Welch Stave & Mercantile Co. v. Stevenson

Wood, J., (after stating the facts). Section 848 of Kirby’s Digest provides as follows: “The president and secretary of every corporation organized under the provisions of this act shall annually make a certificate showing the condition of the affairs of such corporation, as nearly as the same can be ascertained, on the first day of January or of July next preceding the time of making such certificate, in the following particulars, viz: the amount of capital actually paid in; the cash value of its real estate; the cash value of its personal estate; the cash value of its credits; the amount of its debts; the name and number of shares of each stockholder; which certificate shall be deposited on or before the fifteenth day of February or August with the county clerk of the county in which said corporation transacts its ¡business, who shall record the same in a book to be kept by him for that purpose.” Section 838 requires “the certificate to be made under oath or affirmation by the person subscribing same.” Section 859 makes the president or secretary who shall neglect or refuse to comply with the provisions of 848 jointly and severally liable to an action founded on the above statute for all debts of such corporation contracted during the period of any such neglect or refusal. Appellees contend that, inasmuch as the complaint shows that the corporation was organized as a mutual insurance company for the purpose of insuring property against fire, therefore the requirements of section 848, supra, do not apply, and that, instead thereof, the provisions of section 4347 are applicable. It is alleged in the complaint, and admitted by the demurrer, that the insurance corporation named in the complaint was organized under the provisions of chapter 31 of the general incorporation act, subdiv. 2, Kirby’s Digest, for “manufacturing and other business corporations.” The Legislature in express terms having made it the duty of the “president and secretary of every corporation organized under the provisions” of that act to file the certificate specified in section 848, supra, it is not within the province of the courts to say that they did not intend what they have expressed in such plain terms. In such case there is no room for construction. Nothing remains but to give effect to the law unless it has been repealed by some subsequent enactment. Section 4349 of Kirby’s Digest, supra, (act of May 23, 1901), provides: “All mutual insurance companies of life, fire, etc., or other kind of mutual insurance organizations, organized under the laws of this State, shall annually file with the Auditor of State during the month of February -a full and complete sworn statement of its financial condition on the 31st day of December next preceding. Such statement shall plainly exhibit all real .and contingent assets and liabilities and a complete itemized account of income and disbursements during the year.” Unless the section just quoted repeals 848, it is not repealed. There is in the above no express repeal of section 848, and, applying the familiar rules that obtain, and that have been often announced by this court, with reference to repeals by implication, we are of the opinion that section 4349 does not repeal section 848. The two sections are not in irreconcilable conflict, nor can it be said that the provisions' of section 4349 — the later act — cover the whole subject of section 848 — the former act— and that the last enactment embraces new provisions in addition to the subject covered by the first, showing plainly an intention that the last should be a substitute for the first. Mr. Sutherland expresses the rule for repeals by implication as follows: “There must be such a manifest and total repugnance that the two enactments cannot stand. The earliest statute continues in force unless the two are clearly inconsistent with, and repugnant to, each other, or unless in the later statute some express notice is taken of the former, plainly indicating an intention to repeal it; and when two acts are seemingly repugnant, they should, if possible, be so construed that the latter may not operate as a repeal by implication of the former.” Sutherland, Statutory Const. (2 Ed.), p. 465. To the same effect, see English v. Oliver, 28 Ark. 325; Coats v. Hill, 41 Ark. 151; Chamberlain v. State, 50 Ark. 137; State v. Kirk, 53 Ark. 337. We deem it unnecessary to parallel the two sections in comment to show that they are not repugnant. They are set forth in the opinion, and the mere reading of them will discover that they may be readily harmonized. Section 848 was passed for the information and benefit of creditors of the corporation. Section 4349 was for the purpose of giving, primarily, information to the Auditor, and to enable 'him to determine whether the agents of such organization are entitled to solicit business for same, and as to whether such agents are entitled to a certificate showing that they have authority to solicit.business. See McKee v. Rudd, 121 S. W. 312. In iso far as the statements required by section 4349 may be of benefit to creditors, it is in this respect not repugnant but supplemental to section 848. The two sections were passed for a different purpose, as will be readily seen, and there is nothing to indicate that the last enactment was intended as a substitute for the first. As repeals by implication are not favored, it is for the Legislature, and not for the courts, to say that section 848 has no application to mutual insurance companies. Thus far the Legislature has not so declared. The trial court erred in sustaining the demurrer to the complaint. The judgment is therefore reversed, and the cause is remanded with directions to overrule the demurrer.