
    Mozart Gallup v. The Commissioners of Lorain County.
    The 41st section of the school law of 1853 (S. & C. 1360), which authorizes county commissioners to make allowances to the auditor for services under said law, was neither expressly nor impliedly repealed hy the act of February 7th, 1861, “ to regulate and limit the compensation of county auditors ” (58 O. L. 7), and such allowances could he lawfully made hy the commissioners after the passage of said act of 1861.
    Error to the court of common pleas of Lorain county. Reserved in the district court.
    The case is sufficiently stated in the opinion of the court.
    
      Estep ds Bwrke for plaintiff in error:
    In support of the authority of the county commissioners to make allowances under the 41st section of the school law, and that such section was not repealed by the act of 1861, nor by any other act of the legislature, we wish to submit the following considerations:
    1st. That section is nowhere in express terms repealed.
    2d. “ Repeals by implication are not favored in law, and such repeal will not be recognized unless the repugnancy between the prior and subsequent act of legislation be necessary and obvious, and so great that the two cannot be reconciled by any fair course of reasoning.” Buckingham et al. v. The Steubenville and Indiana Railroad Company, 10 Ohio St. 27.
    That the case in 10 Ohio St. 27, is a much stronger case than the case at bar, for the application of the doctrine of repeals by implication, we think very clear. The following authorities will illustrate the rule that repeals by implication are not favored in law: Dodge v. Gridley, 10 Ohio, 173; Hirn v. The State, 1 Ohio St. 20; 6 Ib. 316; 8 Ib. 399 and 264; 3 Ohio, 553.
    The rule is that two statutes in pari matera shall stand together, and both have effect, if possible. That the latter shall not be construed to repeal the former if it is possible, by any fair course of reasoning, to reconcile them. '
    3d. The legislature clearly had the power to make provision for compensation to county auditors, for general services, under one act, and for special services under the school act under another, if such was the intention. That such was the intention up to 1861 is not denied. Erom 1838 to 1861 auditors received compensation for general services under one act, and for services under the school law under another.
    That the legislature did not i/ntend to repeal the "41st section of the school law is very clear. If such had been the intention, nothing was so easy as to do it.
    We say it is very clear that the legislature had no such intent. When one section of an act is repealed and another left standing, the inference is irresistible that there was no intention to repeal the section left standing. See 10 Ohio St. 28.
    The legislature in 1864, pages 33-35 amended, the school law in several very important particulars, and repealed sections 22, 28, 29, 31, 40, 44, 45, 46, etc., and said nothing about section 41. Is not the inference plain that there was no intention to repeal it ?
    If there could be any doubt as to the intention of the legislature not to repeal the 41st section, but to leave it in full force, it is settled by the 40th section as then amended (see page 33, Laws of 1864). It is there distinctly provided that if the auditor should fail to discharge certain duties under the act, “ that the county commissioners should ded/uctfrom his salary or allowance, made to the auditor for his services, the sum of fifty dollarsP What “ allowance ” ? and for what “services”} unless under this very same school law, as provided in the 41st section.
    
      There was no law im, 1864 Toy which the auditor could he allowed “ for services ” except under the 41 st section of the school la/w, and hence the conclusion is inevitable that “ the allowance made to the auditor for his “ services ” mentioned in the 40th section, is the same “ allowance ” which the commissioners shall make out of their treasuries “ for services performed under the act,” as provided in the 41st section. The language in each section is the same, and if reference is not made to the 41st section, to what statute is reference made for the “ allowance ” from which the penalty of fifty dollars is to be deducted, as provided is said 40th section %
    
    
      John C. Hale and C. W. Johnston for defendants in error:
    It is claimed by us that the 41st section of the school law was not in force during any portion of the time that the plaintiff in error was in office as auditor, but that the same was superseded by the act of February 7, 1861, entitled “ An act to regulate and limit the compensation of county auditors.” 58 O. L. 7. And, consequently, that the commissioners had no power to make the allowances aforesaid.
    The only services required to be performed by the auditor under the “ school law ” are those enumerated in sections 22, 28, 29, 37, 40, and 60.
    Now, wo claim that prior to the passage of the act of 1861 auditors were compensated according to the provisions of the fee bill of 1838 and 1859, and by those acts alone. That the 32d section of the old school law, and the 41st section of the present law, never had and never was intended to have any validity whatever in determining such-, compensation. It was placed in the- school law simply to indicate that the auditor should not be compelled to perform the duties xmder that act without compensation, but the amount of such compensation, and the mode of payment, were determined by the act regulating the fees of county auditors, which act was: intended to be, and was, complete within itself.
    
