This is a question of legislative interpretation by a court whose opinion is not conclusive and is only effective until the Supreme Court of the United States shall speak. It is our province to make the interpretation which we think will accord with that of the court which has final authority. As we undertake that task, there are only two considerations to guide us. One is the trend of judicial opinion manifested in that court of final jurisdiction, *Page 30 or two, in the absence of any clear direction from that source, to make the interpretation as we think is consistent with the rules and principles which are usually applied to legislative construction. We remember that it is not our province to make statutory law, but to interpret the meaning of the legislative authority which enacted it, and that only when its meaning is ambiguous.
This writer wishes to say that the opinion written for this Court on this question in Duggar v. Mobile Gulf Nav. Co.,224 Ala. 359, 140 So. 614, was on an assumption which was not well supported. I thought, without looking, and without argument to a different effect made in the case, or referred to in the opinion of the Court of Appeals in the same case then under review (140 So. 611),1 that the U.S.C.A. of 1926 was an authoritative statement of the laws of the United States in effect at that time. But it now appears that such was not the effect of that Code. But in its adoption it is provided that "No new law is enacted and no law repealed. It is prima facie the law. It is presumed to be the law. The presumption is rebuttable."
In Title 46, section 544, there is carried that feature of the act of 1874 which provides that none of the provisions of the act of 1872 shall apply to the coastwise seamen except as stated. And in the same title, section 601, there is carried the act of 1915 applicable to all seamen as when it was then enacted, but with the addition of fishermen. The act of 1915 did not refer to that of 1874, and did not expressly repeal it, as it did the act of 1872 by repealing section 4536, Revised Statutes. It could have done so by sufficient implication. I think it is doubtful and not the necessary effect of the act of 1915. We note that the act of 1874 did not re-enact the act of 1872 with an amendment that it shall not apply to coastwise seamen. It was not in the form of an amendment. It was an original act whereby none of the provisions of the act of 1872 should apply to coastwise seamen. This was permissible, though if an Alabama act were thus set up it would violate section 45 of the Alabama Constitution.
The act of 1915 did not refer to that of 1874, and did not expressly repeal any feature of it, though it did repeal the act of 1872, as it re-enacted it. It took the provisions of the act of 1872 and added fishermen and re-enacted it as thus amended. I think it could well be if Congress had intended to repeal the act of 1874, it would have been so expressed in exact terms or certainly in general terms. But there was no general repealing clause and no reference to the act of 1874. I fully recognize the principle that where a "later act covers the whole subject of earlier acts, embraces new provisions, andplainly shows that it was intended not only as a substitute for the earlier acts but to cover the whole subject then considered by the legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of all former statutes relating to such subject matter" (59 Corpus Juris 919), "and was intended as a substitute for it." 59 Corpus Juris 921, note 41. (Italics supplied.) This principle is fully recognized by this Court. Levy, Aronson White v. Jones, 208 Ala. 104,93 So. 733.
The question now is whether the act of 1915 plainly shows that it was intended to cover the whole subject. It certainly would have been clearer that it intended to cover the features of the act of 1874 if it had expressly repealed that act as it did that of 1872, or even if there had been a general repealing clause.
As we have said the act of 1874 was not in the form of an amendment to that of 1872, did not re-enact it as amended, but was original and stood effectively regardless of what may become of the act of 1872. I think that it is not unreasonable to hold that it was an exception from the operation of that act regardless of such changes and amendments as may be made to it. And when Congress in 1915 amended and re-enacted it, it is not beyond the pale of legislative interpretation to say that the act of 1874 continued as an exception to it as thus amended, since nothing is indicated one way or the other in the act of 1915. In that connection, the following statement in 59 Corpus Juris 927 seems to be well supported: "Insofar as a later law is merely a reenactment of an earlier one, it will not repeal an intermediate act which qualifies or limits the first one, but such intermediate act will be deemed to remain in force, and to qualify or modify the new act in the same manner as did the first. The rule is subject to the exception that where the reenacting act and the intermediate act are wholly inconsistent with *Page 31 each other and cannot stand together, the intermediate act will be regarded as repealed." This principle seems fully here to justify an interpretation of this situation so that the act of 1874 continues to modify the act of 1872, as re-enacted. But assuming that this is not the result, I think that situation at least created an ambiguous legislative status which continued without judicial or legislative interpretation or change until the adoption of the Code of 1926.
When that Code was adopted with the act of 1874, as section 544, Title 46, and the act of 1915, as section 601, in the same title, it cleared the assumed ambiguous situation as to whether the act of 1874 had been repealed, when Congress declared that those sections of the Code and all others in it were presumed prima facie to be the law; though not necessarily so. I do not think Congress would have put into the Code as adopted a section embracing a statute which had been intended to be repealed. I concede that the adoption of the Code did not enact section 544, supra, as a law not theretofore in effect. But I do contend that its adoption is a legislative interpretation of the act of 1915, as not repealing the act of 1874. There may have been an ambiguous status prior to that time, but not afterwards. When it says that section 544 is prima facie the law, notwithstanding section 601, it means that they must both be so regarded unless they are wholly inconsistent. They can both have a field of operation, and when both are thus inserted, I think that is what Congress is saying to us. And in doing so, they are virtually adopting and applying the principle of law quoted above from 59 Corpus Juris 927.
I cannot agree with the majority opinion.
1 25 Ala. App. 2.