I respectfully dissent in this case because I do not agree that the phrase "shall be brought" has any reference to past actions, but refers wholly to actions brought thereafter.
I think the legislature and the people, when this act was adopted, intended just what they said; that is, they intended that no action should thereafter be brought except in the manner provided by the act.
It is said in the majority opinion that act 314 is a venue act and that its purpose and effect is to localize personal injury actions. That is true, but it meant the venue in actions thereafter brought. It would have been an easy matter, if the legislature had intended that it apply to pending litigation, to have said so; and it is a general rule that all statutes must be construed to be prospective only in operation, unless otherwise expressly declared or a clear intent otherwise is shown.
It is admitted that this suit was brought and service had before the act became effective, and that the service was valid when had.
It seems clear to me that if the legislature had intended that the act apply to pending actions, or actions that had already been brought, it would have said so.
The majority opinion quotes from 172 of the chapter entitled "Courts," Vol. 14, Am.Jur., 372. The majority opinion does not mean that in all cases a court cannot proceed in a pending action, because the opinion says, quoting from Am.Jur., "unless they are saved by a clause in the repealing statute," and then adds that act 314 has no saving clause as to pending suits. I differ from the majority in this statement. I think that the phrase "shall be brought" shows the intention of the legislature to have been that the act was to apply to pending suits, but only those brought in the future.
In referring to the case of Roberson v. Roberson,193 Ark. 669, 101 S.W.2d 961, the majority opinion states that the effect of the act in that case was to destroy a cause of action which had previously existed. In the instant case no cause of action was destroyed. The cause *Page 225 of action for personal injuries was the same as it was before the passage of the act.
We have many times held that we should give statutes a common-sense construction, and it appears to me that to hold that the phrase "shall be brought" could be construed to refer to suits already pending, is an unreasonable construction of the statute.
The Connecticut court said: "But this act was passed after the commencement of this suit, and it is in terms prospective. The words are: `Whenever any action shall be brought to recover a penalty for the erection or continuance of any nuisance upon any public highway, etc., and the defendant shall justify' etc. . . . This certainly could not relate to actions already brought and then pending." Perkins v. Perkins, 7 Conn. 558, 18 Am. Dec. 120.
"The use of the word `shall' in the clause in question is in contrast with the words `are hereby defeated and declared to be lost' found in the earlier clause of the section which deals with past settlements. In other words, so far as language goes, the two clauses are not similar, but are in contrast with each other. We see nothing here to take this section out of the general rule that even in a pauper settlement act the word `shall' prima facie refers to the future." City of Lawrence v. Town of Methuen,187 Mass. 592, 73 N.E. 860.
It seems unnecessary to cite other authorities to show that the phrase "shall be brought" does not refer to or mean action already brought.
I respectfully dissent and think the writ should be denied. I am authorized to say that Mr. Justice HUMPHREYS agrees with me in this dissenting opinion. *Page 226