The opinion
On Rehearing.
DOWDELL, C. J.
It is now urged in brief of counsel, on application for re-liearing, that a legislative intent to repeal the special law in question, creating the Newbern school district, is manifested in the act of *175 August 13, 1907, commonly known as the “Municipal Code Law,” and is expressly covered by section 200, p. 892, of said act. Section 200 provides “that all laws and parts of laws, both general and special, in conflict herewith, be and the same are hereby repealed.” This is but a general provision of repeal as to laws in conflict with the act, and, as stated in Endlich on the Interpretation of Statutes (cited in our first opinion), does not alter the doctrine of repeal by implication.
In addition to what was said in our former opinion as to the strictly private character of the local act in question, we may here add that it is wholly different from those local acts which simply provide for separate school districts, to the end merely of apportioning the school fund among the particular localities, etc. Here we have a corporate entity created, with the power of acquiring the title to property and of holding and disposing of the same in its corporate name. The question may be asked, What becomes of the property owned and held by this legal entity, if the act of its creation is repealed by the application of the doctrine of repeal by implication? It would seem unreasonable to impute to the legislature an implied intention of repeal in such a case.
There is, to our minds, still another reason that is conclusive against the proposition of an implied repeal of the special act in question by the Municipal Code act. The special act contains a provision that the members of the board of education, consisting of a president and four associates, who are designated and appointed in the act, “shall hold office for and during the term of their residence Avithin the district, and Avho shall have the right to fill all vacancies that may occur on such board by reason of death, resignation or otherwise,” thus in effect creating a life tenure of office in the members of the board, conditioned only upon residence Avithin the *176 district. It is argued by counsel, however, that this is not a life tenure. We fail to appreciate the reasoning. The only limitation put upon the holding for life is the removal of residence from the district. It could as well be said that the condition of good behavior attached to the holding of an office is such a limitation as would prevent the office from being one of life tenure.
Section 177 of the Municipal Code act of August 18, 1907 (Gen. Acts 1907, p. 879), provides as follows: “The provisions of this act, relative to public school systems, shall not apply to cities and towns in counties now having, by law, a combined city and county school system operated under a single board of education, or where the members of the board hold office for life” (Italics ours). It is too plain for argument that, in the passage of the said Municipal Code act, it was not only not the intention of the legislature to repeal the special act which provided for a lifeholding of the board created by it, but, to the contrary, that it was the intention to preserve the act.
For the foregoing reasons, as well as those stated in our former opinion, the application for a rehearing is denied.
ANDERSON, J.
While I agree in the conclusion that the act of 1897 (Loc. Acts 1896-97, p. 514), was not repealed by the municipal act of 1907 (page 790), I wish to base my conclusion solely upon the ground that the district in question-is expressly excepted from said act by the terms of section 177, and do not wish to be understood as holding that section 200 does not repeal all laws, general and special, in conflict with said municipal act. On the other hand, I think that said act does repeal all laws, general or special, in conflict with same; save those which are specially excepted from the operation of same *177 by section 177, provided, of course, tbe redistricting of all schools in the state is germane to said municipal law, which question we are not called upon to decide.
Nor do I think the act of 1897, authorizing the holding of office by the trustees so long as they reside in the district, violative of section 29 of the Constitution of 1901. Of course they could hold only during good behavior, but they can, nevertheless, hold for life if their behavior comes up to the constitutional requirement.
Simpson, J., concurs in these views.
McCLELLAN, J.
The whole question in this case, the controlling conclusion, is: Was the special act of 1897 repealed by subsequent enactment? If so, these respondents are without right to the positions as trustees of Newbern school district, which conformed, as stated, to the limits of “townships 19, range 5,” in Hale county. The town of Newbern is and was an incorporation, and it lies within, but does not embrace the whole of, township 19. The general act of 1903, by section 19, exempted from its operation and effect those public school districts, among others, “heretofore established by law.” This section was presented, in Brown v. Sanders, 144 Ala. 500 , 42 South. 39 , for construction, and it was there ruled that, under the provision “heretofore established by law,” the “Baltic district” was exempted from the effect of the act of 1903. The legislature of 1907 amended the act of 1903 in several particulars, among them, by striking from section 19 the phrase which this court had held intervened to prevent the repeal of the special law creating the “Baltic district,” enacted in 1884. I am unable to see how the conclusion can be avoided that, unless otherwise controlled, the said amendment of the act of 1903, by the elimination of the last clause in sec *178 tion 19, had the direct, immediate effect to repeal the law giving corporate existence to the Newbern district, because that district was not within the second phase of the condition to exemption from the effect of the general redistricting act, viz., within a county having a special levy for public schools. The amendment of section 19 is a nullity, unless it had that effect.
