« AnteriorContinuar »
be prosecuted by the attorney-general of the state, in the name of the people of the state of California; and the amount recovered in such actions must be paid to the treasurer of the county, who must place the same to the credit of the district. [New section, approved March 30, 1874; Amendments 1873-4, 59; took effect July 6, 1874.]
The amendatory act of March 30, 1874 (Amendments 1873-4, 1-60), from which many of the foregoing amendments and new sections Repealing clause.
of the Political Code are taken, contained three additional sections, relating to its effect, as follows:
SEC. 116. All provisions of law inconsistent with the provisions of this act are hereby repealed; but no rights acquired, or proceedings taken, under the provisions repealed, shall be impaired or in any manner affected by this repeal; and whenever a limitation or period of time prescribed by such repealed provisions for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this act takes effect, and the same or any other limitation is prescribed by this act, the time which shall have run when this act takes effect shall be deemed part of the time prescribed by this act.
Act, how construed.
SEC. 117. With relation to the laws passed at the present session of the legislature, this act must be construed as though it had been passed on the first day of the present session, and if any of the provisions of this act contravene or are inconsistent with the provisions of any law passed at the present session of the legislature, then the provisions of such law must prevail.
SEC. 118. This act shall take effect on the first Monday of July, eighteen hundred and seventy-four, except so much thereof as relates to immigration, and the authority and duties of the commissioner of immigration, and the enforcement of the duties and penalties therein prescribed, which shall take effect immediately after its enactment.
OF THE DEFINITION AND SOURCES OF LAW-EFFECT AND PUBLICATION OF THE CODES, AND THE EXPRESS REPEAL
PUBLICATION OF THE CODES, AND STATUTES CONTINUED IN FORCE.. 4494 IV. EXPRESS REPEAL OF STATUTES..
DEFINITION AND SOURCES OF THE LAW.
4466. Definition of law.
SEO. 4466. Law is a solemn expression of the will of the supreme power the state.
4467. How expressed.
SEC. 4467. The will of the supreme power is expressed:
1. By the constitution;
2. By statutes.
4468. Common law, when rule of decision.
SEO. 4468. The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, is the rule of decision in all the courts of this state. Stats. 1850, 219.
EFFECT OF THE CODES.
4478. Construction of the codes with relation to the laws passed at the present
SEO. 4478. With relation to the laws passed at the present session of the legislature, the Political Code, Civil Code, Code of Civil Procedure, and Penal Code must be construed as though each had been passed on the first day of the
But see section 3891, in relation to revenue cation of this section in regard to serving sumlaws, and section 4330, in relation to salaries. mons. See secs. 18, 19, ante, and Ex parte Simp Hemstreet v. Wassum, 49 Cal. 273, is an appli- son, 47 Id. 127.
4479. Laws passed at present session prevail.
SEC. 4479. If the provisions of any law passed at the present session of the legislature contravene or are inconsistent with the provisions of either of the
four codes, the provisions of such law must prevail.
another form of stating the proposition con
Commissioners' note: "This section is but not because it is necessary, but to convey to
the layman the idea which the preceding tained in the preceding one. It is placed here tion conveys to the professional reader.'
4480. Construction of codes with relation to each other.
SEC. 4480. With relation to each other, the provisions of the four codes must be construed (except as in the next two sections provided) as though all such codes had been passed at the same moment of time, and were parts of the same statute.
The codes one statute.-The principle of this section was applied in regard to serving summons in an action to annul a certificate of
purchase and right in a location of school lands: People v. Applegarth, 64 Cal. 229.
4481. Conflicts between titles, which to prevail.
SEC. 4481. If the provisions of any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject-matter of such title.
Commissioners' note: "This section is the rule adopted, or rather invoked, in People v. Wells, 11 Cal. 338; and it and the three succeeding sections, by more particularly defining the subject-matter to be controlled by the section, article, chapter, or title, though it does not abrogate the rule laid down in Taylor v. Palmer, 31 Id. 344, that sections of law relating to the same subject-matter are to be read together, in order to ascertain the intention of the legislature, provides a rule for deciding any question as to which of two such sections, articles, chapters, or titles control. Here may be referred to, on proximate subjects of construction, the cases of San Francisco v. Kelsey, 5 Id. 518; French v. Teschemacher, 24 Id. 518;
People v. Frisbie, 26 Id. 135, going generally to favor that construction which makes the law consistent and of vitality, and discouraging a construction which makes it obnoxious to the constitution. The true interpretation of a section, when there is no ambiguity, is to read it with the context on the same general subject, making them consistent: People v. White, 34 Id. 183; and when rights have been acquired under one interpretation of a statute, courts will go far to sustain such construction: In re Warfield, 22 Id. 51. The section is quoted in Fessenden v. Summers, 62 Id. 484, 487, in disposing of a supposed conflict between two sections of the Civil Code, one under guaranty, the other under negotiable instruments."
4482. Conflicts between chapters, which to prevail.
SEC. 4482. If the provisions of any chapter conflict with or contravene the provisions of another chapter of the same title, the provisions of each chapter must prevail as to all matters and questions arising out of the subject-matter
of such chapter.
Headings of chapters may be resorted to to determine the correct interpretation of sections in the chapter: Barnes v. Jones, 51 Cal. 305; Ex parte Koser, 60 Id. 192. Application of rule: Ham v. Santa Rosa Bank, 62 Cal. 125, 136.
