Huffman v. Hall

Beatty, C. J., dissenting.

There are several grounds elaborately presented in respondent’s brief upon one or more of which the judgment of the superior court might perhaps be affirmed, but these matters having been passed over in the opinion of the court it would be profitless to discuss them in a dissenting opinion, and, therefore, I shall make no attempt to do so. It would not be proper, however, to say that I dissent from the judgment without meeting and disposing of the question so presented, and I do not say so. I merely wish to express my dissent from the conclusion and reasoning of the court upon the single point decided in its opinion.

As one of those who participated in the decision of Gloster v. Wade, 78 Cal. 407—here overruled— I am perfectly willing to concede that the provisions of the constitution are of higher authority than that decision, or any decision, but I am unable to perceive the applica*35tion of the doctrine. The provision of the constitution alluded to prescribes the method of amending statutes, and the entire sum and substance of the decisions cited upon its construction is that when a section of the statute is amended, as the constitution directs, the old section ceases to exist at the same time that the new and amended section comes into operation. But none of those cases involved the effect of a saving clause, and, while they are undoubtedly correct as far as they go, the doctrine which they establish is in nowise inconsistent with the proposition conceded in this opinion, that the legislature in amending a statute, or part of a statute, may, by a saving clause, continue the old section or statute in force as to classes of persons, or parts of the state. This proposition was very recently affirmed here in a case which received more careful, and, I may say, more anxious, consideration, than any case that has been before the court during the time that I have participated in its deliberations. In the case of People v. McNulty, 93 Cal. 427, it was held that various sections of the Penal Code relating to the mode of executing a sentence of death were kept in force as to all capital offenses committed prior to their amendment, by virtue of a general saving clause contained in section 329 of the Political Code, and there can be no distinction in principle between a saving clause which keeps a road law in force after amendment as to certain counties of the state and one which keeps a penal statute in force after amendment as to a certain class of offenders.

The legislature then having the undoubted power to preserve the old road law as to a part of the state by a saving clause, the only question in Gloster v. Wade, 78 Cal. 407, was one of statutory construction, whether, in other words, the legislature had by section 38 of the act of 1874 manifested its intention so to preserve the old law in all except the enumerated counties. If it had, by language which, however equivocal, fairly expressed such an intention, there could be no question that it must prevail. After due deliberation the court in Bank, *36without any dissent, adopted the opinion unanimously concurred in by the commissioners, that section 38 was intended to operate as a saving clause, and afterwards a petition for a rehearing was denied, again without dissent expressed by any member of the court.

This decision was, in my opinion, correct, but even if it was erroneous in putting a wrong construction upon the statute, I cannot see how it violated the constitution. It certainly did not concede to the legislature any power which it does not possess, but merely affirmed an intention to exercise a power the existence of which no one denies. .And, unless a contrary meaning is so clearly expressed in the statute as to admit of no difference of opinion, it seems to me that a decision made under such circumstances, concurred in apparently by the whole court and all the commissioners, and deliberately reaffirmed on petition for rehearing, ought to be deemed sufficient authority to call for the same decision here.

But Gloster v. Wade, 78 Cal. 407, is not wholly unsupported. If any law-writer is entitled to be deemed authority upon the statute law of California, Mr. Hittell may fairly claim that honor. His compilations of the statutes and codes were for many years, and until superseded in part by later compilations, commonly cited in all the courts of the state, and certainly enjoyed the reputation of being accurate and trustworthy, which they could not have been if prepared by a compiler ignorant of the effect and construction of saving and repealing clauses. Upon these points I should say that he might properly be regarded as'an expert. Now, by reference to a note under section 2619 of Hittell’s Political Code, 1876, it will be seen that he placed precisely the same construction upon section 38 of the act of 1874, that was subsequently given to it by this court in Gloster v. Wade, 78 Cal. 407. And not only did Mr. Hittell give it that construction, it was so construed and acted upon throughout the state, from the date of its passage, for a period of nine years and until the road law was revised and re-enacted by the statute of 1883.

*37For it is to be observed that not only section 2619 of the Political Code was amended by the act of 1874; more than thirty other sections of the road law, embracing every important provision in it, were either amended or directly repealed by the same act, and, upon the doctrine of the present case, it follows that there was no road law in most of the counties of the state from 1874 to 1883. There was, during that period, not only no statute defining a road, there was no law for establishing, erecting, improving, or maintaining a road or bridge. Ho road district could be created, no road overseer appointed, no tax collected. Yet it is notorious that all these things were continually done throughout the state under the assumed authority of the statute during the entire period when, as we are now told, there was no statute. This is certainly remarkable.

But aside from the mere authority of our former decision, the opinion of Mr. Hittell, and the practical construction of all public officers charged with the care of public roads and bridges for a period of nine years, I rest confidently on the language of section 38 to justify a construction which carried out what no one can doubt was the actual intention of the legislature.

“This act shall apply only to the following counties: Calaveras,” etc. By the words “this act” the legislature could have intended no other act than that of which the section was a part, viz., the amendatory act of 1874, and not the Political Code, of which section 38 never became a part. This act then amending the Political Code was to apply only to the enumerated counties, but how could this be so if it repealed the Political Code in all o(ther counties?

The amendatory act (the only act to which the words “this act” in section 38 can possibly apply) is entitled “An act to amend the Political Code in relation to highways,” and all its operative clauses are in strict conformity to its title, as the following examples will show:

“Section 1. Section 2619 of said code is hereby amended so as to read as follows:
*38“Sec. 4. Sections 2645 and 2646 are hereby repealed.”

These, I repeat, were the operative clauses of “this act,” and if “this act” applied only to certain enumerated counties, and by necessary consequence had no operation in the non-enumerated counties, then, as to such counties, the designated sections of the Political Code were neither amended nor repealed. This, it appears to me, is the plain and obvious and common sense construction of section 38 of the act of 1874, and was, beyond a doubt, what the legislature actually intended.