#### CITY OF GREENSBORO v. COUNTY OF GUILFORD.

(Filed 14 April, 1926.)

1. Statutes — Interpretation—Repugnancy.

A later statute repeals a prior one on tlie same subject-matter when irreconcilable therewith, or to the extent of the provisions that are repugnant.

2. Same — In Pari Materia.

A public-local law allowing a city or municipal court to recover against a county the costs in certain criminal convictions where the prisoner is sentenced to be worked on the public roads of the county, and a general statute then upon the same subject, are to be construed in pari materia.

3. Same — Costs—Courts.

Where a public-local law permits the costs of a municipal court to be recovered from a county upon conviction of a criminal offense in certain instances, and a general statute in existence at the time of the enactment of the local statute provides specifically for one-half of the costs, this provision will be construed in pari materia with the general law, and the intent and meaning of the local law will be to permit a recovery of one-half the costs only. C. S., 1259.

*585Appeal by plaintiff from Schmch, J., at October Term, 1925, of Guilford.

Affirmed.

AGREED STATEMENT OF FACTS.

The plaintiff and tbe defendant have agreed to tbe following statement of facts:

“1. Tbat tbe plaintiff is a municipal corporation created and existing under and by virtue of tbe laws of tbe State of North Carolina.

“2. Tbat tbe defendant is a gwosi-municipal corporation created and existing under and by virtue of tbe laws of tbe State of North Carolina.

“3. Tbat chapter 651 of tbe Public Laws of North Carolina for 1909, is tbe act creating tbe municipal court of tbe city of Greensboro, and said act is hereby made a part of this agreed case; and tbat O. S., 1259, is hereby referred to as part of this agreed case.

“4. Tbat during tbe months of July, August, September, October, November and December, 1924, tbe follows cases, among others, were beard and disposed of in said court: Nos. 5619, 5620, 5404, 5790, 5945, 5949, 5978, 5011, 6078, 6075, 6045, 6178, 6432, 6576, 6571, 6668, 6780, 5377, 6891, 6859 and 6897; tbat in none of said cases was tbe defendant therein charged with 'any capital crime, or with forgery, perjury or conspiracy; tbat in each of said cases tbe defendant plead guilty or was convicted and was sentenced to serve a specified term either on tbe county roads or in tbe county workhouse of tbe county of Guilford; tbat fine and costs were not imposed and tbe defendants thereafter not sentenced to work out said fine and costs upon failure to pay tbe same; and tbat each judgment and sentence has been carried into effect.

“5. Tbat tbe total costs taxed in said cases by tbe said court amounted to $245.70.

“6. Tbat in each of tbe cases mentioned in paragraph 4 above, there were taxed in tbe bill of costs, in addition to tbe patrol wagon costs and tbe costs of board hereinafter mentioned, tbe following costs: Judge, $2.00; city attorney, $2.00; clerk, $3.00; police for making arrest, $1.50; police for subpoenaing witnesses, $0.50; jail fee, $1.00; tbat tbe said costs were those allowed by law in said cases to be taxed against the defendants therein by tbe said municipal court; tbat tbe total of tbe costs thus taxed in each of tbe said cases amounted to $10.00; and tbat tbe total of said costs thus taxed in all tbe cases mentioned in paragraph 4 above amounted to $210.00.

“7. Tbat in said cases in addition to other costs taxed, costs for meals were taxed in certain cases as follows: 5619, $0.35; 5404, $0.35; 5790, $0.35; 5945, $1.40; 5949, $1.05; 5011, $1.05; 6078, $1.05; 6178, $0.35; 6432, $0.55; 6576, $0.35; 6668, $1.40; 6780, $1.40; 5377, $2.80; 6891, $1.05; 6859, $1.05; 6897, $0.35; tbat such costs were allowed by law and *586were properly taxed against the defendants; and that the total costs thus taxed is $14.70.

“8. That in each of the cases specified in paragraph 4 above there was taxed in the bill of costs a patrol wagon cost of $1.00; that in each of said cases the patrol wagon was used in conveying the prisoner at the time of his arrest to the city jail; that such cost was reasonable in amount if it was allowed by law and properly taxed in the bill of costs; that the total costs thus taxed in the cases mentioned in paragraph 4 amounted to $210.00.