      The services performed under the school law are services performed for the county, for which the act of 1859 provided compensation by its very terms. If it did not mention each item in just the language of the act, pointing out the services, it specified that those items not mentioned were to be measured by those that were. So that looking to that act, and that alone, the full compensation of the auditor could be determined. Nor could it be determined in any other way.
    So stood the law when the act to regulate and limit the compensation of county auditors was passed in February, 1861.
    It is admitted that the legislature has not in terms repealed the 41st section of the school law. Has it been repealed, or superseded by implication ?
    It is undoubtedly the general rule that before a court is authorized to say that a statute is repealed by implication, it must clearly so appear, and its provisions must be plainly repugnant to, and irreconcilable with, the provisions of the act by which it is claimed to be repealed. While this is the rule governing courts in determining whether a statute has been impliedly repealed, it is a rule of law, equally well settled, that a subsequent statute revising the whole subject-matter of a former act, and evidently intended as a substitute for it, although it contains no express words to that effect, operates to repeal the former. Lorain Plank Road Co. v. Newton Cotton, 12 Ohio St. 263, 272; 2 Parsons’ Select Cases, 241; 3 now, U. S. 643; Bartlett v. King, 12 Mass. 537; Nichols v. Squire, 5 Pick. 168.
    And again: if the revision be not of the whole subject-matter, the revisory statute operates as a repeal of the former law, to the extent to which its provisions are revised and supplied. Goddard v. Boston, 20 Pick. 410; Fisher v. Gregory, 2 Parsons’ Select Cases, 244; Gorham v. Sackett, 6 B. Mon. 146; Stirman v. State, 21 Texas, 734.
    When any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. Ellis v. Paige, 1 Pick. 45; State v. Ingersoll, 17 Wis. 631; Blackburn v. Walpole, 9 Pick. 103.
    
      A subsequent statute making a different provision on tba same subject is not to be construed as an explanatory act, bul an implied repeal of the former. Dash v. Van Kleeck, 7 Johns, mar. p. 497; 4 Cowen, 556; Brown v. Osborne, 2 Cowen, 457.
    Though a subsequent statute be not repugnant in all its provisions to a prior one, yet if it is clear that the latter was intended to prescribe the only rule which should govern in the case provided for, it repeals the prior one. Dexter and Limerick Plank R. Co. v. Allen, 16 Barb. 15; 3 Ala. 626; 3 How. U. S. 636; Sedg. on Stat. and Const. Law, 124; 26 Barb. 657.
    If two grants of power by the legislature are repugnant, the second must control. Korah v. Ottawa, 32 Ill. 121.
    The law of 1859, regulating the fees of county auditors, fixed and determined the fees of county auditors, including their services under the school law.
    The law of 1859 was repealed in terms by the act of February 7,1861, which took its place.
    And as the act of 1859 provided compensation to auditors for all their services, so does the act of 1861, which took its place, and by which it was repealed.
    In no plainer way could it be made to appear that the latter act was intended to fix the only rule which should govern in thereafter determining the compensation of auditors.
    Again, it would seem very obvious from reading the act of 1861, that the legislature intended to fix the rule, by which the entire compensation the auditor should receive for all ser -dees he was required to render, should be ascertained and determined. The act is one to regulate and Mndt the compensation. Its object was to reduce the compensation before authorized to auditors (Crickett et al. v. The State, 18 Ohio St. 20), and to change the system from one of fees to an annual salary.
    Our conclusion is, that the 41st section of the school law was not in force at the time the several allowances were made to the plaintiff in error.
    
      
      Mr. Rale adds the following:
    The allowance for services spoken of in the 40th section of the school law, is an “ annual salary or allowance.” No such allowance is mentioned in the 41st section of the school law, and it evidently did not refer to it, because — 1st. This deduction was to be made as a penalty for neglect of duty; and, 2d. If an auditor neglects or does not perform his duties under the school law no allowance was made him, and there would be nothing to deduct from. This would leave the auditors at liberty to violate that section of the school law placing duties upon him, and no penalty could be enforced against him.
    Eeference is made to these additional authorities: 6 Ohio, 503; 1 Ohio, 9 ; 10 Ohio, 482; 12 Ohio St. 169-171.
   Welch, J.

The plaintiff in error was auditor of Lorain county for six years, commencing in March, 1863; and the commissioners of the county, during that time, made him allowances to the aggregate amount of $1,400, for services under the school law, in addition to his annual salary. An action was brought by the commissioners to recover back this money, as having been allowed and paid without authority of law. In the common pleas the action was sustained, and judgment rendered in favor of the commissioners for the amount so paid; and upon petition in error to reverse the judgment, the cause was reserved in the district court for decision here; the only question being, whether the commissioners had authority by law to make the extra allowances in question; if they had then the judgment must be reversed; otherwise, it must, be affirmed.

It is conceded that the power to make such allowances was given to the commissioners by the 41st section of the school law of 1853 (S. & C. 1360); and the real question is whether that section was repealed by the “ act to regulate and limit the compensation of county auditors,” of Feb. 7, 1861. (58 O. L. 7.) The act of 1861 contains no express repeal of that section of the school law, while it does expressly repeal two other acts, which had been passed “to regulate the.fees of county auditors.” Does it repeal the 41st section of the school law by implication? We thinlc not. There is no necessary or irreconcilable conflict between the two. Both may stand and have effect. They regard different subjects of legislation. The one relates to common schools and the other to a county officer. True, certain duties are imposed upon that officer by the school law. Yet the legislature might well have regarded the auditor, while acting in the discharge of those duties, as a quasi superintendent of schools, and as such entitled to separate compensation. Under the well-known rule of law, that repeals by implication are not to be favored, we feel bound to suppose that such was the intention of the legislature, and that when they say, in the act of 1861, as they do in substance, that the auditor shall receive a specified salary for his services, they must be understood to speak of his services as auditor proper, and not to include those rendered under the school law. I may add, that subsequent acts of legislation on the same matters, the schools and the fees of county auditors, which acts it is unnecessary here to refer to, but which, as being in pari materia., cannot be wholly disregarded, tend to confirm this view of the legislative intent.

Judgment reversed, and judgment entered for plaintiff in error.

Scott, C.J., and White, Day, and McIlvaine, JJ., concurred.  