The San Francisco call., 1896-01-15
A Signal Victory in Favor of
the 'Ninety-Five Fee
Bill.
NEW LIGHT ON THE QUESTION.
General Laws Must of Necessity Re.
peal All Special Legislative
Acts.

Judge Seawell has decided the fee-bil
case, and in doing so has upheld County
Clerk Curry in his determination to col
lect fees under the 1895 fee law instead OF
according to the laws of 1898.
The case before Judge Seawel was
brought by Henry Miller, and its only
object was to test the fee law under which
the County Clerk was then acting and to
establish, if possible, the law which should
govern. Miller and others were being sued
by one Lally, and in filing his answer Miller
offered the paper unaecompanied by the
fee OF 81, which the fee law OF 1895 says
shall be paid for the filing of an answer.
The clerk refused to file the paper until the
fee was paid.
Miller then sued for writ of mandate
to compel Mr.. Curry to accept the answer
without fee, and upon this application for
writ the case came before Judge Seawell.
Judge Seawell has denied the writ
The fee-bill litigation dates back since
1866 and before. Prior TO 1866 the fees of
San Francisco were set by various acts
passed at various times, but as these acts
were found unsatisfactory q special law,
applicable only to San Francisco. was
passed, regulating all fees charged in this
City and County.
In 1879 the constitution was adopted.
In it were two clauses apparently of but
little significance in the case of the fees of
this City, but really having a most i'm
portant bearing on the case. One of these
was that no existing law not in conflict
with the terms of the newly adopted con-
stitutlon should be repealed by its adop-
ton; the second was that from the adop-
ton OF the constitution no special laws
should be passed by the Legislature.
In 1893 another fee bill was passed by
the Legislature, but it was found TO have a
special application to this City, and SO
was declared unconstitutional.
In 1895 a third fee bill was passed,
general IN its terms and laying down the
amounts of fees 10 be charged in cities set
forth in the constitutional classification.
1t was under this last fee bill that Mr..
Curry was conducting his office. He had
been operating under the law of 1898, but
when this was Knocked out he went back
TO the one of 1866. He was advised by the
City and County Attorney, however, that
he should consider the law constitutional
until it was declared not to be soSand in
pursuance of this advice he put the 1895
law in operation on October 20, 1895. Two
days later Miller presented his answer to
be filed, and then the last litigation COM
menced.
The case was briefly argued before Judge
Seawell Yesterday morning. Mastick &
Mastick appeared for Miller and S. NJ.
Shortridge represented Curry. In support
OF their application for writ plaintiffs
counsel contended that as the law OF 1866
was special act it could not De repealed
by general law such as the law of 1895.
This law OF 1895 included clause repeal
ing conflicting statutes, but plaintiffs
counsel claimed that as the original act
was especially designed for San Francisco
no law applicable to the entire State could
set II aside.
In answer, Mr.. Shortridge pointed to
the clause OF the constitution which pro-
hibited special laws. If the special law OF
1866 could not be repealed by a general
law and if the constitution specifically for
bids special acts of legislation how then,
| he demanded, could the law of 1866 be
repealed at all? Had the constitution not
interyened, then, he proceeded there
might be reason to suppose that a specific
act would be required to repeal a specific
act; but all such acts are now prohibited,
and the only way under The constitution
that ill-titting and obsolete special legisla-
tion may be mended is by general laws.
such as the fee bill of 1895.
Mr.. Shortridge offered to file further
points and authorities on the case. but
Judge Seaweil declined, saying the consti-
tuition was practically unanswerable and
he would deny the writ without further ar
gument.
The fee bill is part OF the county govern
ment act, and speculation is rife as to the
possibility of making the whole act stand
in this City as well as portion of il. Such
portions as do not conflict with the con-
solidation act can be applied, but the old
question as to whether San Francisco IS
first q city or first county, and how far
county legislation affects IT, is still omen.
A long step toward the solution OF the
difficulty has peen taken, however, in the
victory just gained. The case will be
appealed.