embraced in Ch’s 9 and 10, Laws 1890, and Ch. 9, Laws 1891. Where the salary of an officer is not fixed by the terms of the constitution, it is well settled, where an act of the legislature appropriates a sum as salary which is less in amount than the salary allowed the same officer by the statute which created the office, that the two statutcs are repugnant, and the former must give way to the latter, even though the latter enactment contains no repealing words. Collins v. State, (S. D.) 51 N. W. 776; and cases cited. These authorities are not in point in the case at bar until the conclusion is first reached-—and we have reached that conclusion—that all of the enactments in question which touch the matter of a “clerk” or “secretary” of the commissioners are to be construed as referring to one and the same subordinate functionary of the commissioners of railroads, whose duties are ministerial, purely, and of a clerical nature. Chief Justice Waite, in the case of King v. Cornell, 106 U.S. 395, 1 Sup. Ct. Rep. 312, said: “While repeals by implication are not favored, it is well settled that when two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions, which plainly show that the last is intended as a substitute for the first, it will operate as a repeal.”
We deem further comment unnecessary. From what has been said it follows that no law of the state will allow the state auditor to issue warrants on the state treasurer to the relator as and for salary at the rate of $1,500. The relator, whether as the secretary or clerk of the commissioners of railroads, is lawfully entitled to a salary of $1,000 per annum, and no more. The order appealed from must therefore be reversed, and such will be the order of this court. All concur.
(55 N. W. Rep. 858.)
