Nicolson Pavement Co. v. Painter , 1868 Cal. LEXIS 148 ( 1868 )

Sprague, J.,

dissenting:

I dissent from the conclusions arrived at by my associates. The questions discussed in the prevailing opinion are to be determined by the statute of April 2d, 1866, entitled “An Act to provide for paving the streets in the City and County of San Francisco,” (Stats. 1865-6, p. 720,) in connection with sections three, four, and five of the statute of April 25th, 1863, entitled “An Act amendatory of Article IV of an Act entitled an Act to repeal the several charters of the City of San Francisco, and to consolidate the government thereof, approved the 19th day of April, 1856, repealing sections thirty-six to sixty-four, inclusive, and Acts and parts of Acts . amendatory and supplementary thereof, and substituting this Act for said Article IV.” (Stats. 1862, p. 391.) These two Acts, so far as relates to the subject matter of paving streets, etc., in the City and County of San Francisco, are in pari materia, and must be read and construed together. (People ex rel. Board of Harbor Commissioners v. Broadway Wharf Company, 31 Cal. 33; McMinn, Exr. v. Bliss et al., 31 Cal. 122; Taylor v. Palmer, 31 Cal. 240.)

“When there are two laws upon the same subject, they must be so construed as to maintain both, if it can be done without destroying the evident intent and meaning of the latter Act. The law does not favor a repeal by implication, and, unless the former Act be referred to, or is clearly repugnant to the provisions of the latter, both must stand.” (Merrill v. Gorham, 6 Cal. 42; Sedgw. on Stat. and Const. Law, p. 127.)

Says Mr. Chief Justice if el son: “As laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subjects, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy of the two is irreconcilable. Hence a repeal by implication is not favored; on the contrary, Courts are bound to uphold the prior law if the two Acts may well subsist together.” (Borven v. Lease, 5 Hill, 226; Canal Company v. Railroad Company, 4 Gill & Johns. 1.)

Where both Acts are merely affirmative, and the substance such that both may stand together, both shall have concurrent efficacy. (1 Bl. Com., 89; Dr. Foster’s Case, 6 Cope, 107; Bank v. Commonwealth, 10 Barr, 448.)

Upon a careful examination of the two statutes above referred to, I am entirely satisfied that, although relating to the same subject matter, they are not, in terms or intent, repugnant or inconsistent.

The manifest design and purpose of the statute of 1866 is to secure the Hicolson pavement wherever a majority of the owners “in frontage of any lot or block of land, fronting on any street, lane, alley,” etc., shall express, in the manner provided, a desire and preference for that particular kind of pavement, and to provide a means by which the wishes of such majority may control the discretion of the Board of Supervisors as to the kind of pavement to be laid; and as a protection to the minority of owners in frontage, in case of action upon petition of such majority, the Act fixes a limit to the cost of such pavement.

Under the Act of 1862 the Board of Supervisors has unlimited discretion as to the kind of pavement to be adopted; and proceeding under that Act, in the manner therein provided, they might (as in this instance) adopt the Uicolson pavement, or any other kind of pavement.

Admitting that the mode of exercising the power, as prescribed by the statutes, is the measure of the power conferred upon the Board, and that in the exercise of the power in accordance with the prescribed mode, it might occur that some one of the safeguards provided by the statute for the protection of lot owners is necessarily weakened or wholly destroyed, it would not, I apprehend, follow as a necessary result that the power is impeached or nullified, nor should such a result follow as a consequence of the partial inadaptability of the mode to a particular subject matter clearly embraced in the special grant of power. The Legislature has delegated the power to pave streets in the most comprehensive terms, and prescribed the mode of its exercise, and clearly, by the passage of the Act of April 2d, 1866, indicated one mode of exercising the power of paving the streets of San Francisco with Ficolson pavement, and the question as to whether the prescribed mode is properly adapted to the particular kind of pavement, is referable to the Legislative, and not to the Judicial Department of the Government.

It is assumed by appellant that inasmuch as the right to lay down Ficolson pavement is by letters patent secured to and held by a single individual or company, it is impossible, under the mode prescribed, to secure to the parties who are assessed for the improvement the benefit of competition in the price of the work, or the right to perform the work themselves at the rate of the lowest bid. With greater propriety it may be assumed that the right to lay down this particular kind of pavement is available to any and all alike who may desire to use it upon any particular street or block, by paying to the owners of the exclusive right a specified sum for each square foot or yard of such pavement which they might desire to lay down, or a percentage upon the contract price of the work; that this exclusive right in the hands of its holders is property, or a commodity in market for sale in limited measure to all and any who are willing to pay for the same at its market value, and that any and all persons who may desire to enter into competition in the performance of the labor and furnishing the materials in the construction of this pavement may obtain the right from the patentee or his assigns, and that the property owners may do the same, if they should elect to do the work in the same maimer and to the same extent as any other commodity or materials necessary to be used in the construction of the proposed improvement. I have been unable to appreciate the fatal objections to the practicable application of the mode prescribed, when applied to Ficolson pavement, which seem to be invoked to negative the power of the Board.