#### Moncus *v.*Raines.

4-7889

194 S. W. 2d 1

Opinion delivered April 29, 1946.

*Boyd 'Tackett*and *Tom Kidd,*for appellant.

J. *H. Lookadoo*and *Agnes F. Ashby,*for appellee.

BobiNS, J.

The question posed by this appeal is: Did Act No. 314 of General Assembly of Arkansas, approved March 15, 1939 (fixing venue in actions for personal injury or death, in the county of plaintiff’s residence or in the county where the injury occurred), repeal or amend § 1387 of Pope’s Digest (restricting venue, in certain actions against public officers, to the county in which the cause of action arose), so as to permit bringing in the county of plaintiff’s residence a suit for damages against an officer for an assault, committed by him while making an arrest in another county?

*31Appellant, Claude F. Moneas, a minor, resident of Pike county, while at Amity, Clark county, was arrested by appellee, Douglas Raines, marshal of the town, and deputy sheriff of Clark county. While making the arrest appellee struck said appellant, as appellants averred, without cause; and to recover damages for the alleged wrongful assault appellants brought this suit in Pike county circuit court, appellee being served with summons in Clark county. Motion to quash return on the summons, on the ground that the venue of the action was in Clark county, was filed by appellee. The lower court sustained the motion and dismissed the suit. This appeal followed.

Section 1387 of Pope’s Digest is as follows: “. . . Actions for the following causes must be brought in the county where the cause, or some part thereof' arose: . . . Second. An action against a public officer for an act done by him in virtue or under color of his office, or for a neglect of official duty.”

By § 9799 of Pope’s Digest it is provided that “the town marshal of incorporated towns shall be the principal ministerial officer of the corporation, and shall have the same power that sheriffs have by law, and his jurisdiction shall be coextensive with the county for offenses committed within the limits of the corporation. ’ ’ Appel-lee was therefore a “public officer” within the meaning of § 1387 of Pope’s Digest, quoted above.

We have held that misconduct by a peace officer of the kind complained of in the case at bar is embraced within the provisions of the quoted portion of § 1387, *supra,*and that actions for damages therefor must be brought in the county where the cause of action or some part thereof arose. *Edwards*v. *Jackson,*176 Ark. 107, 2 S. W. 2d 44.

The Supreme Court of Montana, construing a statute almost identical in language with our statute (§ 1387, Pope’s Digest) said in the case of *State ex rel. Stephens*v. *District Court,*43 Mont. 571, 118 P. 268, 24 Ann. Cas. 1912C, 343: “It is contended that the tortious acts (alleged improper treatment of a prisoner by a warden) *32complained of were not committed by tbe defendant ‘in virtue of bis office’; but we tbink there is no force in tbe suggestion. It could only bave been by reason of tbe fact that be was warden that opportunity was 'given to commit tbe alleged acts. If be could commit only legal acts ‘in virtue of bis office,’ plaintiff would bave no cause of complaint. We tbink the Legislature intended that an action against a public officer for a fort alleged to bave been committed by him in tbe exercise of bis authority-as such officer should be tried in tbe county where tbe act was done.”

Section 1 of Act 314, approved March 15, 1939, entitled “An Act to Fix the Venue of Actions for Personal Injury and Death,” commonly called tbe “Venue Act,” provides: “All actions for damages for personal injury or death by wrongful act shall be brought in tbe county where tbe accident occurred which caused tbe injury or death or in tbe county where tbe person injured or killed resided at tbe time of injury, and provided further that in all such actions service of summons may be bad upon any party to such action, in addition to other methods noiv provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at tbe time of such service. ’ ’ And § 2 of the same Act is as follows: “This act shall not repeal any provision for venue of actions except such as are inconsistent herewith and all laws and parts of laws in eonfbct herewith are repealed.”

Appellants argue that this later Act repeals tbe above quoted,sub-division of § 1387 of Pope’s Digest, which was a part of tbe Civil Code adopted in 1868, in so far as tbe venue of actions such as the instant case is concerned, and that this suit, since it was for damages for personal injury, was properly brought in Pike county, tbe county of residence of tbe injured party.

Tbe “Venue Act” did not expressly repeal the said sub-division of § 1387 of Pope’s Digest, and, if such a repeal was effected, it must bave been done by implication. In fact, § 2 of that Act provides that no existing *33laws as to venue, unless inconsistent with the new Act, should he repealed.

Repeals by implication are not favored, and before a court may properly hold that a later Act repeals an earlier law it must appear that there is 'such a conflict between the two that both cannot stand, and, therefore, the later Act, being the last expression of legislative will, must prevail, or it must appear from the later Act that in enacting it the Legislature intended to take up and deal with all matters embraced in the purview of the prior Act.

In 50 Am. Jur., p. 542 *et seq.,*the rule is thus stated: “Repeals by implication are not favored,- and there are many instances- in which particular statutes are held not to be repealed by implication. As a general rule, the legislature, when it intends to repeal a statute, may be expected to do so in express terms or by the use of words which are equivalent to an express repeal, and an intent to repeal by implication, to be effective, must appear clearly, manifestly, and with cogent force. The implication of a repeal, in order to be operative, must be necessary, or necessarily follow from the language used. . . . The courts will not hold to a repeal if they can find reasonable ground to hold the contrary. . . .”

On page 548 of the same volume (50 Am. Jur.) it is said: “The criterion by which to determine whether there is an implied repeal, is whether or not there is irreconcilable conflict between an earlier and a later statute. . . . Indeed, it must appear that a later act is contrary to, or inconsistent with, a former act in order to justify the conclusion that the first is repealed. Since laws are presumed to be passed with deliberation, and with full knowledge of existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Except where an act covers the entire subject-matter of earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the sub-*34jecf, a later act does not by implication repeal an earlier act unless there is such a clear, manifest, controlling, necessary, positive, unavoidable, and irreconcilable inconsistency and repugnancy, that the two acts cannot, by a fair and reasonable construction, be reconciled, made to stand together, and be given effect or enforced concurrently.”

