County of Fresno v. Fowler Switch Canal Co.

McKinstry, J. — This was a proceeding in the court below to compel by mandamus the defendant, a water and canal corporation, to perform the duty imposed by section 551 of the Civil Code, which provides:—

“Every water or canal corporation must construct and keep in good repair, at all times, for public use, across their canal, flume, or water-pipe, all of the bridges that the board of supervisors of the county in which such canal is situated may require, the bridges being on the lines of public highways and necessary for public use in connection with such highways; and all water-works [360]must be so laid and constructed as not to obstruct public highways.”

Appellant claims the section of the Civil Code to be no longer operative, because repealed by section 2737 of the Political Code. (Amendments of 1883, p. 17.)

The section of the Civil Code requires every such corporation to construct and keep in good repair, over their canals at points where they cross a public highway, the bridges which the board of supervisors may require.

The section of the Political Code reads: “All persons excavating .... ditches across public highways are required to bridge said ditches at such crossing, and on neglect to do so the road overseer for that road district shall construct the same and recover the cost of construction of such persons by action as provided in this section.”

We think the word “persons” includes canal corporations. But the provisions of both codes are in force because they are not necessarily contradictory. The attention of the legislature was not addressed to the same subject. The section of the Civil Code is in a chapter which treats of corporations; that of the Political Code in a chapter which is headed “ Obstructions and Injuries to Highways.” The defendant is not relieved of the duty imposed by the Civil Code by the section of the Political Code. On the contrary, the duty is reasserted. The claim is, that the Political Code limits and defines the consequences which shall follow upon a failure to perform the duty.

The Civil Code does not affix any penalty. But both codes impose the duty from the moment the ditch is dug across the highway. It cannot be presumed that it was the intention of section 2737, Political Code, that a canal across the highway should remain unbridged for a “ reasonable time” (any time would be unreasonable), until the corporation should determine whether or not it would perform its plain duty by building the bridge. The only thing that seems to militate against this view is the