People v. Town of Ontario , 148 Cal. 625 ( 1906 )

The opinion heretofore filed in the above-entitled matter is hereby modified as follows, viz.: The second paragraph of that portion thereof relating to the effect of the act of 1899 (Stats. 1899, p. 37, c. 41), providing for the annexation of uninhabited territory, commencing with the words "Upon this branch of the case," is stricken out, and the following is inserted in lieu thereof:

"Upon this branch of the case, a full consideration of the acts of the legislature satisfies us that the act of 1899 was never designed to in any way affect any of the provisions of the act of 1889, so far as territory which, taken as a whole, may fairly be said to be inhabited territory is concerned, and the evidence in the case at bar was such as to sustain the conclusion of the court below to the effect that the territory here annexed was of that character, notwithstanding the presence of several uninhabited tracts or parcels, each exceeding five acres in area. If the ``territory' proposed to be annexed, regarded as a whole, may fairly be said to be inhabited, the proceedings must be had under the act of 1889, regardless of the number of parcels of land included therein that are uninhabited. Any other construction of the act of 1899 would materially affect the act of 1889, which, it is clearly indicated, was never intended. It is expressly provided in section 5 of the act of 1889 that ``nothing in this act shall be deemed to repeal the provisions of any act now providing for the annexation of inhabited territory.'"

Sloss, J., Shaw, J., Lorigan, J., Henshaw, J., McFarland, J., concurred.