4483. Conflicts between articles, which to prevail.
SEC. 4483. If the provisions of any article conflict with or contravene the provisions of another article of the same chapter, the provisions of each article must prevail as to all matters and questions arising out of the subject-matter of such article.
4484. Conflicting sections of the same title, which to prevail.
SEC. 4484. If conflicting provisions are found in different sections of the same chapter or article, the provisions of the sections last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article.
Referring to sections 4468, 4478, 4479, 4480, in connection with the last three sections, the code commissioners state: "The obvious intention of these sections, establishing rules of construction, cannot be mistaken, and as authority for them, the case of Sacramento City v. Bird, 15 Cal. 294, will be readily recognized. They were adopted to harmonize the codes and all parts of them, and to give some effect to their every provision, which has long been held to be the true rule, and the courts will not reject any provision unless clearly repugnant under these rules. * And here in the text
we have the effect of the codes. Sections are
Application of rule: Ham v. Santa Rosa Bank, 62 Cal. 125, 137.
PUBLICATION OF THE CODES.
4494. Codes not published as part of the statutes.
SEC. 4494. The codes passed at this session of the legislature must not be published as part of the statutes passed at this session, but provision must be made by law for their publication.
Provision for the publication of the codes was made by an act passed March 22, 1872; Stats. 1871-2, 481-484.
EXPRESS REPEAL OF STATUTES.
4504. Repeal of repealed statutes not to imply that they were in force.
SEC. 4504. The repeal of any statute or part of a statute heretofore repealed must not be construed as a declaration, express or by implication, that such statute or part of a statute has been in force at any time subsequent to such first repeal.
4505. Express repeal of statutes to be provided for.
SEC. 4505. The express repeal of statutes will be provided for by a separate statute, and such statute, after its passage, must be construed in the same manner, and must have like effect, as if it were part of this code.
Express repeal of statutes.-As being a portion of the history of our codes, the following statement by the code commissioners in regard to the above section is here appended: "A bill providing for the express repeal of statute, prepared by the commission, passed the senate. In the assembly it was referred to the judiciary committee, who, on the last day, recommended its passage; but the speaker ruled that it could
not be taken up against a single objection. That objection was made by a member of the San Francisco delegation (Mr. Splivalo), and the bill was not considered, and consequently did not become a law. We had prepared it with great care, not because we deemed it necessary, but to avoid even a question. Nonaction upon it will not affect the code in any particular manner."
MUNICIPAL CORPORATION BILL.
AN ACT TO PROVIDE FOR THE ORGANIZATION, INCORPORATION, AND GOVERNMENT OF MUNICIPAL CORPORATIONS.
[Approved March 13, 1883.]
ORGANIZATION OF MUNICIPAL CORPORATIONS.
City or town may incorporate.
SECTION 1. Any portion of a county containing not less than five hundred inhabitants, and not incorporated as a municipal corporation, may become incorporated under the provisions of this act, and when so incorporated, shall have the powers conferred, or that may be hereafter conferred, by law upon municipal corporations of the class to which the same may belong. Steps to be taken.
SEC. 2. A petition shall first be presented to the board of supervisors of such county, signed by at least one hundred qualified electors of the county, residents within the limits of such proposed corporation, which petition shall set forth and particularly describe the proposed boundaries of such corporation, and state the number of inhabitants therein as nearly as may be, and shall pray that the same may be incorporated under the provisions of this act. Such petition shall be presented at a regular meeting of such board, and shall be published for at least two weeks before the time at which the same is to be presented, in some newspaper printed and pub. lished in such county, together with a notice stating the time of the meeting at which the same will be presented. When such petition is presented, the board of supervisors shall hear the same, and may adjourn such hearing from time to time, not exceeding two months in all; and, on the final hearing, shall make such changes in the proposed boundaries as they may find to be proper, and shall establish and define such boundaries, and shall ascertain and determine how many inhabitants reside within such boundaries; provided, that any changes made by said board of supervisors shall not include any territory outside the boundaries described in such petition. They shall then give notice of an election to be held in such proposed corporation, for the purpose of determining whether the same shall become incorporated. Such notice shall particularly describe the boundaries so established, and shall state the name of such proposed corporation, and the number of inhabitants so ascertained to reside therein, and the same shall be published for at least two weeks prior to such election in a newspaper printed and published within such boundaries, or posted, for the same period, in at least four public places therein. Such notice shall require the voters to cast ballots which shall contain the words" For incorporation," or "Against incorporation," or words equivalent thereto; and also the names of persons voted for to fill the various elective municipal offices prescribed by law for municipal corporations of the class to which such proposed corporation will belong.
Election, how conducted.
SEC. 3. Such election shall be conducted in accordance with the general election laws of the state, and no person shall be entitled to vote thereat unless he shall be a qualified elector of the county, enrolled upon the great register thereof, and shall have resided within the limits of such proposed corporation for at least sixty days next preceding such election. The board of supervisors shall meet on the Monday next succeeding such election, and proceed to convass the votes cast thereat; and if, upon such canvass, it appear that a majority of the votes cast are for incorporation, the board shall, by an order entered upon their minutes, declare such territory duly incorporated as a municipal corporation of the class to which the same shall belong, under the name and style of the city (or town, as the case may be) of (naming it), and shall declare the persons receiving, respectively, the highest number of votes for such several offices to be duly elected to such offices. Said board shall cause a copy of such order, duly certified, to be filed in the office of the secretary of state; and from and after the date of such filing, such incor