Enloe v. Reike

STONE, J. Where a summary remedy, given by statute, is resorted to, the statute must be strictly followed in all matters of substance. In such cases, the record must show affirmatively every material fact, necessary to entitle the party to this summary remedy. — Conolly v. Ala. & Tenn. R. R. Co., 29 Ala. 373; Jones v. Brooks, 30 Ala. 588; 2 Brickell’s Digest, 464 The present proceeding is summary, instituted under sec-, tion 930 of the Revised Code. That section provides a remedy against the county treasurer who fails, on demand, “ to pay an allowed claim against the county, when there are funds in the treasury to pay the same.” The motion must be made “ in the name of the party to whom the claim is payable, his legal representatives, or assigns.” All the claims sought to be collected in this proceeding are payable and allowed to parties other than Mr. Enloe, and they were [504] transferred without indorsement, by mere delivery. Is this an assignment under the statute ? When commercial paper, payable to bearer, is transferred by delivery, both the right of property, and the right to sue, pass thereby to the transferree; and this is frequently called an assignment of such chose in action. But this has grown up under the usages of commerce, and is scarcely a correct use of the term. Assignment proper is “ a transfer by writing, as distinguished from one by delivery.”- — Bouvier’s Law Dictionary, tit. Assignment; Andrews v. Carr, 26 Miss. 577. When employed in the connection here found — “ the name of the party to whom the claim is payable, his legal representatives, or assigns” — we think we would do great violence to the language employed, if we held that it means any thing less than a transfer in writing. The allowed claims against the county are, in no sense, commercial paper; nor even contracts for the payment of money, under section 2523 of the Revised Code. The judgment of the Circuit Court must be affirmed, on this ground, if no other. It is said in the argument, that this proceeding was instituted under the act “for the relief of the poor of this State,” approved December 15,1868. — Pamph. Acts, 414. The motion made, and the notice served, are, as pleadings, alike fatally defective under that statute. The very humane and liberal provision therein made, is not broad enough to cover all cases of pauperism in each county. It provides for only two classes : “paupers living on poor farms,” and paupers living “at the public charge.” Only bills for support and maintenance of persons coming within one of these classes are “preferred claims.” To assert the preference accorded to such claims, the notice, motion, or complaint filed thereon, should aver that the bills sought to be collected fall within one of the above classes, designating which; or, partly within one, and partly within the other, as the ease may be; and the proof, to justify a recovery, must sustain such averment. Further, if there be no issue formed, and trial by jury, the record must affirm that such proof was made, and such facts found by the court. In such cases, intendments of matters of substance are not indulged, beyond the recitals of the record. — Anderson v. Br. Bank Mobile, 10 Ala. 375 ; Bates v. P. & M. Bank, 8 Por. 99; Allums v. Hawley, 8 Ala. 584 ; Reid v. P. & M. Bank, 3 Ala. 712. Here we might close this opinion; but, inasmuch as the remaining question presented is one of great practical importance, we prefer to decide it. The question is, does the act “for the relief of the poor of this State” make the bills therein provided for preferred claims over those provided for [505] in the act “to provide pay for the grand and petit jurors and court of county commissioners of the different counties in this State,” approved February 19th, 1867. — Pamph. Acts, 700 ; Bev. Code, § 926, subd. la. That act mates it the duty of the county treasurers “to set apart, out of the cash revenues of their respective counties, from time to time, a sufficient fund to pay the grand and petit jurors of their respective counties, and the members of the respective courts of county commissioners at the end of their services as such, and also a sufficient sum to furnish their respective counties with stationery.” The act “for the relief of the poor,” supra, is later in date than the act last copied. The law does not favor the repeal of statutes by implication ; and only declares such repeal, when all efforts at reconciliation have failed. Only when there is a real repugnance in the provisions, does the earlier enactment yield to the later; and if part of the provisions of an older statute can be given effect to, without violating any of the provisions of the newer one, the repeal by implication is only partial, and pro tanto. — 2 Brick. Dig. 463, §§ 44, 45; Sedgw. Oon. and Stat. Construction, 97 et seq. So, a general affirmative statute does not repeal a prior particular statute. Oeneralia specialibus non derogant.- — Sedg. on Con. &c., 98, note a. ■ Applying these rules to the statute before us, we do not think the act of December 15, 1868, repealed section 926, subd. la, of the Bevised Code. Each has an ample field of operation, without trespassing on the domain of the other. The one requires a fund to be set apart from the cash revenues of the county, for purposes specified. This need not necessarily consume the whole fund, but may leave a large fund for general county purposes. The act of 1867 has an ample field, in securing the necessary, indispensable wants of the county, in keeping up its organization, and supplying the means of its civil administration; wants, nay, necessities, in which the whole people are concerned; necessities to the very existence of their organized being. "We will not suppose, in the absence of a clear expression of the legislative will, that it was their intention to subordinate .these most vital wants, even to tbe claims of the poor, which certainly stand high on the roll of duties the government owes to the citizen. The one is a necessity — the very life-blood of the body politic; the other, a sacred duty, only a title less binding in its obligations. Over all common debts of the county, the great mass of county liabilities, “bills for the support and maintenance of the paupers” are “preferred claims.” This leaves a broad field for the act of December 15th, 1868, to operate upon. Judgment of the Circuit Court affirmed.