star-pagination">*Page 208 which by its terms divided the State into nine administrative judicial districts and provided among other things in substance that the presiding judge of such administrative districts would have the right to assign judges when the regular judge was absent, disabled or disqualified. The bill of exception presenting this matter shows that the presiding judge of the administrative district of which Bastrop County is a part was unable to secure a judge to hold said term of court in lieu of the regular judge, who was ill and unable to be present and hold court, and that thereupon on the fourth morning of the term of court the lawyers proceeded to elect a special judge under the terms of Chapter 1, Title 40, Revised Statutes, 1925. If the provisions of this chapter were impliedly repealed by the said act of the Fortieth Legislature, it necessarily follows that all proceedings had under the special judge so elected were a nullity.

It has been said:

"Repeals by implication are not favored, and will not be indulged if there is any other reasonable construction. The presumption is always against the intention to repeal where express terms are not used and the implication, in order to be operative, must be necessary. A law is not repealed by a later enactment, if the provisions of the two laws are not irreconcilable nor necessarily inconsistent, but both may stand and be operative without repugnance to each other. Nor can one act be allowed to defeat another if, by a fair and reasonable construction, the two can be made to stand together. Although two acts are seemingly contradictory or repugnant, they are, if possible by a fair and reasonable interpretation, to be given such a construction that both may have effect." 25 R. C. L., Sec. 169, P. 918.

And further:

"Except when an act covers the entire subject matter of earlier legislation, is complete in itself and is evidently intended to supersede the prior legislation on the subject, it does not by implication repeal an earlier act on the same subject unless the two acts are so clearly inconsistent and repugnant that they cannot, by a fair and reasonable construction, be reconciled and effect given to both." 25 R. C. L., Sec. 170, P. 920.

The emergency clause of the act which appellant claims repeals prior statutes authorizing the election of special judges contains the following recital:

"The fact that there are now so many cases pending on the dockets of the several district courts of this State which cannot be *Page 209 reached because of the press of business and the fact that there are other district judges whose time is not all taken, creates an emergency," etc.

It thus appears that the available method of selecting special judges was not expressed as an existing evil to be remedied.

The provisions of the chapter dealing with the election of special judges are not expressly repealed nor is there a necessary inconsistency or repugnancy between this act of the Fortieth Legislature and the provisions of Chapter 1, Title 40, Revised Statutes, 1925. We think that this last act was merely cumulative of the then existing laws with reference to the selection of a special judge to try cases, and that especially where the regular judge was absent and no other district judge was available, a special judge could be legally elected under the terms of Chapter 1, Title 40 of the Revised Statutes, 1925. The terms of the said act of the Fortieth Legislature do not evidence to our minds an intent and purpose to repeal the then existing law with reference to the selection of special judges.

Nor do we believe there is any merit in appellant's contention that the election of the special judge was void for the reason that it does not appear that the Sheriff opened and adjourned court on the second and third days of the term. The bill of exception shows that court was convened on the morning of the first day and adjourned until the morning of the fourth day, at which time a special judge was elected. The formality of opening and closing court on the second and third days was in our opinion not mandatory under Art. 1922, as claimed by appellant.

Art. 1922, Revised Statutes, 1925, is as follows:

"Should the judge of a district court not appear at the time appointed for holding the same, and should no election of a special judge be had, the sheriff of the county, or in his default any constable of the county, shall adjourn the court from day to day for three days; and if the judge should not appear on the morning of the fourth day, and should no special judge have been elected, the sheriff or constable, shall adjourn the court until the next regular term thereof."

While it is always a question of intention of the Legislature and no universal rule can be laid down applicable to all cases, the following language has been used by an eminent text writer with reference to the construction of directory and mandatory statutes:

"Where the provision is in affirmative words, and there are no negative words, and it relates to the time or manner of doing the *Page 210 acts which constitute the chief purpose of the law, or those incidental or subsidiary thereto, by an official person, the provision has been usually treated as directory * * * Unless a fair consideration of a statute, directing the mode of proceeding of public officers, shows that the legislature intended compliance with the provision in relation thereto to be essential to the validity of the proceeding, it is to be regarded as directory merely * * * and if the act is performed, but not in the time or in the precise mode indicated, it will still be sufficient, if that which is done accomplishes the substantial purposes of the statute." Lewis' Sutherland Statutory Construction, 2nd Edition, Vol. II, Sec. 611, Pp. 1115-1116.

Measured by these rules and looking to what must have been the intent of the Legislature in the enactment of said Article 1922 in connection with Chapter 1, Title 40, Revised Statutes, 1925, we believe the provisions with reference to the formality of opening and adjourning court to be directory only. See King v. State, 234 S.W. 1107.

Such other errors assigned as might justify discussion have not been properly presented for review.

Finding no error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.

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