Hanley v. Sixteen Horses & Thirteen Head of Cattle

McFarland, J.

The court below sustained the demurrer to the complaint, and plaintiff declining to amend, judgment, from which defendants appeal, was rendered for plaintiff.

The action is in the nature of a proceeding in rem against certain animals, undér an act of the legislature, approved February 4, 1874, concerning animals trespassing upon private property, which was made applicable to several counties, including the county of Santa Barbara. Afterwards, on March 7, 1878, another act of the legislature upon the same subject was approved, which was made applicable also to several counties, including Santa Barbara, although all the counties in the latter act were not identical with those named in the first act. It was held by the court below that the first act was in conflict with the last one, and that the last act really repealed the first; and we think that the court was right in so holding. '

The two acts are conflicting in many points. For instance, under the first act a proceeding in rem might be commenced against the animals, although their owner was known to the plaintiff, as was the case in this action; while under the act of 1878, a proceeding in rem could be commenced only in case the owner was not known. Moreover, it plainly appears that the act of 1878 embraces the whole subject of trespassing animals in the county of Santa Barbara, and was intended by the legislature to be, and was, a substitute for the first-named act. In such a case, the latter act operates as a repeal of the former, although there be in the latter act no express words repealing the former act by name. (Fraser v. Alexander, 75 Cal. 147; Treadwell v. Supervisors of Yolo Co., 62 Cal. 563, and cases there cited; Murdock v. Memphis, 20 Wall. 617.)

Judgment affirmed.

De Haven, J., and Paterson, J.. concurred.