Justices Simpson and Anderson appear to entertain this opinion, but the effect of such a conclusion is avoided by them by recurrence to the amended (in 1907) section 16 of the act of 1903. It seems to me to be evident that, if section 16 as amended is construed to effect the same result as did original (before amendment) section 19 of the act of 1903, a conflict is thereby raised between the plain intent of the amendment of section 19 and amended section 16. Surely, if it was the legislative purpose, when the amendatory act of 1907 was passed, to continue all school districts established theretofore by law, the expression of that intention would not have been effected by the striking of that unequivocal expression from original section 19 (act of 1903) ; and this, after the ruling made in Broton v. Sanders, and the restating of it, in dealing with lines and boundaries only, in amended section 16. No doubt of the purpose of the amendment made of section 19 can, in my opinion, exist. If the purpose of the amendment of section 19 was as stated, it is our duty to construe other provisions of the act so as to avoid the institution of a. conflict between any of them. To my mind, such a conflict of purpose and acts is readily avoidable by this construction: That the provision of amended section 16, declaring that the lines and boundaries of any district created by general or special law might be changed, etc., had reference to those districts within the exemption, from the operation of the original and amended (in 1907) act of 1903, express *179 ed in amended section 19, viz., those specially created and in counties levying a special public school tax. So construed, the conflict indicated is avoided and the act is harmonious. And it may be added to the above conclusion that amended section 16 was also doubtless intended to preserve, until changed after the method therein provided, the mere lines and boundaries, not the powers and personnel of government, of all districts. This was a wise provision, because the abolition of all districts with-, out the exception of amended section 19 would have operated, if not saved by provision to the contrary, to abolish all lines and boundaries of such abolished districts.
If these views are sound, it is, of course, apparent that the amendatory act of 1907 abolished the offices now in contest, because the act of 1897, creating them, was repealed by the amendment of the act of 1893 by the legislature in 1907. But it is suggested, in the revised opinion of the Chief Justice, that the act of 1897 gave to the corporate entity of Newbern school district the right to hold property, etc., and it is asked, arguendo, whether repeal by implication should be sanctioned when no disposition of the property of the Newbern district is provided for. This argument must be based upon the assumption that the entity created by the act of 1897 owns property, since it does not appear in the record that such is the case. But, aside from that, it is too evident to be doubted that the motive, object, and purpose of the act (of 1897) was to establish a public school district. Under the terms of the act the only possible sources of' income, for the district, or entity thus created, were public school funds, upon due apportionment, and the poll taxes paid in that territory. That the purpose was to' create a school district, and that only, and provide its only income from public, governmental, sources, is put *180 beyond possible question by tbe fact that these trustees were required to take an oath and the position is expressly denominated an “office.” It is not to be supposed, I take it, that the legislature could not repeal the act creating the entity, even if it were a private corporation, which, it seems clear to me, it is not. — Const. 1875, art. 14, § 10; Const. 1901, § 288; Bibb v. Hall, 101 Ala. 79 -99, 14 South. 98 . There were no stockholders; hence, no “injustice” could be done that class, in any event, by repeal.
Sections 176, 177, and 200 of the Municipal Code are invoked as bearing on the question stated at the beginning of the views of the writer. Section 200 is a general repealing clause of all laws in conflict with the provisions of the Municipal Code. But section 177 qualifies the general repealing clause, because section 177 expressly creates an exempt class — one exempt from the effect and operation of the Municipal Code — in these words: “The provisions of this act,, shall not apply to cities and towns now having, by law, a combined city and county school system operated under a single board of education, or where the members of the board hold office for life.” Investigation disclosed that the public school system of the city and county of Mobile is the only instance where the defined combined system existed in 1907, or now exists, in this state. The alternative, “or where members of the board hold office for life,” further investigation discovers, is only instance in the system in force in a single city in this state. It may be a very serious question, though not now important, as I view the case, whether the term of the trustees provided in the Newbérn act of 1897 was not in violation of article 1, § 30, Constitution of 1875 (section 29, Constitution of 1901). Since the act creating the Newbern district was repealed by the amendment (in 1907) of section 19 of *181 the act of 1903, it requires no more than concurrent reference to amended (in 1907) section 20 of the act of 1903 and section 176 of the Municipal Code to show that, whatever may be the inconsistencies, if any, between the amended act of 1903 and the Municipal Code, with respect to the source of governing power of schools in cities and towns in this state, both acts constitute towns and cities separate school districts.
In my opinion the respondents have been without legal right to exercise the powers and perform the functions assumed, as averred in the information, by them, since the amendatory act of 1907 went into effect.