The San Francisco call., 1896-08-08
CLERK CURRY
WINS HIS CASE.
Decision in His Favor
by the Supreme
Court.
THE FEE BILL OF 1895.
It Is Constitutional, SO Says
the Highest
Court.
A RAP AT THE SHERIFF.
He Did Not Enforce the Act-A Public.
Spirited Official Fully
Sustained.
A RAP AT THE SHERIFF.


ridge, and was perhaps the only officer in
this City who had enforced the act. He
was abused and criticised for so doing, but
the advice of his attorneys was sustained
by Judge Seawell, and now the Supreme
Court says Judge Seawell was right. Mas
tick & Mastick were attorneys for Miller
ct al, whose claim is here shown to be
wholly without foundation.
1t is understood that the Sheriff has ig-
nored the act Of 1895, under advice, of
course. Ii SO, the Sheriff may be liable to
the City for thousands of dollars, which
he should have collected.
The decision is a most important one.
1t may have bearing on the question as
to whether the present County officers
hold Office for two or four years. This
matter is now in the Supreme Court
The following is the decision:
S. F., No. 394 Dept. Q.
Henry Miller ct al, appellants, vs. Charles
+. Curry, respondent.
The action is made to compel defendant to
file an answer IN a civil case without the pay
ment of the fees required by the act of March
%, 1895, stablishing the fees of county,
township and other officers and of juries and
witnesses in this State. Statute of '95, page
26S.) The sole question presented on this ap-
peal and therefore the only question to be de-
cided, is the applicability of the said act of
1898 to the City and County of San Francisco
At the time of the adoption of the present con-
stitution the fee bill applying to the City and
County of San Francisco was found in the act
passed February 9, 1866. Statute 1866,
page 66) If the act was repealed by the act
OF 1895, then the judgment OF the trial court
is correct. If, on the other hand, the act of
1866 is still in force, appellants conten tion
must prevail.
Appellants argued that the act of March %,
1895, though general act, does not in terms
repeal the act of 1866, that there is no neces-
sary repeal by implication, that it does not in
and that, therefore, the general statute is to be
read as silently excluding from its operation
the special statute of 1866.
By article II, section 5, of the constitution
the Legislature is enjoined to provide a uni
form system of county government; by vari-
Gus statutes to regulate the compensation of
county officers in proportion to their duties
and to provide for the strict accountability OF
all such officers for the fees and moneys col
lected by them in their official capacity. BY
section 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 a. section 25, of the constitu-
tion the Legislature is prohibited from passing
special or local laws affecting the fees or sala-
ries OF any officer Sub 29) or prescribing
the powers and duties of officers in counties,
cities and cities and counties Sub. 2S) or to
regulate city or township business Sub. 81.
The law under consideration is general in
| its terms, and, while 1t makes no distinct
mention of officers in consolidated govern
ments, 1t 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 Off
| GERS do not lose their distinctive character as
county officers and of city officers merely be-
| cause they hold within the corporate limits OF
| such governments. The County CLERK of the
| City and County OF San Francisco, Sheriff of
the City. and County of San Francisco, Re-
| corder of the City and County of San Fran
cisco are each and all county Off
GERS. They have no place properly
as. officers Of the. City. Upon the
| is distinctly and separately City officer, as
| distinguished from County officer. A law,
| therefore, which under the constitutional
mandate undertook to regulate the duties o, or
all the basic requisites of the constitution.
| that all laws of a general nature shall have q
| uniform operation (Con. Art. !, Sec. 2) If it
should be held that its terms did not apply
| to and were not meant to apply to county
| officers IN consolidated governments. And it
| must therefore be concluded, without room
| for question: that the act under consideration
| Is in its terms applicable to the City and
County of San Francisco.
But when this point has been reached, ap-
pellant contends that he may invoke the rule
| ates VS.. Refs, 95 Cal. 142, ana that under the
authority of this case the City and County of
San Francisco must be excepted from the oper-
alton OF the law, and all that this court did in
the Refs case was to recognize Ger tain well set
tied principles governing the Interpretation of
statutes. 1t founded the decision in that par
ticuiar case upon the maxim that repeaIs by
implication are not favored, and that where
permissible an earlier special statute will be
construed to harmonize with general later
one. 1t was, in short, but the application of
the maxim, "Generalia specialibus non de-
rogant."
more than that in arriving at the intention of
the Legislature, which is always to govern, and
in endeavoring to reach that intention from
the act ltself-unless there be plain and ex-
plicit terms of repeal in the latter act, or un-
less the provisions of the two acts be so incon-
sistent that both may not stand-it will be as
sumed that the Legislature in making general
provision for all cases diu not mean to destroy
the effect of rule laid down with explicit
care and directness and applicable to partic-
ular class ofcases. But this after all is method
of arriving at the legislative intention when
other and better means are not available. So
it was held in the Refs case that there was no
such repugnancy in the latter act as made
plain the intention OF the Legislature that the
moneys provided for in the earlier act were
no longer to be paid over to the Home of the
Inebriates.
ever, OF equal dignity and potency. The rules
that we have been considering apply only in
q case where q repugnancy between the acts is
not manifest. II such repugnancy exists, then
it is well settled that the earlier act must fall
2O6); only so far as the two acts are not in
their terms incompatible with each other is
the earlier act allowed to stand 1t is a funda-
mental rule for the Interpretation of statutes
that where the instrument is susceptible of two
permissible constructions, by one OF which 1t is
valid, by the other of which it is void, the one
in favor of its validity and of natural right
will prevail, for courts will only upon the
clearest showing of inyalidity overthrow the
enactments of q coordinate department OF
Government. The Legislature is presumed to
know the constitution and the limitations
upon its powers therein set forth.
In the case at bar, as has been said, the
Legislature had only the power to pass gen.
eral law upon the subject in question appl1ca-
Bile to all county officers. If 1t were the legis-
lative intent-and the Legislative intent is
always the ultimate fact to be determined
to except the county officers Of the City and
County of San Francisco from the operation OF
the law, this might as we'll have been done by
an exception expressed In the terms of the act
itself No one would have moments ques-
tion but that such an exception would impair
the general opera tion of the law and thus vfo-
late the provisions of article II, section 2, OF
the constitution.
In that event either the exception would be
void. or if inseparable from the other parts OF