Mr. Endlich in his volume on Interpretation of Statutes, § 113, said: “One of these presumptions is that the Legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms, or by unmistakable implication; or, in other words, beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because, in their widest and perhaps natural sense, they have that meaning, would be to give them a meaning in which they were not really used.”

In the case of *Rightsell*v. *Carpenter,*188 Ark. 21, 64 S. W. 2d 101, we said: “Repeals by implication are not favored in the law. *Houck*v. *State,*166 Ark. 613, 267 S. W. 127; *State*v. *White,*170 Ark. 880, 281 S. W. 678; *Mays*v. *Phillips County,*168 Ark. 826, 272 S. W. 62. This court held in *Babb*v. *El Dorado,*170 Ark. 10, 278 S. W. 649, that ‘'the repeal of any law merely by implication is not favored-and the repeal will not be allowed unless the implication is clear and irresistible.’ Again, this court held in *Gilliland Oil Company*v. *State ex rel. Attorney General,*171 Ark. 415, 285 S. W. 16, that ‘the presumption is against repeal of statutes by implication’.”

“A law passed on one subject does not by implication suspend the operation of a law on a different subject, without mentioning the latter law.” (Headnote 4), *McDonald*v. *Wasson,*188 Ark. 782, 67 S. W. 2d 722.

There is no necessary or irreconcilable conflict between the two laws here involved.

*35In the first the Legislature was dealing with the venue of snits to enforce liability for official misconduct of officers. Such misconduct may consist of many things, such as (in case of peace officers) failure properly' to serve legal writs, false imprisonment, and, as in the. case at bar, the wrongful or excessive use of force in making an arrest. The Legislature determined that such actions against officers, for obvious reasons of public policy, ought to be brought in the county where the cause of action originated. There is no invincible repugnancy between the two laws. Both may stand and be permitted to operate within their respective orbits, as prescribed by the Legislature.

Nor can it be said that the later act showed intention by the legislature to take up and deal with the entire subject-matter of the prior statute. The former statute dealt with the venue of suits against public officers for all kinds of official misconduct, whereas the later act fixed venue in only one kind of action, that for personal injury'and death. In a discussion of the question of repeal of a prior statute by a later act indicating legislative intent to deal with the entire subject-matter, it is said in Corpus Juris, vol. 59, p. 920: “In order to effect a • repeal by implication on this ground it must appear that the subsequent statute covered the whole subject-matter of the former one, and was intended as a substitute for it. ”

We conclude that the lower court correctly construed the law. Its judgment is, therefore, affirmed.

Smith, J.,

concurring. The opinion in the instant case is perfectly sound, but it is in irreconcilable conflict with the opinion in the case of *Chicago, R. I.*& *Pac. Ry. Co.*v. *Bone,*203 Ark. 1067, 160 S. W. 2d 51, to which no reference is made. Convinced as I am, that the opinion in the instant case is correct, although in conflict with the opinion in the railroad case, supra,-1 concur in the opinion which correctly states the law.

When Act 314 of 1939 was passed, § 1387, Pope’s Digest, was in effect, just as § 1394, Pope’s Digest, was in effect. Section 1387 is the section which, as the ma-' *36jority say, localizes actions against a public officer for acts done in virtue of, or under tbe color of bis office, and tbe majority say it was no,t repealed by Act 314. Tbe argument leading to that conclusion is sound and decisive, but it cannot be reconciled with tbe railroad case, *supra,*which held that § 1394, Pope’s Digest, localizing actions against railroads bad been repealed, as being in conflict with Act 314.

In tbe dissenting opinion in tbe railroad case, *supra,*tbe question was asked, “Has this section, 1165, C. & M. Digest, now appearing as § 1387, Pope’s Digest, been repealed by Act 314; and, if so, where are we in the matter of jurisdiction as to venue of personal injury accidents?” A distinction has been made between tbe railroad case and tbe instant case, where no difference between tbe two cases exists. Tbe railroad case, like this case, was a suit for a personal injury. Certainly assaulting and beating another is a personal injury. Section 3, Cb. Torts, 52 Am. Jur. 362.

In tbe majority opinion in tbe railroad case, it is said that: “It appears to us that this language (of Act 314) is all inclusive. 'All actions for damages for personal injury or death by wrongful act’ means just what it says, and that is that all personal injury actions shall be brought in one of tbe tym counties named. .(That is, in tbe county where tbe plaintiff resides, or where tbe injury occurred.) It does not say 'all actions, except as against railroad companies,’ but 'all actions,’ and we have several times so held.” Neither- does Act 314 say “all actions except actions against public officers.”

It appears obvious to me that both § 138-7, Pope’s Digest, and § 1394, of that digest were repealed by Act 314, or neither was repealed by that act. Tbe opinion in the instant case is conclusive that § 1387 was not repealed, and is equally conclusive that § 1394 was not repealed. It is certain that neither section was expressly repealed, and if either was repealed at all it was by implication, and tbe opinion in tbe instant case shows that this was not done.

*37It is inconsistent to bold that § 1394 was repealed bnt that § 1387 was not. Being of tbe opinion that neither section was repealed, I must, of course, concur in tbe bolding that § 1387 was not repealed. Tbe opinion in tbe railroad case is unsound and must sooner or later .be overruled, if we adhere to tbe opinion in tbe instant case.