“9. That cases 5619 and 5620, mentioned in paragraph 4 above, were against the same defendant and were tried and disposed of the same day; that in 5619 the defendant was charged with having whiskey for sale, that she was found guilty on said charge, and was sentenced to serve three months in the county workhouse; that in 5620 the same defendant was charged with prostitution, that she was found guilty on said charge, and was sentenced to serve sixty days in the county workhouse; that the bill of costs in each case was the same; and that in the second of said cases no jail fee or patrol wagon fee should have been taxed in the costs, such fees having been already taxed in the first of said cases.

“10. That the defendant has waived notice of claim and all other formalities and prerequisites to the bringing of a suit against the county of Guilford in order that the matters in controversy between the plaintiff and the defendant may be speedily settled.

“11: That upon the foregoing statement of facts the plaintiff contends that it is entitled to recover of the defendant the full amount of costs taxed in the cases mentioned in paragraph 4 above, including the cost of $1.00 for patrol wagon taxed in each of said cases and the costs taxed in both of the cases numbered 5619 and 5620, with the exception of $1.00 jail fee and $1.00 patrol wagon fee taxed in case No. 5620, the total costs which plaintiff contends it is entitled to recover of the defendant, being $243.70; while the defendant contends that upon the foregoing statement of facts the plaintiff is not entitled to recover of the defendant any of the costs taxed for the patrol wagon in the cases mentioned in paragraph 4 above, that the plaintiff is entitled to recover of the defendant costs in only one of the eases numbered 5619 and 5620, and that of the costs properly taxed in the cases mentioned in paragraph 4 above the plaintiff is entitled to recover of the defendant only one-half of said costs and not the whole amount thereof.

“12. That this matter is submitted to the court in order that the following matters in controversy between the plaintiff and the defendant may be determined:

“(a) "Was a patrol wagon fee properly taxed in the bill of costs in the eases mentioned in paragraph 4 of the agreed statement of facts ?

*587“(b) Is tbe defendant liable to tbe plaintiff for tbe costs taxed in botb of tbe eases numbered 5619 and 5620, witb tbe exception of tbe jail fee and patrol wagon fee taxed in 5620 ?

“(e) In tbe cases mentioned in paragraph 4 of tbe agreed statement of facts, is tbe defendant liable to tbe plaintiff for tbe full amount of tbe costs taxed in said cases or for only one-balf thereof?”

On tbe agreed statement of facts, tbe following judgment was rendered:

“This cause coming on to be beard before tbe Honorable Michael Schenck, judge of tbe Superior Court, upon tbe agreed statement of facts submitted by plaintiff and defendant; and after argument of counsel for botb parties in said cause: It is ordered, adjudged and decreed:

First. That tbe patrol wagon fee is a proper fee to be taxed in tbe bill of costs in tbe cases against tbe defendants mentioned in paragraph four of tbe agreed statement of facts, and tbe county of Guilford is liable to tbe city of Greensboro for one-balf of said patrol wagon fee in said cases.

Second. That tbe county of Guilford is liable for one-balf of tbe cost of botb of tbe cases numbered 5619 and 5620, witb tbe exception of tbe jail fee and patrol wagon fee taxed in No. 5620.

“Third. That tbe county of Guilford is liable to tbe plaintiff for only one-balf tbe full amount of costs taxed in tbe cases mentioned in paragraph four of said agreed case.

“Fourth. That tbe defendant recover of tbe plaintiff tbe costs of tbe action to be taxed by tbe clerk.”

To tbe action of tbe court in signing tbe foregoing judgment, tbe plaintiff excepted, assigned error and appealed to tbe Supreme Court.

Bobt. Moseley for plaintiff.

John N. Wilson for defendant.

Clarkson, J.

Tbe first two questions presented to tbe court below are tbe question as to tbe patrol wagon fee and tbe question as to tbe costs taxed in cases 5619 and 5620, baying been decided in favor of plaintiff, and the defendant having neither excepted to tbe judgment nor appealed therefrom, neither of these matters is now presented to this Court for review. And it having been agreed that all other items entering into tbe bills of costs were properly taxed, there is no question presented tó this Court, as to tbe validity of any individual item of costs. The sole question, therefore, presented by this appeal is whether of tbe whole costs taxed in tbe 21 cases (exclusive of tbe two items amounting to $2, which it is agreed were not properly taxed in No. 5620), tbe county is liable for tbe whole, $243.70, or for only one-balf, $121.85. Tbe plaintiff bases its contention that tbe county of Guilford is *588liable for tbe whole of said costs on the provisions of the act creating the municipal court — chapter 651 of the Public Laws of 1909. The defendant bases its contention that the county of Guilford is liable for only one-half of said costs on the provisions of C. S., 1259.

