People ex rel. Flynn v. Abbott

Cope, J. delivered the opinion of the Court

Field, C, J. concurring.

This is an action in the nature of a quo warranto, brought by the Attorney General, for an alleged usurpation of the office of Pilot for the port of San Francisco. The defendants demurred to the complaint, and at the same time filed an answer setting up certain new matter in defense of the action. The plaintiffs demurred to the new matter set up in the answer. The first of these demurrers was sustained, and the second overruled. The plaintiffs refused to amend, and a judgment was rendered in favor of the defendants. The errors assigned, relate to the decision of the Court upon the demurrers.

The demurrer to the complaint was improperly sustained. The objections on the ground of a misjoinder of parties, and of causes of action, are not urged, and we shall, therefore, treat them as abandoned. No relief is asked in favor of the relator, and the allegations of the complaint, setting forth his right to the office, are superfluous and immaterial. Besides, no question, as to the sufficiency of these allegations, can be raised upon a general demurrer. The complaint being good, as against the defendants, the demurrer should have been overruled. If the allegations are insufficient to authorize a determination of the rights of the relator, the proper course will be to disregard them. We do not see that the defendants are interested in the question. So far as they are concerned, the object is to determine their right to hold the office which they are charged with usurping, and the maintenance of this right is not involved in the denial of the rights asserted by the relator. At least, the contrary does not appear in the complaint, and, of course, in passing upon the demurrer, we can only consider such questions as are raised by it. As against the defendants, the complaint contains a statement of all the facts necessary to maintain the action. It avers that they hold, use, exercise and enjoy the office, without a license for that purpose. We are unable to perceive any substantial *365 objection to this averment. No person can hold the office without a license, and an usurpation is charged in direct and unequivocal terms. It being averred that they hold and enjoy the office, and have no license authorizing them to do so, nothing further is required to put them upon them defense. These are the facts constituting the cause of action, and the only facts necessary to be stated.

This is sufficient to reverse the judgment, but as the material question in the case arises upon the demurrer to the answer, it would be improper to send the case back without disposing of this question. The Legislature, on the twenty-first of April, 1860, passed an act entitled “An Act amendatory of and supplemental to an Act to establish Pilots and Pilot Regulations for the port of San Francisco, passed May 11th, 1854, and of the several Acts amendatory thereof.” This act establishes a complete system of Pilot regulations for the port of San Francisco, and contains a clause repealing the acts mentioned in the title, and all other acts and parts of acts in conflict with its provisions. The question is, whether the effect of this act was to legislate out of office Pilots licensed under previous statutes, whose terms of office had not expired when the act went into operation. The solution of this question depends upon the construction of the act itself, and in arriving at a conclusion, we have given to the subject a patient and careful examination. In the title, the act is declared to be amendatory of, and supplemental to, the several statutes then in existence upon the subject of Pilots and Pilot regulations for the port of San Francisco. It is contended that the title is no part of the act, and cannot be referred to for the purpose of ascertaining the import and meaning of its terms. But the rule seems to be, that where the meaning of the body of the act is doubtful, the title may be relied on as an assistance in arriving at a conclusion. Of course, it cannot be used for the purpose of restraining or controlling any positive provision of the act, but in cases of doubt it is frequently resorted to as a means of ascertaining the intention of the Legislature. Taken, says Sedgwick, in connection with other parts of the statute, it may, where the intent is not plain, assist in removing ambiguities. It is further contended, that the title in this case is repugnant to the purview of the act, and that no effect can be given to it without overruling the plain provisions of the statute. Undoubtedly, the act is not what it purports to be in the title, but we are of opinion, notwithstanding the repealing clause, that the title expresses, in some degree, the intention of the Legislature. A literal interpretation of *366 that clause would defeat the important purpose of the act. The intention, of course, was to supersede all previous legislation upon the subject; but the object and leading provisions of the act are irreconcilable with the idea that it was intended to sweep from existence, not only the legislation itself, but everything resulting from and depending upon it. The object was to protect the commerce of San Francisco against the dangers of the harbor, and for that purpose provision was made for the organization of a Board of Pilot Commissioners, and the appointment of a sufficient number of competent Pilots. But the Legislature must have seen that if the Pilots previously appointed were, removed from office, considerable time would elapse before their places could be supplied by new appointments, and that in the meantime the commerce of that port would be deprived of this important and necessary protection. It cannot be supposed that the Legislature intended to accomplish this result, and we think that no such construction is authorized by the letter or spirit of the act. One of the provisions of the act requires that applicants for appointment shall undergo a rigid examination before the licensed Pilots, and no person can be appointed except upon such examination, and upon satisfactory evidence of his qualifications for the office. (See Palmer v. Woodbury, 14 Cal. 43 .) An appointment, without a previous examination, would be a nullity, and confer no right or authority upon the person so appointed; and if the effect of the act was to legislate the old Pilots out of office, no appointment can. be legally made, and the act destroys itself. Of course, a construction which defeats the purpose for which the act was passed is not admissible. In addition to this, there is a provision referring in terms to Pilots previously appointed, and requiring that such Pilots “ shall conform to, and be governed by the provisions of this act, and such quarantine laws as may hereafter be enacted.” This provision is susceptible of but one construction,-and if we hold that these Pilots are not retained in office, we deprive it of all sense and meaning.

We think that the proper construction of this act does not give to it the effect of removing from office Pilots licensed under the acts repealed by it, and that no such removal was contemplated by the Legislature. We might give many additional reasons for our opinion, but those already given we deem to be sufficient.

Judgment reversed and cause remanded.