116 Cal. 111 | Cal. | 1897
Plaintiff was elected district attorney of Los Angeles county at the general election in November, 1892, and entered upon his said office on the second day of January, 1893, that being the first Monday after the first day of January, and his term of office
Sec. 20, art. XX, of the constitution provides as follows: “ Elections of the officers provided for by the constitution, except at the election in the year 1879, shall be held on the even numbered years next before the expiration of their respective terms. Terms of such officers shall commence on the first Monday after the first day of January next following their election.”
Section 4109 of the Political Code, as amended March 7, 1881 (Stats. 1881, p. 72), is as follows: “All elective county, city, and township officers, except superior court judges, superintendents of schools, and assessors, shall be elected at the general election to be held in the year 1882, and at the general election to be held every second year thereafter, and shall take office on the first Monday after the first day of January next succeeding their election, and shall hold office for two years. The years that said officers are to hold office are to be computed respectively from and including the first Monday after the first day of January of any one year to and
It is conceded that if that section of the Political Code is still in force it is conclusive as to what constitutes the official year, and that under its provision the demand made by the plaintiff was unauthorized. It is contended, however, that said section has been repealed, and whether it has been repealed or not is therefore the controlling question.
The County Government Act of 1883 (Deering’s Pol. Code, Appendix, sec. 60, p. 850), is as follows: “All elective county and township officers (except superintendent of public schools and assessors) shall be elected at the general election to be held in November, 1884, and every two years thereafter, and shall take office at 12 o’clock meridian on the first Monday after the first day of January next succeeding their election..... All officers elected under the provisions of this act shall hold office until their successors are elected or appointed and qualified.”
The County Government Act of 1891 (Stats. 1891, sec. 60, p. 314), contained the same provision as to the time when officers should enter upon their office, and contained also the provision that all officers elected under it should hold office until their successors are elected or appointed and qualified.
We think it clear that these subsequent acts repealed section 4109 of the Political Code as amended March 7, 1881, though none of them contained any provision expressly repealing that section. Said section 60 is a revision of said section 4109. It covers the same ground with the exception of the clause defining how the official year shall be computed, but changes a number of its provisions, the more important of which are the following: The old section provided that the election shall be held “at the general election to be held in the year,” etc. The new act inserted the word “ November” in that sentence, thus changing the time of the election
We think the rule was correctly stated by the learned judge of the court below that “wherever it clearly appears that the intention of the legislature by the later act is to revise the entire subject matter of the former, the subsequent act operates as a repeal of the former, although it contains no precise words to that effect.” (Treadwell v. Yolo County, 62 Cal. 564; Charnock v. Rose, 70 Cal. 192; Hanley v. Sixteen Horses, 97 Cal. 183; Exparte Benjamin, 65 Cal. 310.)
In Sedgwick on Statutory Law, page 124, it is said: “ Even if a subsequent statute be not repugnant in all its provisions to a prior one, yet if the later statute was clearly intended to prescribe the only rule which should govern in the case provided for, it repeals the original act.”
Appellant contends, however, that other provisions of the County Government Act of 1891 are inconsistent with and do not justify the conclusion of the court below, and cites the following section of that act:
“Sec. 221. The salaries of such officers named in this act as are entitled to salaries shall be paid monthly out of the county treasury; and it shall be the duty of the auditor, on the first Monday of each and every month, to draw his warrant on the county treasurer*115 in favor of each of said officers for the amount of salary due him under the provisions of this act for the preceding month.”
The above section was also incorporated in the County Government Act of 1893. Section 117 of the County Government Act of 1891 (Stats. 1891, p. 323) provided as follows: “All warrants issued by the auditor during each year, commencing with the first Monday after the first day of January, must be numbered consecutively, and the number, date, and amount of each, and the name of the person to whom payable, and the purpose for which drawn must be stated thereon.”
We do not think these sections sustain appellant’s construction. Said section 221 requires the auditor to draw his warrant on the first Monday of the month in which the term of office expires, yet it may happen, and does occasionally happen, that the first Monday in January is the first day of January, and the term of the incumbent does not in that case expire until the second Monday; and in that case, upon the theory of appellant that the month for which the warrant is drawn is necessarily from the first Monday of the preceding month to the first Monday of the succeeding month, it would clearly appear that the incumbent does not, under his theory, always receive pay for the full time for which he serves, whether his successor is elected and qualified on the day fixed by the statute or not. Indeed, under the statute fixing the commencement and termination of the terms of county officers it can never happen that the term consists of precisely two years, it being sometimes more and sometimes less; and therefore the provision fixing the compensation at an annual sum should be construed as fixing the rate of compensation to be paid for the time the officer actually serves. This ■construction will do exact justice between the preceding and succeeding officers, and not increase the burden to be borne by the people.
The judgment appealed from should be affirmed.
Searls, C., concurred.
Temple, J., Henshaw, J., McFarland, J.