I am unable to subscribe to the application of the principle of repeal by implication as made by Mr. Justice NORTH. His opinion is based upon the theory that the judicature act of 1915 (Act No. 314, Pub. Acts 1915) is a general law and therefore section 117 of chapter 2 thereof, being 3 Comp. Laws 1929, § 13718 (Stat. Ann. § 27.241), is repealed by Act No. 199, § 5, Pub. Acts 1923 (1 Comp. Laws 1929, § 3369 [Stat. Ann. § 6.715]).
Section 13718, 3 Comp. Laws 1929, provides that when a vacancy occurs in the office of a circuit court commissioner, the vacancy shall be filled by appointment of the governor, while 1 Comp. Laws 1929, § 3369, provides for the manner of filling vacancies in county offices.
In Attorney General, ex rel. Owen, v. Joyce, 233 Mich. 619, we announced certain rules on repeal by implication. We there said:
"The theory of the principle of repeals by implication is that the latest expression of the legislative *Page 699 will should control. The question therefore is one of legislative intention. When the intention of the legislature can be ascertained, it is the duty of the courts to give it force and effect.
"But,
"`The presumption is always against the intention to repeal where express terms are not used, and the implication, in order to be operative, must be necessary.' 25 R.C.L. pp. 918, 919.
"`Repeals by implication are not favored and will not be indulged in if there is any other reasonable construction.' 25 R.C.L. p. 918.
"`The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold the contrary.' Michigan Telephone Co. v. City of BentonHarbor, 121 Mich. 512 (47 L.R.A. 104)."
Mr. Justice NORTH relies upon Attorney General, ex rel.Whitcomb, v. Lau, 256 Mich. 13, as controlling of the principal issue involved in the case at bar. The Lau Case held that Act No. 199, Pub. Acts 1923, did repeal by implication the prior act providing for filling vacancies in the office of county treasurer. Justice NORTH'S opinion in the case at bar classifies the provisions in the judicature act in the same category with the "general act" involved in the Lau Case and in a different category from the "special legislation" (State highway law) involved in the Joyce Case.
In the Joyce Case, supra, we said:
"The act which gave the board of supervisors the power of appointment is a part of the general highway law of the State. It is found in section 8 of Act No. 283, Pub. Acts 1909. This act contains a complete and comprehensive system of laws relating to highways. It touches no other subject of legislation. It is an expression of the legislative will in establishing a system under which the State could more effectively carry on an intensive *Page 700 program for the building of roads. In furtherance of this policy,' the act created county road commissioners to be appointed by the supervisors in the first instance, and thereafter whenever vacancies occurred.
"Can this special legislation be repealed by inference alone, by the subsequent enactment of a statute that does not pertain to highways, and contains no express language indicating its intention to repeal any part of the highway law?"
In my opinion, the act which gives the governor power of appointment is a part of the law governing matters pertaining to the administration of justice. The act contains a complete and comprehensive system of laws relating to courts. It touches no other subject of legislation. It is an expression of the legislative will in establishing a system under which the State can more effectively administer justice. The power to fill vacancies in the office of circuit court commissioner by the governor was retained in the act as a part of its general plan for the administration of justice.
Repeals by implication depend upon the intent of the law-making body and as was said by Mr. Justice NORTH in the Lau Case,supra: "In interpreting and construing statutes, the primary rule is to ascertain and give effect to the intention of the legislature." The appointment of circuit court commissioners by the governor to fill vacancies has been the law in Michigan for many years. If the legislature intended to repeal such an important law, it is reasonable to suppose that its intention to do so would have been expressly stated and not left to inference and conjecture. It follows that the action of the probate judges and county clerk of Genesee county in appointing defendant Showley to the vacancy in the office of circuit court commissioner of Genesee *Page 701 county was illegal and as he is illegally holding the office, judgment of ouster should be entered. No costs, as a public question is involved.
BOYLES, C.J., and WIEST and BUSHNELL, JJ., concurred with SHARPE, J.