After considering the briefs of counsel on the motion for a rehearing, a majority of the court is of the opinion that a rehearing should be granted. We recognize the general rule that appeals by implication are not favored, but think the case falls within the principles of law decided in Massey v. State, ante p. 174.
The familiar general rule with regard to implied appeals is clearly stated by Mr. Justice Field in United States v. Tynen, 11 Wall. (U.S.) p. 88, as follows: "When there are two acts on the same subject, the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and, even where two *Page 834 acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act."
The effect of this rule is that the prior statute is impliedly repealed so far as the provisions of the subsequent statute are repugnant to it, or so far as the latter statute is plainly intended as a substitute for it. Now, in the light of these principles, it may be well to set out the object and purposes of the two statutes and their provisions so far as they bear on the case before us.
The Legislature of 1919 passed a special act for the purpose of fixing the fees and salaries of the officers of Phillips County, Ark. The act was approved February 17, 1919. Special Acts of 1919, p. 132.
Section one, which fixes the salary of the various county officers of Phillips County also contains the following: "The county court shall provide and pay out of the county treasury the expenses of lighting and heating the county jail, and for bedding of the prisoners, and shall allow the sheriff the actual cost of feeding the prisoners confined in the jail, not to exceed however, the sum of fifty cents (50 cents) per day for each prisoner; provided, the salary of the jailer shall be included in the cost of feeding the prisoners in this section provided."
At the same session, the Legislature passed an act to better regulate the fees allowed sheriffs for furnishing prisoners, and it was approved February 27, 1919. Gen. Acts of 1919, p. 127. Section one of the act reads as follows: "Hereafter sheriffs shall be allowed as fees for feeding and keeping a prisoner confined in the county jail, per day, the sum of one ($1.00) dollar; provided, the provisions of this act shall not apply to Crawford, Madison, Sebastian, Newton, Greene, Lafayette and St. Francis. "Sec. 2, provides that all laws and parts of laws in conflict with the act are repealed and contains the emergency clause." It will be observed that this act was *Page 835 passed only ten days later than the first act. The presumption is that the Legislature had in mind the first act, and its provisions with regard to the fees to be allowed the sheriff for feeding and keeping prisoners confined in the county jail.
Under the first act the county court must provide the expense of lighting and heating the county jail and for bedding of the prisoners. It also provides that the sheriff shall be allowed the actual cost of feeding the prisoners not to exceed the sum of fifty cents per day for each prisoner. The second act allows the sheriff for feeding and keeping the prisoners the sum of one dollar per day. It also contains a proviso that the act shall not apply to certain counties which are named. Thus it will be seen that it was the intention of the Legislature that the act should apply to all counties which were not excepted by the proviso. Phillips County was not one of the counties mentioned in the proviso, and we think this indicates an intention on the part of the Legislature that it should come within the provisions of the act. On the subject of keeping the prisoners the acts are repugnant, and in application of the general rule announced above we think the first act is to this extent repealed by the latter act.
The result of our views is that the circuit court erred in not allowing the sheriff fees under the provisions of the latter act, which is now incorporated in Crawford Moses Digest as 6211.
The judgment will therefore be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.
McCULLOCH, C.J., and SMITH, J., dissent. *Page 836