I disagree with the holding of the majority of the court that this proceeding is controlled by Act No. 391 of the General Assembly of 1941. This act went into effect on July 1, 1941. The work done by the claimants which entitled them to unemployment benefits was performed during the year 1939. The claims were filed on July 9, 1940. The hearings on these claims were conducted in April, 1941. The decision of the appeals referee, in which he determined that the claimants were eligible to receive benefits, and that the Crossett Lumber Company was the employer, was rendered on June 5, 1941. The only law affecting the situation, when the work which made these men eligible as employees was done, when the unemployment which entitled them to the benefits occurred, when the claims were filed, when the claims were heard, and when the claims were decided by the appeals referee, was Act No. 155 of 1937, as amended by Act No. 200 of 1939. If this act of 1937, as amended by the act of 1939, was not in force when this work was done, when the claims arose, when they were filed, and when they were heard and decided by the appeals referee, then there was no law whatever authorizing the filing, hearing, or deciding of these claims, because the act of 1941 was not in existence when all these events occurred. But it is held by the majority that the act of 1941 was by its terms retroactive, and that, since the General Assembly in this act legislated away the effect of the decision of this court in the case of McKinley, Commissioner v. R. L. Payne Son Lumber Company, 200 Ark. 1114, 143 S.W.2d 38, the provisions of this latter act should be applied to and should control the case at bar, even though it arose under and was tried by the lower tribunal under the former act. While some provisions of the act of 1941 may be said to be retroactive, there is nothing whatever in this act that indicates that it was the intention of the legislature that these retroactive provisions should be applied to cases pending at the time of the passage of the *Page 644 act. It is true that the act of 1941 repealed the act of 1939, but 13284 of Pope's Digest provides as follows: "No action, plea, prosecution or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provisions had remained in force." It should be conclusively presumed that the legislature, in enacting the 1941 law, did so with the full knowledge of the provisions of 13284, supra, and without any intention whatever to make the 1941 act apply to proceedings pending at the time the act was passed.
In the case of State ex rel Cleveland Railway Company v. Atkinson, 138 Ohio St. 157, 34 N.E.2d 233, the court had under consideration the effect of the repeal of the original unemployment compensation act of that state by a subsequent act on a proceeding brought by an employer for a determination as to seasonal or casual employment. In the first act the right of appeal from the decision of the unemployment commission was given, but in the latter act such right was not given. Section 26 of the General Code of Ohio is as follows: "Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal . . . nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repealing act." The Ohio court held that a proceeding before the unemployment compensation commission was within the scope of 26 of the General Code, and held that the provisions of the original act applied to the proceeding under consideration, saying: "Section 26 is a salutary statute and should be preserved against emasculation by judicial interpretation. Its nature is such as to require it to be read in connection with every amending and repealing statute which affects pending actions prosecutions or proceedings or existing causes of action, prosecutions or proceedings, for purpose of statutory construction. It is with knowledge of the existence of the general saving provision and its effect upon every revision or repeal of remedial statutes that the General Assembly acts." *Page 645
Section 13284 of Pope's Digest has been frequently construed and the provisions thereof enforced by this court. In the early case of Cannon v. Davies, 33 Ark. 56, it was said: "And although the law, under which the change was made, was repealed by the act of March 2d 1875, this action having been previously commenced, and pending as an action of ejectment at the time of the passage of the act of 1875, the repealing law did not affect the pending action, or the rights of the parties thereto . . ." The court, in the case of Carle v. Gehl, 193 Ark. 1061,104 S.W.2d 445, in passing upon this section, said: "Since the judgment in the court below and the filing of the case in this court, Act No. 264 of the Acts of 1937, in express terms, repeals Act No. 142 of the Acts of 1935 relied upon by appellant. In one of the supplemental briefs, filed by counsel when their attention was called to the repeal of Act No. 142, the position is taken that as the remedy provided by said act invoked in the pending proceeding no longer exists all rights under it are concluded by its repeal. In other briefs the same contention is made on the theory that Act No. 142 should be treated as a statute of limitation. There is authority to support these contentions, but whatever the law may have been in other jurisdictions, even that supported by the weight of authority, it has no effect because of the effect of 9759 of Crawford Moses' Digest which is as follows: `No action, plea, prosecution or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal, but the same shall proceed in any respects as if such statutory provisions had remained in force.' So far, then, as the instant case is concerned, and all others filed prior to the repealing act, Act No. 142 of the Acts of 1935 is in full force and effect, . . ." Other cases in which the provisions of 13284 of Pope's Digest have been held to make controlling the law in force at the time the proceeding was filed are McAllister v. Wright, 197 Ark. 1156,127 S.W.2d 645; and Kansas City Life Insurance Company v. Moss, 196 Ark. 553, 119 S.W.2d 524. None of these decisions are overruled or modified by anything said in the opinion in the case of Fort Smith Gas Company v. Kincannon, 202 Ark. 216, 150 S.W.2d 968. On *Page 646 the contrary, the court in that opinion referred to these decisions and expressly stated that it adhered to them, but based its decision in that case solely on the ground that Act 314, the amending act, did not "divest the plaintiff of his right to sue to recover damages to compensate his injury" but merely changed the forum in which that right could be enforced, and said: "In other words, 13284 of Pope's Digest preserved rights in existence under other statutes, which were not divested by the repeal of the law under which those rights had accrued." Certainly, under the act of 1937 these workmen had certain rights as to unemployment benefits, and the State of Arkansas had certain rights as to collection of contributions. The General Assembly in the act of 1941 did not attempt to abolish or change these rights by any express language of the act. There is nothing in the act of 1941 from which we can read an intention of the General Assembly to make the act applicable to pending proceedings. Since this is true, clearly the provisions of 13284 of Pope's Digest require that the proceeding be governed by the provisions of the original act.
I concur in that part of the opinion of the majority of the court which allows recovery of the amount of the claims by these workmen, but dissent from so much thereof as holds that by reason of the provisions of the act of 1941 the State is denied the right to collect contributions, based on the earnings of these claimants, from the appellant.