The Birmingham age-herald., 1907-10-26
NO NEW TRIAL IN
 COMMISSION CASE
JUDGE LANE OVERRULEs MOTION FOR NEW TRIAL IN QUO WAR; RANTo INSTITUTED AGAINST NEW POLICE COMMISSION.


 rendered his decision overruling the mo- ton for new trial in the quo warranto proceedings instituted by J. J. Saltsman, as relator. against George B. Ward, John B. Weakley and F. B. Yielding, thereby sustaining his former decision in favor of the new police commission.
 The following is the decision in full: State of Alabama, ex rel, Saltsman vs
 John B. Weakley. ct als. In the circuit
 court of Jefferson county.
 On the 17th day of October a judgment was rendered in the above cause, sus- taining demurrers to the information, and the matter now comes up for hearing upon motion for new trial, the same being based mainly upon the effect and operation of the municipal code adopted In the closing days of the legislature the provisions of said code not having been brought to the courts attention in the arguments upon said demurrers It is now contended by reator's counsel that the municipal code repealed the act of March 7, 1907, under which the new po- lice commission is acting. It is argued 'that the act of March '. 1907, is a penal statute, and hence, that it did not go into effect until 30 days after the legis- lature adjourned, the same time that the municipal code Is claimed to have gone into effect, and that the latter repealed the former l do not think that the act of March [ 1907, in it's entirety Is a penal statute. It is only in the last section that any penalty is imposed, and such penalty applies not to the whole act but only to certain inhibitions named in the last section.
 It is thus to be differentiated from the case of Ross vs. New England Mortgage Security company, 101 Ala, 362. So, I think said act went into effect immediate ly upon its approval, but the commits sioners would have not have been liable to the penalty, except for offenses com mitted 30 days after the adjournment of the legislature. If this construction is correct, then the act of March T. 1907, repealed the former statutes immediately upon its approval. And as no provision is made in the municipal code for the installation of the commissioners except the Mayor), there would be a hiatus in the police commission. so far as Bir- mingham is concerned, and said city would for a time be without police de- partment. Before putting such con- struction upon the acts of the legisa- ture, it ought to be perfectly manifest that such a result was contemplated and intended.
 In the case of Chicago M and St P Ky. Co. vs. United States, 127 U. S., 4O9, hn holds that when there are two acts relat- ing to the same subject matter, effect Is to be given to both, if practicable, and that later statute will not be held to repeal a. former one merely because some of the provisions are the same, unless it is clear that the later statute was intended as a substitute for the former. In the case of Commonwealth, ex rel. vs De Camp, 35 Atlantic Reporter, sos, it is held that If the objects of the two stat utes are not the same, both must stand: that it is not enough that there is a discrepancy between different parts of the system of legislation on the same general subject but there must be such a manifest and total repugnance that the two enactments cannot stand. Now why is it that the act of March ', 19O7 and the municipal code cannot co-exist? It is pre- sumed that acts are passed with a knowl- edge of existing legislation, and in desig- mating police commissioners for all cities of 25,00o population or more, the legis- lature may well be held to have intended that this should apply to cities in coun- ties of less than 125,000 population. This would leave the act of March r. 1907 In force, and comport perfectly with the construction of our supreme court in the case of City Council of Montgomery vs. 3A-5. A general law had been passed tax ing building and loan associations oper- atng in the state s2o0, and exempting them from all other taxes or licenses At the same session an act was passed au- thorizing the City council of Montgomery to enforce license upon such associa- tions operating in Montgomery. An ordi- nance was passed requiring the National B. X l.. association to pay a license tax. Justice Mcclellan in a we'll considered case, held that the act authorizing the City Council of Montgomery to license building and loan associations referred merely to such associations as operated in Montgomery alone, and that it did not apply to associations doing business in Montgomery county and also in other counties of the state, and he quotes from the Encyclopedia of Law as follows: The question of implied repeal is one of n- tention and where two acts are passed at the same session of the legislature on the same subject, it shows an intent that one is not repealed by the other. but that they are to be construed together" And he also quotes from the New York court of appeals as follows: Ut is hard ly to be presumed that the legislature would repeal an act passed but 14 days before; and if they had intended to do so, they would have probably said so in some appropriate language. and would not have left it to mere inference" And Justice Mcclellan adds: "The general principle is based and these adjudications proceed. upon the theory that the inten- ton of the law makers must be effect uated and the courts, to that end, must. if possible. find field for the operation of both statutes so that both can stand. and to this end also, when the statutes are passed at the same session of the legislature. they must be construed to- gether. the presumption being in such cases that the legislature intended that both should stand, and that the earlier should not be repealed by the later" And in Woods Vs. Supervisors. 136 N. Y., 403. the apnellate court of New York say: