on rehearing.
A rehearing was granted in'this case, and the statement of the case, together with the rulings, has been rewritten.
No elaboration of the syllabi is deemed necessary, except what is said hereinafter. We think the only close point in the case is whether the provisions' in the Code, §§ 631, 724, are operative in counties where the alternative road law has been adopted. As ruled in the sixth headnote, section 640 is not repealed by adoption of the alternative law. Does it necessarily follow that section 631, in so far as it provides for “concurrence of a majority of-the road commissioners,” is not repealed? We do not think it a necessary logical conclusion. Section 640 provides the method of establishing “a new road or alteration in an old road.” This requires the acquisition of additional land, and the determination *711of whether such a road would be of “public utility.” In such circumstances the judgment of three commissioners residing as near where such road is intended to pass as possible seemed advisable to the legislature. At least the statute so required. In section 631, a statute passed in 1870 before the enactment of the alternative road law, it was provided that “The several ordinaries of this State, with the concurrence of a majority of the road commissioners of their respective counties, shall designate” the class of the road, in their discretion. This, it will be observed, required all of the district commissioners of the county, and it meant the commissioners provided for in section 724 and appointed by the ordinary under section 725, whose duties are specified in section 729. At the time when the act of 1870 was passed, jurisdiction over road matters being in the ordinaries, it was natural and wise to provide local assistance for him in determining local requirements. Subsequently the constitution (Civil Code (1910), § 6548) authorized the creation of county commissioners; and in the alternative road law it was provided that such commissioners “shall have the sole right to lay out, open, change, or discontinue public roads therein and the sole management of the working of said roads.” How can they have such sole power, if they must appoint district road commissioners, and then when a road is to be classified they must secure the concurrence of a majority of all district commissioners in the county? We think this is not only illogical but directly contrary to and inconsistent with the legislative intent and statute of the General Assembly. We are not unmindful of what was said above with respect to section 640, and the decisions that hold that section unrepealed by the alternative road law. The distinction may be narrow, but such former decisions are not controlling; and if the reasoning in either case is doubtful, we think the doubt applies to the former, and not to the ruling in the present case. It follows that we adhere to the judgment of affirmance heretofore rendered.