The opinion
HART, J., (dissenting). Mr. Justice Wood and I dissent from the majority opinion on the ground that there is an invincible repugnancy between sections 2 and 10 of the act under consideration, and that the act is therefore inoperative and void. We are not unmindful that it is the duty of courts to seek to ascertain and carry out the intention of the Legislature in its enactment of a statute and that they are bound, when practicable, so to construe the statute as to give it force and validity, rather than to avoid it or render it nugatory. So that it has been held that the court may disregard the literal meaning of a word when it is obvious from the act itself that the use of the word has been a clerical error. Haney v. State, 34 Ark. 263 ; Pryor v. Murphy, 80 Ark. 150 , and Bowman v. State, 93 Ark. 168 .
It has also been held that to carry out the intention of the Legislature it is sometimes found necessary to read the conjunctions, “or” and “and,” one for the other. Williams v. State, 99 Ark. 149 . Also in the Garland Power & Development Co. v. State Board of Railroad Incorporation, 94 Ark. 422 , the court held that in order to conform to the legislative intent, errors in an act may be corrected or words rejected and others substituted. There the court held that the board designated in the act “The State Board of Railroad Commission,” meant “The State Board of Railroad Incorporation.” There was no such board as that designated in the act and the court held that it was obvious from the context of the act that the Legislature did not mean to create a new board, but only meant to confer additional power upon a board already created. Therefore it held that by clerical error “The State Board of Railroad Incorporation” was called “The State Board of Railroad Commission.” That this was the view that the Legislature had is shown by the cases cited to support the opinion. Other cases are cited in the majority opinion to the effect that in order to harmonize the language of the act, the literal meaning of words often must give way to carry out the manifest intention of the Legislature. These eases, however, recognize the rule we are contending for. Otherwise any statute could be harmonized by cutting out such parts as the court might conjecture the Legislature would have left out, in order to prevent such parts being repugnant to another part and thus making the statute inoperative and void. It is manifest from all these decisions that where the meaning of the act is plain and there is nothing in it to call for the substitution of words, the court in construing the act is not at liberty to make it. The reason is that the court may not allow conjectural interpretation to take the place of judicial ascertainment. So it is generally held that if an act of the Legislature is so conflicting and inconsistent in its provisions that it cannot be executed, it is incumbent upon the court to declare it void and inoperative; otherwise the court would usurp the functions of the Legislature'.
As said by the court in the City of Pittsburg v. Kalchthaler, 114 Pa. St. Rep. 547: “We think it is always unsafe to depart from the plain and literal meaning of the words contained in legislative enactments out of deference to some supposed intent, or absence of intent, which would prevent the application of the words actually used to a given subject. Such a practice is really substituting the theories of a court, which may, and often do, vary with the personality of the individuals who compose it, in place of the express words of the law as enacted by the law-making power. It is a practice to be avoided and not followed. It has been condemned by many text writers and by many courts. Occasionally it has been departed from, but the path is a devious and a dangerous one, which ought never to be trodden, except upon considerations of the most convincing character and the gravest moment. ’ ’
Another rule applicable to the construction of statutes is that when the lawmakers make use of words of definite and well-known sense in the law, they are to be received and expounded in the same sense in the statute. The rule was clearly expressed in Johnson v. Hudson River Railroad Co., 49 N. Y. 455 , as follows: “The language of the act being explicit,, and the words free from ambiguity and doubt, capable of being read and understood, expressing plainly and distinctly the sense of the framers of the act, there is no occasion to resort to other means of interpretation. Where the language is definite and has a precise meaning, it must be presumed to declare the intent of the Legislature, and it is not allowable to go elsewhere in search of conjecture to restrict or extend the meaning. ’ ’
These canons of construction are well settled; but the chief difficulty lies in the application of them to a given case. Now the object of the statute was to change the method of selecting members of the board of directors of the St. Francis Levee District from appointment by the governor to an election by the owners of real estate in the district in the various counties. Acts of 1917, Vol. 1, p. 623.
Section 2 provides that the first election to be held shall be held on the second Tuesday in June, 1918; that the second election shall be held at the general election in 1920 and that an election shall be held at the general election every two years thereafter. The words ‘ ‘ general election” are used both in the Constitution and in the statute to denote the day on which State and county officers are elected. Article 3, section 8, of the Constitution of 1874 and section 2762 of Kirby’s Digest as amended by the Act of March 3, 1915, p. 402. The section of the Constitution just referred to provides that the general elections shall be held biennially on the first Monday of September, but that the General Assembly may by law fix a different time. Hence the words, “general election,” have acquired not only a definite and fixed legal meaning, but they are well understood in common speech to mean the day on which State and county officers are elected. And in this connection it may be said that when the time and place of holding an election are fixed by the Constitution or the Legislature, as in the case of a general election, all must take notice of the time and place of holding th¿ election whether there is a publication or not. Wheat v. Smith, 50 Ark. 266 , and Hodgkin v. Fry, Collector, 33 Ark. 716 .
Section 10 of the act provides for an annual election in 1920 and every year thereafter. It therefore fixes a definite time and place, and also provides a definite method for holding the election. The time and place are the substance of every election and it is therefore essential to the validity of every election that it he had at the time and place provided by the law.
The authority to hold an election at one time will not warrant an- election at another time and an election held at a time and place not fixed by the law itself will be void. Merwin v. Fussell, 93 Ark. 336 . A comparison of sections 2 and 10 will show that the first section provides for biennial elections to be held at the time and place for holding the general elections and the latter section provides for special annual elections to be held at a wholly different time and place. The language used in each section is plain and unambiguous.' In legal parlance as well as in common speech it has a fixed and definite meaning and one that is commonly understood by every voter. The property owner could not tell from reading the act which scheme the Legislature intended to adopt. This is left to conjecture and speculation. Hence it seems to us that the opinion of the majority substitutes the judgment of the court for that of the Legislature. In other words, the court by judicial declaration has usurped the legislative function.
It has often been said that the action of the court in substituting its judgment for that of the majority in order to carry out a policy which it deems to be wise, politic, or just, makes shipwreck of the symmetry of the law.
We are of the opinion that the language of the two sections are in invincible repugnancy and render the act inoperative and void. We therefore respectfully dissent from the opinion of the majority in the respect herein pointed out.
WOOD, J., concurs in this dissent.