People ex rel. Flynn v. Abbott

Cope, J. delivered the opinion of the Court Field, C, J. concurring.

This is an action in the nature of a quo warranto, brought by the Attorney General, for an alleged usurpation of the office of Pilot for the port of San Francisco. The defendants demurred to the complaint, and at the same time filed an answer setting up certain new matter in defense of the action. The plaintiffs demurred to the new matter set up in the answer. The first of these demurrers was sustained, and the second overruled. The plaintiffs refused to amend, and a judgment was rendered in favor of the defendants. The errors assigned, relate to the decision of the Court upon the demurrers.

The demurrer to the complaint was improperly sustained. The objections on the ground of a misjoinder of parties, and of causes of action, are not urged, and we shall, therefore, treat them as abandoned. No relief is asked in favor of the relator, and the allegations of the complaint, setting forth his right to the office, are superfluous and immaterial. Besides, no question, as to the sufficiency of these allegations, can be raised upon a general demurrer. The complaint being good, as against the defendants, the demurrer should have been overruled. If the allegations are insufficient to authorize a determination of the rights of the relator, the proper course will be to disregard them. We do not see that the defendants are interested in the question. So far as they are concerned, the object is to determine their right to hold the office which they are charged with usurping, and the maintenance of this right is not involved in the denial of the rights asserted by the relator. At least, the contrary does not appear in the complaint, and, of course, in passing upon the demurrer, we can only consider such questions as are raised by it. As against the defendants, the complaint contains a statement of all the facts necessary to maintain the action. It avers that they hold, use, exercise and enjoy the office, without a license for that purpose. We are unable to perceive any substantial [365]objection to this averment. No person can hold the office without a license, and an usurpation is charged in direct and unequivocal terms. It being averred that they hold and enjoy the office, and have no license authorizing them to do so, nothing further is required to put them upon them defense. These are the facts constituting the cause of action, and the only facts necessary to be stated.

This is sufficient to reverse the judgment, but as the material question in the case arises upon the demurrer to the answer, it would be improper to send the case back without disposing of this question. The Legislature, on the twenty-first of April, 1860, passed an act entitled “An Act amendatory of and supplemental to an Act to establish Pilots and Pilot Regulations for the port of San Francisco, passed May 11th, 1854, and of the several Acts amendatory thereof.” This act establishes a complete system of Pilot regulations for the port of San Francisco, and contains a clause repealing the acts mentioned in the title, and all other acts and parts of acts in conflict with its provisions. The question is, whether the effect of this act was to legislate out of office Pilots licensed under previous statutes, whose terms of office had not expired when the act went into operation. The solution of this question depends upon the construction of the act itself, and in arriving at a conclusion, we have given to the subject a patient and careful examination. In the title, the act is declared to be amendatory of, and supplemental to, the several statutes then in existence upon the subject of Pilots and Pilot regulations for the port of San Francisco. It is contended that the title is no part of the act, and cannot be referred to for the purpose of ascertaining the import and meaning of its terms. But the rule seems to be, that where the meaning of the body of the act is doubtful, the title may be relied on as an assistance in arriving at a conclusion. Of course, it cannot be used for the purpose of restraining or controlling any positive provision of the act, but in cases of doubt it is frequently resorted to as a means of ascertaining the intention of the Legislature. Taken, says Sedgwick, in connection with other parts of the statute, it may, where the intent is not plain, assist in removing ambiguities. It is further contended, that the title in this case is repugnant to the purview of the act, and that no effect can be given to it without overruling the plain provisions of the statute. Undoubtedly, the act is not what it purports to be in the title, but we are of opinion, notwithstanding the repealing clause, that the title expresses, in some degree, the intention of the Legislature. A literal interpretation of