CONLEY, P. J. I dissent. The basic ground of the contention of Mrs. Di Napoli is that the court lacked the power to make the order in question, because she repeatedly demanded and made clear to the court and to the opposing parties that she continued to demand the payment of her witness fee for one day ($4) and mileage ($18) (Gov. Code, § 68093) as a prerequisite to attendance.
Section 68097 of the Government Code provides generally and with no noted exceptions: “Witnesses in civil eases may demand the payment of their mileage and fees for one day, in advance, and when so demanded shall not be compelled to attend until the allowances are paid. ...”
This section of the Government Code, first enacted in 1953, is identical with prior California code sections in effect since the year 1907 (Pol. Code, § 4300g, added Stats. 1907, ch. 282, pp. 553-554; amended Stats. 1909, ch. 438, p. 765; Stats. 1927, ch. 61, p. 109; Stats. 1937, ch. 224, p. 524; Code Civ. Proc., § 1885.1, added Stats. 1951, ch. 655, p. 1850).
As indicating the viewpoint of the Legislature to the effect that one who is subpoenaed for a deposition or required to give such testimony shall be considered a witness entitled to mileage and a witness fee, section 1986.5 of the Code of Civil [206]Procedure states as follows: “Any person who is subpoenaed and required to give a deposition shall be entitled to receive the same witness fees and mileage as if the subpoena required him to attend and testify before a court in which the action or proceeding is pending. ’ ’
As no subpoena was required or used in the instant case, the literal wording of that section does not apply, but the thought behind the enactment of the provision indicates that the Legislature considered any witness required to give testimony on a deposition in the same category with respect to mileage and fee as a witness required by subpoena to attend a trial.
That Mrs. Di Napoli was potentially a witness entitled to the allowances provided by law seems to me to be quite certain. In 54 California Jurisprudence, Second Edition, Witnesses, section 2, page 199, it is said, following the definition contained in section 1878 of the Code of Civil Procedure, that a witness is “. . . a person whose declaration under oath is received as evidence for any purpose, whether on oral examination or by deposition or affidavit.” And section 1879 of the Code of Civil Procedure provides as follows: “All persons capable of perception and communication may be witnesses. All persons, without exception, otherwise than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; . . . ”
Under the code sections and the cases cited herein, a party may be a witness and, unquestionably, Mrs. Di Napoli was called as such through the notices served upon her. (See Ahern v. Superior Court, 112 Cal.App.2d 27 [245 P.2d 568] ; Guardianship of Waite, 14 Cal.2d 727 [97 P.2d 238].)
It seems clear that section 68097 of the Government Code provides for a witness fee and mileage to be paid to all witnesses, after timely demand, and as it further expressly requires that if such are not paid a proposed witness shall not be compelled to attend, the Legislature evidently meant just what it said. As no witness fee and mileage were paid, after demand, Mrs. Di Napoli should not be compelled to give her deposition 120 miles from home, unless there was an express or implied revocation of the section 68097 of the Government Code and its predecessors of identical import. Concededly, no express revocation took place; but the real parties in interest [207]contend, in effect, that there was an implied revocation by reason of the fact that the discovery provisions of the Code of Civil Procedure do not expressly state that a witness fee and mileage are required.
In examining this contention, we must start with a strong presumption against a repeal by implication of any of the successive code sections. (Penziner v. West American Finance Co., 10 Cal.2d 160 [74 P.2d 252] ; California Drive-In Restaurant Assn. v. Clark, 22 Cal.2d 287, 292 [140 P.2d 657, 147 A.L.R. 1028] ; Warne v. Harkness, 60 Cal.2d 579, 587-588 [35 Cal.Rptr. 601, 387 P.2d 377]; City of Burbank v. Metropolitan Water Dist., 180 Cal.App.2d 451, 462 [4 Cal.Rptr. 757].) In 45 California Jurisprudence, Second Edition, Statutes, section 79, pages 597-598, it is said; “Repeals by implication are not favored. Unless express terms are used to disclose the intention to repeal, the presumption is against repeal, especially where the prior act has been generally understood and acted on. If reasonably possible, two laws on the same subject will be so construed as to keep both in effect. The courts are bound to uphold the prior act if it can subsist with the later. They will presume that the legislature did not intend to repeal the former act, unless there is an irreconcilable conflict between them or the later act is a revision of the entire subject matter and a substitute for the former. To overcome the presumption, the two acts must be irreconcilable, clearly repugnant, and so inconsistent that they cannot have concurrent operation, or the intent to effect a repeal must be otherwise expressed, in unmistakable language.’’
It seems obvious that the Legislature did not intend to repeal the code section granting witness fees and mileage to all witnesses. The two acts are not irreconcilable, or clearly repugnant, or so inconsistent that they cannot have concurrent operation. In fact, it is my view that they are entirely consistent and must be applied together.
Fees and mileage are not given as bonuses or prizes, but are intended to assure potential witnesses in civil eases that they will be afforded an opportunity to attend a deposition or court session. The showing of Mrs. Di Napoli is that she needs the money allowed by law for her transportation. To some, in this affluent society, $22 may be a mere bagatelle, scarcely worth mentioning; to others, in a given situation, it may mean the difference between self-respect and naked want. The Legislature, ever since the year 1907, has evidently thought that it was sufficiently important to require its payment, if demand[208]ed, before the necessity of appearing as a witness. She should have been afforded what the code provides for her, and it seems apparent that, if the law is observed, “she shall not be compelled to attend until the allowances are paid.”
Accordingly, I would order that a peremptory writ of prohibition issue, providing that (1) the order of the trial court of April 28, 1967, referred to in paragraph I of the petition, be forthwith annulled and set aside, (2) the court be restrained from enforcing the whole or any part of said order, and (3) the court shall not require petitioner to give her deposition without the timely payment to her of the legal witness fee and mileage demanded by her, as provided by section 68097 of the Government Code.
A petition for a rehearing was denied July 26,1967. Conley, P. J., was of the opinion that the petition should be granted. Petitioner’s application for a hearing by the Supreme Court was denied September 27, 1967.