Miller v. Curry
Before: Henshaw
Synopsis
Fees in San Francisco—Repeal of Special Act of 1866 by General Act of 1895—Uniform Operation of General Laws.—The general act of March 28, 1895, establishing the fees of county, township, and other officers and of jurors and witnesses, is applicable to the city and county of San Francisco, and worked a repeal of the special act of February 9, 1866, there being a plain repugnancy between the two acts, which cannot be disposed of except upon the conclusion that the legislature intended in the act of 1895 to pass a valid general law having a uniform operation throughout the state, which necessarily resulted in the repeal of the special act of 1866.
Id.—Rules of Construction—Special and General Statutes—Maxim— Repeal by Implication.—Although repeals by implication are not favored, and, where permissible, an earlier special statute will be construed to harmonize with a general later one, under the application of the maxim, Oeneralia specialibus non derogant; yet these rules only apply where a repugnancy between the two acts is not manifest, and where such repugnancy is manifest, the earlier statute will fall.
Henshaw, J. The action is mandate to compel defendant county clerk to file an answer in a civil case without the payment of the fees required by the act of March 28, 1895, establishing the fees of county, township, and other officers, and of jurors and witnesses, in this state. (Stats. 1895, p. 267.)
The sole question presented on this appeal, and therefore the only question to be decided, is the applicability of the said act of 1895 to the city and county of San Francisco.
At the time of the adoption of the present constitution the fee bill for the city and county of San Francisco was found in an act passed February 9,1866. (Stats. 1865-66, p. 66.) If that act was repealed by the act of 1895, then the judgment of the trial court is correct. If, upon the other hand, the act of 1866 is still in force, appellants’ contention must prevail.
Appellant argues that the act of March 28, 1895, though a general act, does not in terms repeal the act of 1866; that there is no necessary repeal by implication; that it does not in terms apply to the officers of a city and county; and that, therefore, the general statute is to be read as silently excluding from its operation the special statute of 1866.
By article XI, section 5, of the constitution, the legislature is enjoined to provide a uniform system of county government for the various counties, to regulate the compensation of county officers in proportion to their duties, and to provide for the strict accountability of ail such officers for the fees and moneys collected by them in their official capacity. By section 7 of the same article the provisions of the constitution affecting cities and affecting counties are, so far as may be, made applicable to consolidated city and county governments, while by article IV, section 25, of the constitution, the legislature is prohibited from passing special or local laws affecting the fees or salary of any officer (subdivision 29), or prescribing the powers and duties of officers in counties, [646]cities, cities and counties (subdivision 28), or regulating county and township business (subdivision 9).
The law under consideration is general in its terms, and, while it makes no distinct mention of officers in consolidated governments, it undertakes to establish the fees, not alone of county and township officers, but of other officers in this state. In the somewhat anomalous municipal corporations recognized by the constitution, and known to the law as consolidated cities and counties, the officers do not lose their distinctive characters as county officers or of city officers merely because they hold within the corporate limits of such governments. The county clerk of the city and county of San Francisco, the sheriff of the city and county of San Francisco, the recorder of the city and county of San Francisco, are each and all county officers. They have no place properly as officers of a city. Upon the the other hand, the mayor of the city and county is distinctly and separately a city officer as distinguished from a county.
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