We quote the general principles of law bearing on the subject: In 25 R. C. L., p. 929, sec. 118, it is said: “It is well settled that a special or local law repeals an earlier general law to the extent of any irreconcilable conflict between their provisions, or speaking more accurately, it operates to engraft on the general statute an exception to the extent of the conflict.

In S. v. Kelly, 186 N. C., p. 371, it is said: “ ‘Where two statutes are thus in conflict and cannot reasonably be reconciled, the latter one repeals the one of earlier date to the extent of the repugnance.’ Comrs. v. Henderson, 163 N. C., 120; Road Comrs. v. Comrs., 186 N. C., 202. ‘Between the two acts there must be plain, unavoidable and irreconcilable repug-nancy, and even then the old law is repealed by implication only pro tanto to the extent of the repugnancy.’ 36 C. L. P., p. 1047. Every affirmative statute is a repeal by implication of a prior affirmative statute, so far as it is contrary to it, for the maxim is leges posteriores priores contraries abrogant (later laws abrogate prior laws that are contrary to them). S. v. Woodside, 31 N. C., 500; Black’s Law Dictionary.” Felmet v. Comrs., 186 N. C., 252; Waters v. Comrs., ibid., 721; Blair v. Comrs., 187 N. C., 489; Carr v. Little, 188 N. C., 111; Asheville v. Herbert, 190 N. C., 732.

C. S., 1259, is as follows: “If there is no prosecutor in a criminal action, and the defendant is acquitted, or convicted and unable to pay the costs, or a nolle prosequi is entered, or judgment arrested, the county shall pay the clerks, sheriffs, constables, justices and witnesses one-half their lawful fees; except in capital cases and in prosecutions for forgery, perjury, or conspiracy, when they shall receive full fees. No county shall pay any such costs unless the same is approved, audited and adjudged against the county as provided in this chapter.”

This payment by the county of half fees has been the general policy of the State for long years. In Guilford v. Comrs., 120 N. C., p. 23, decided as far back as 1897, this act was construed and it is there said: “At common law the sovereign never paid or recovered costs.”

The municipal court of the city of Greensboro was established by chap. 651, Public Laws 1909. Sec. 23 is as follows: “That whenever under a judgment of the said court any defendant is sentenced to the common jail of the county of Guilford to work on the public roads or in the county workhouse of said county, or to pay a fine and the costs of the action, or the costs only, as provided in this act, and said defendant is imprisoned in the common jail aforesaid, and assigned to the public *589roads or tbe county workbouse of said county as aforesaid, for tbe purpose of working out said fine and costs, or tbe costs only, as tbe ease may be, and sucb judgment is carried into effect, tbe said county of Guilford shall be liable for and shall pay to tbe treasurer of tbe city of Greensboro tbe amount of tbe costs taxed in said case.” Tbe other sections of tbe act we do not think throw light on tbe subject and need not be considered.

When this section of tbe Municipal Court Act was enacted tbe general State law was to tbe effect that counties in criminal actions were only liable for “one-half their lawful fees,” except in certain cases not material here. With this public act in force applicable to tbe whole State, — tbe Municipal Court Act — a special act was passed “tbe said county of Guilford shall be liable for and shall pay to tbe treasurer of tbe city of Greensboro tbe amount of tbe costs taxed in said case.” Does this language make an irreconcilable conflict with tbe general State act ? If it does, under tbe decisions of this State, it is an exception, and tbe county would be liable for full costs. But we cannot so bold. If tbe Legislature bad intended that tbe county pay full fees, it could have said so and clearly made an exception. Tbe general law in existence was that a county was liable to pay only “one-half their lawful fees,” and that was all that could be taxed against a county. Between tbe two acts there must be plain, unavoidable and irreconcilable repugnancy. It is apparent that there is not sucb a conflict and tbe two acts should be construed in pari materia. Asheville v. Herbert, supra, p. 732. “Tbe amount of tbe cost taxed” means tbe costs tbe law allows to be taxed against a county, which is one-balf. To make an exception, tbe language should be clear and not ambiguous. If it was tbe intention of tbe Legislature to make an exception from tbe general statute, it could have easily said that tbe county should be liable for full fees or used other appropriate language showing an unmistakable intent.

Tbe judgment of tbe court below is

Affirmed.