County of Santa Clara v. Southern Pac. R.R.

6 P. 744, 66 Cal. 642, 1885 Cal. LEXIS 515

• Court: California Supreme Court
• Decided: April 27, 1885
• Docket: No. 9,833
• Status: Published

Opinion

Thornton, J.

The act of 13th March, 1883, (Stats. 1883, p. 297—which is § 4045, Pol. Code) was superseded and repealed by an act passed on next day, commonly known as the county government act. (Stats. 1883, 297, § 25, sub. 27, p. 308.) This was so held in Ex parte Benjamin, 65 Cal. 310.

To take another view, section 184 of the county government act repealed all acts and all parts of acts inconsistent with it. (Stats. 1883, p. 365.) Conceding that the act of 13th of March, 1883 (§ 4045, Political Code) is only repealed so far as it is inconsistent with the county government act, we find nothing inconsistent in the two acts, so far as regards the power to impose the .license in question is concerned. The power to impose this tax' is plainly conferred by sub. 27 of section 25 of the county government act. (Ex parte Benjamin, supra.) Great caution is required in dealing with the maxim referred to by counsel for defendant, expressio unius est exclusio alterius. (See remarks of Lord Chancellor Campbell, in Sanders v. Evans, 8 H. L. Cases, 729, referred to by Broom in his Legal Maxims, 640-1, 627, 6th Am. from London edition, and cases there cited and commented on.) We are of opinion that this maxim, which is a rule of interpretation, has no application here. These acts must be read together and reconciled, if it can be done. Repeals by implication are not favored.

So, reading these acts together, we are of opinion that the latter act enlarges the power conferred by the former.

We are of opinion that the ordinance imposing the tax was properly passed by the board of supervisors of Santa Clara County (see § 26 of the county government act, Stats. 1883, p. 309), and on a day when it could be passed. (Ex parte Benjamin, supra.)

The provisions of this section (26) appear to have been complied with. The ordinance was signed by the chairman of the board, and attested by the clerk. Such is the testimony of the clerk, and there is no other witness.

It does not appear from the record that the seal of the board was copied with the ordinance, when the latter was copied in the ordinance-book offered in evidence; but we would not hold the ordinance void for this neglect of the clerk to comply with the direction to him in the statute (§ 20 of the act last referred to), to record the ordinance at length in the ordinance-book. The ordinance having been properly passed, the omission of the clerk to add the seal of the board to the record of it in the ordinance-book does not render it invalid.

We find nothing in the other points discussed by counsel, and the judgment and order must be affirmed.

So ordered.

Myrick, J., Sharpstein, J., McKee, J., and MoKinstry, J., concurred.