Mack v. Jastro , 126 Cal. 130 ( 1899 )

Plaintiff, as a resident and taxpayer of Kern county, brought this action to enjoin the defendants, the board of supervisors of the county, from carrying out a contract entered into between them and the intervenor, relative to the sale of refunding bonds of the county. The court decreed a perpetual injunction, and from the judgment the defendants and the intervenor prosecute separate appeals, which, however, may be considered together.

Before the proposition to issue the refunding bonds in question had been submitted to and acted upon by the electors of the county, the supervisors had entered into this contract with Trowbridge Co., under which the sale and purchase of these bonds was agreed upon. The right and power of the supervisors to dispose of the bonds at all is the principal question here presented. By appellants it is contended that this power is found in the County Government Act of 1897 (Stats. 1897, sec. 25, subd. 13), and by the respondents that it is denied to the supervisors and is vested in the treasurer under the provisions of the County Government Act of 1893. (Stats. 1893, sec. 25, subd. 14.) By appellants it is argued that the County Government Act of 1897 supersedes and repeals the County Government Act of 1893 in these particulars, while by respondent it is insisted that the provisions of the two acts are not inharmonious; that no express repeal is declared, and that in these particulars, therefore, the two acts should be so construed that all the consistent provisions of both may stand.

We think, however, that a reading of the two sections at once discloses that the legislature in the County Government Act of 1897 designed and devised a new and complete scheme for the issuance of county bonds, and, while it is true that repeals by implication are not favored, whenever it becomes apparent that a later statute is revisory of the entire matter of an earlier statute, and is designed as a substitute for it, the later statute will prevail, and the earlier statute will be held to have been superseded, even though there be found no inconsistencies or repugnancies between the two. Frequently, these cases arise where the later statute covering the whole subject matter omits or fails to mention certain terms or requirements found in an earlier, and it is insisted, as here, that those particular provisions of the earlier statute should be held to be still in force. But, as is said by the supreme court of the United States in Murdock v. Mayor etc., 20 Wall. 590, where a like question was presented to the consideration of that tribunal: "It will be perceived by this statement that there is no repeal by positive new enactments inconsistent in terms with the old law. It is the words that are wholly omitted in the new statute which constitute the important feature in the questions thus propounded for discussion. . . . . A careful comparison of these two sections can leave no doubt that it was the intention of Congress by the latter statute to revise the entire matter to which they both had reference, to make such changes in the law as it stood as they though best, and to substitute their will in that regard entirely for the old law upon the subject. We are of opinion that it was their intention to make a new law so far as the present law differed from the former, and that the new law embracing all that that was intended to be preserved of the old, omitted what was not so intended, because complete in itself, and repealed all other law on the subject embraced within it. The authorities on this subject are clear and uniform." (Upon this same subject see Pierpont v. Crouch, 10 Cal. 315; Sacramento v.Bird, 15 Cal. 295; State v. Conkling, 19 Cal. 501; Charnock v.Rose, 70 Cal. 189; Black on Interpretation of Laws, 116; Sedgwick on Statutory Law, 124; Fisk v. Henarie, 142 U.S. 459; King v.Cornell, 106 U.S. 395; District of Columbia v. Hutton,143 U.S. 18.) The facts in the case above quoted and in the one at bar are strictly analogous, and the principle declared is pertinent and decisive. It would unduly and unnecessarily prolong this consideration to set forth the two statutes for purposes of comparison and contrast, but, as has been said, a mere reading of the two will at once disclose that the legislature, by the latter, formulated a plan for the issuance of bonds, full and complete in itself, and, therefore, a plan which superseded its earlier declaration on the matter. It is not so much a repeal by implication as it is that, the legislature having made a new and complete expression of its will upon the subject, this last expression must prevail, and whatever is excluded therefrom must be ignored.

This discussion has so far proceeded upon the assumption that there is no inconsistency between the two acts upon the question of the right and power to dispose of the bonds, but there is a direct conflict in this particular, and for this further reason the later act must prevail. The act of 1897 provides that "all acts and parts of acts inconsistent with this act are hereby repealed." As to the disposition of the bonds, it is provided "that said bonds shall be sold in the manner prescribed by said board of supervisors, but for not less than par." By the act of 1893 it is provided that the bonds shall be delivered to the county treasurer and his receipt taken therefor, and he shall sell the same or exchange them under the direction of the board of supervisors on the best available terms, et cetera. And, further, that "no sale shall be made of any such bonds except to the highest bidder, after advertising bids for the purchase of the same for not less than three weeks," et cetera. By the earlier act it is the county treasurer who stands charged with the duty of selling the bonds after advertising for bids. By the later act full power in this regard is vested in the board of supervisors, the only limitation upon the power being that they shall not sell the bonds for less than par.

The provision in the contract that the bonds shall be payable at Wells, Fargo Co.'s Bank at San Francisco, California, even if it be conceded to be void, is a severable provision, and would not invalidate the whole contract. (Los Angeles v. Teed, 112 Cal. 319, 329; Johnson v. Starke County, 24 Ill. 75; Sherlock v.Winnetka, 68 Ill. 530; Endfield v. Jordan, 119 U.S. 680.) The act of 1897 expressly authorizes the supervisors to cause the bonds to be made payable "at the treasury of the county, or at such place as such board may designate, or both." (Stats. 1897, p. 461.) In Los Angeles v. Teed, supra, the discussion turned upon the provision making the bonds payable without the state of California and in the state of New York. It was there said that no law authorized the treasurer to go to New York with the money, and that to remit the money to the bank for payment would be to make the bank a depository agent within the constitutional inhibition. (Const., art. XI, secs. 13, 16.) The mere naming of a bank as the place of payment does not, however, constitute the bank the custodian of funds or the agent of either party. (Hillsv. Place, 48 N.Y. 520; 8 Am. Rep. 568.) Moreover, it appears that Trowbridge Co. has waived this provision in the contract as to place of payment. By the contract the supervisors are called upon, as of right they should do, to issue legal bonds. If this particular provision should be void, it would not warrant a finding that the whole contract is void, nor justify the supervisors in refusing to issue bonds omitting the obnoxious provision as to place of payment.

The judgment appealed from is reversed, and, as the cause was decided upon the pleadings and papers in the case, it is directed that the trial court enter judgment for defendants and intervenor.

McFarland, J., and Temple, J., concurred.