Sherman v. County of Santa Barbara

McKinstry, J.: The only matter in dispute in this case is as to the construction of a clause of the Act “ to regulate fees of office,” etc. (Stat. 1869-70, 148.) The Sheriff is thereby allowed to charge: “For every mile necessarily traveled, in going only, in executing any warrant of arrest, subpoena, or venire, bringing up a prisoner on habeas corpus, taking prisoners before a magistrate or to prison, or for mileage in any criminal case or proceeding; provided, that in serving a subpoena or venire, where two,or more jurors or witnesses live in the same direction, but one mileage shall be charged, thirty cents.”

The Sheriff charged (and the Court below held he was entitled to receive) thirty-one dollars and fifty cents for taking each of five prisoners from the same Magistrate to the County Jail—a distance of one hundred and five miles.

“A proviso,” says Dwarns, “ is something engrafted upon a preceding enactment, for the purpose of taking special cases out of the general enactment, and providing specially for them.” The term, from its origin, suggests the employment of prevision; as if the Legislature had declared “ look out for”—see that the general words of the enacting clause shall not have a particular effect. Hence, “on condition [484]that;” and a proviso implies that the general clause shall have no effect, except upon condition that the proviso be also given effect. There is a technical rule of pleading which distinguishes between provisos and exceptions in the purview or enacting clause of an act. But a proviso, like that contained in the statute we are considering, as broadly separates the service of subpoenas and venires from the duties mentioned in the enacting clause, as if the exceptions were inserted in the purview. It lays down a special rule as to them, for the very purpose of limiting the charge to a single mileage, and because, except for the proviso, the Sheriff, under the rule of the enacting clause, would be entitled to charge for each witness and juryman. Thus the principle of the maxim, “ e%pressio nnius,” etc., applies.

Judgment affirmed.

Morrison, 0. J., and Ross, J., concurred.