St. Louis, Iron Mountain & Southern Railway Co. v. State

111 S.W. 260, 86 Ark. 343, 1908 Ark. LEXIS 417

Opinion

Hart, J.,

(after stating the facts). The railway .company contends that the information was filed under the act of April 23, 1903, and that, as the act exempts the counties of Benton, Washington and Crawford from its provisions, it is unconstitutional for the reasons enumerated in its plea. The act of April 23, 1903, is almost an exact copy of the act of March 31, 1899, with the exception of the clause exempting the counties above mentioned. The act of April 23, 1903, does not in express terms repeal the act of March 31, 1899, but only repeals all acts or parts of acts in conflict with it.

The general rule on that subject is as follows:

“Where there is, by a general clause, a repeal of all acts and parts of acts inconsistent with the statute, and it is apparent that the repealing statute is to be substituted for the one repealed, the unconstitutional character of the repealing statute will also render void the repealing clause. And on the same principle a prior statute will not be impliedly repealed by inconsistency with a subsequent unconstitutional one.” 26 Am. & Eng. Enc. of Law, 717.

In the case of Union Saw Mill Co. v. Felsenthal, 85 Ark. 346, it is expressly held that an unconstitutional statute which in general terms repeals all acts in conflict with it will not be held to repeal a prior valid act in conflict with it. Hence, conceding, without deciding the question, that the act under consideration is unconstitutional, it leaves in force a valid act on the same subject.

Judgment affirmed.