes, mentioned in the first contingency, would be the best evidence of the right. But if the taxes were due and collectible, then the right to the remaining commissions would, within the spirit of the act, be perfect. This seems to furnish the key to the word which the Legislature intended to use. It did not intend to use the word “uncollectible,” but intended to use the word “collectible.” Consequently this act of 1893 must be read accordingly.
Statutes: construction: words erroneously used. This is what is sometimes called exceptional construction, and we are not unmindful of the dangers attending the exercise of such powers by the courts. But, properly understood, and exercised with due caution, it is not judicial legislation, but is simply a method of arriving at legislative intent defectively expressed, and the power and right are firmly established by authority. Thus in Arkansas the statute provided that the courts of a certain district should commence in a certain county on the fourth Monday in January and'July, in the next county on the third Monday after the fourth Monday in January and July, and so on through the list of counties. But in regard to one of the counties it provided that court should begin on the fifth Monday after the fifth Monday in January and July. The court says: “Renouncing the idea that the Legislature intended to do an absurd and unconstitutional thing, which would be the result of a literal construction, let us inquire if there can be plainly discovered any other fixed and certain intention.” The court then deduces from the scope and object of the statute that the mistake in using fifth instead of fourth is obvious, and further says: “It is very true, as a general rule of construction, that where the language of an act is plain and unambiguous, the court must give it effect, as it stands, or declare the law unconstitutional. But this rule is subject to much qualification, and does not apply to cases of plain clerical errors, where it is obvious that the Legislature did not intend to use the word as written, and it is further apparent what word they did intend. A mistake of this nature may be corrected by the courts, upon as sound principle as the mistake in a deed. It is not judicial legislation, nor judicial interference with the legislative will. It is in support of the legislative will, and wholly distinct from the reprehensible practice of warping legislation to suit the views of the courts as to correct policy. The only conditions to be observed in the exercise of the power of literal correction are, that the courts should be thoroughly and honestly satisfied of the legislative intent, irrespective of the policy of the act.” Haney v. State, 34 Ark. 263-269. An act of Congress provided that any person guilty of bribery, and who should be thereof convicted, should be liable to indictment, conviction and punishment. The court treated the word “and shall be thereof convicted” as sur-plusage and read the act as if they were not present. The court says “To suppose that Congress, while pretending to remedy such an evil, intended to pass an act which, by its own express words, was to be rendered wholly ineffective, under any possible circumstances, is to suppose Congress to be capable of deliberate folly if not of fraud upon the public.” The lien statute of Nevada provided that “All foundrymen and boiler-makers, and all persons performing labor upon, or furnishing machinery or boilers * * * or other materials for the construction * * * of any mill, * * * shall have a lien on such mill, * * * for such work or labor done on such machinery * * * or other material furnished by each respectively * * *.” The court says: “If this language be followed the right of lien is restricted to ‘work and labor done on such machinery * * * or other materials’ as the claimant may have furnished, and is withheld from persons furnishing labor without materials; and, also, from those furnishing the many articles of mining and milling supplies upon which no labor is bestowed by the vendor. The section, as it appears in the published statutes, and in the enrolled bills, is delusive. It purports to provide for two distinct classes of lien claimants, but in fact provides for only one class. No reason can be assigned why the pretended provisions for ‘persons performing labor’ should have been nullified by the inconsistent provision succeeding, nor for the senseless discrimination in favor of those laboring upon materials furnished by themselves, and against those laboring upon materials furnished by others. If the intention of the Legislature had been to change the law it is reasonable to presume that language fairly expressive of such intent would have been employed, and so radical a change would not have been brought about by the simple changing of the word ‘or’ to ‘on.’ Instead, however, of fairly expressing a change in the law, the phraseology of the statute, unless attributable to clerical mistake, is intentionally misleading. No intention to mislead can be indulged, and we conclude that the change arose through a clerical mistake, and should be disregarded.” Gould v. Wise, 18 Nev. 253, 261, 262; see also Endlich Int. Stats., sections 295, 305; Sutherland Stat. Con., section 260; 23 Am. and Eng. Ency. Law, 421, citing numerous cases, most of which we have examined and find to support the principle invoked.
Statutes: repugnancy: repeal. The next question presented is in regard to commissions on taxes levied for the school fund. As before stated,. the act of 1893, contains no repealing clause. Of course, if the later act contains provisions utterly repugnant to those of former acts, so that they can not stand together, the later act, is equally effective by way of repeal with or without the repealing clause. The absence of the repealing clause, however, indicates an intention on the part of the Legislature not to interfere with existing legislation and imposes upon the courts, to a degree perhaps greater than if there were a repealing clause, the duty to construe the later act with the former legislation so that both may stand together and thus arrive at the legislative intent. Suth. Stat. Con., section 147.
We see nothing in the act of 1891 to indicate that it expired by limitation at the end of the two years covered by the appropriation. Consequently the provisions therein that exempted the school fund from payment of commission was in force at the time of the passage of the act of 1893, and is still in force unless repealed thereby. Reading these two acts together it seems clear that the objects of each are identical. The object of each act is to designate the assessments upon which commissions are to be paid, the time and extent of payment of the same. The latter designates all assessments, the former all except those for the school fund. There is irreconcilable conflict between the-two provisions and, the latter prevailing, the exception in favor of the school funds in the former must be held to be repealed by implication.
From the foregoing views it appears that appellant has no right of recovery for commissions on taxes not shown to be collectible, but has a right of recovery for taxes collected for school purposes.
The cause will be remanded with instructions to set aside the judgment and to proceed in accordance herewith, and it is so ordered.
Mills, C. J., and McFie, J., concur; Crumpacker and Leland, JJ., did not sit.