Sherman v. County of Santa Barbara
C. E. SHERMAN v. COUNTY OF SANTA BARBARA
Headnotes
Summary
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Opinion of the Court
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McKinstry, J.:
The only matter in dispute in this case is as to the construction of a clause of the Act “ to regulate fees of office,” etc. (Stat. 1869-70, 148.) The Sheriff is thereby allowed to charge: “For every mile necessarily traveled, in going only, in executing any warrant of arrest, subpoena, or venire, bringing up a prisoner on habeas corpus, taking prisoners before a magistrate or to prison, or for mileage in any criminal case or proceeding; provided, that in serving a subpoena or venire, where two,or more jurors or witnesses live in the same direction, but one mileage shall be charged, thirty cents.”
The Sheriff charged (and the Court below held he was entitled to receive) thirty-one dollars and fifty cents for taking each of five prisoners from the same Magistrate to the County Jail—a distance of one hundred and five miles.
“A proviso,” says Dwarns, “ is something engrafted upon a preceding enactment, for the purpose of taking special cases out of the general enactment, and providing specially for them.” The term, from its origin, suggests the employment of prevision; as if the Legislature had declared “ look out for”—see that the general words of the enacting clause shall not have a particular effect. Hence, “on condition *484 that;” and a proviso implies that the general clause shall have no effect, except upon condition that the proviso be also given effect. There is a technical rule of pleading which distinguishes between provisos and exceptions in the purview or enacting clause of an act. But a proviso, like that contained in the statute we are considering, as broadly separates the service of subpoenas and venires from the duties mentioned in the enacting clause, as if the exceptions were inserted in the purview. It lays down a special rule as to them, for the very purpose of limiting the charge to a single mileage, and because, except for the proviso, the Sheriff, under the rule of the enacting clause, would be entitled to charge for each witness and juryman. Thus the principle of the maxim, “ e%pressio nnius,” etc., applies.
Judgment affirmed.
Morrison, 0. J., and Ross, J., concurred.
How later courts describe this case
Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.
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(proviso implies that the general provision has no effect unless the proviso is given effect)
Cited by 4 cases
View all citing references →Relies on it most ⓘ
- Yavapai County v. O'Neill
- Saslow v. Andrew (In re Loretto Winery Ltd.)
- Steenerson v. Board of County Commissioners
- Loretto Winery Limited, Debtor (Two Cases). Les Saslow, D/B/A Sun Valley Associates, Formerly Known as California Ranch Management Charles Tagliabue Ccrc Farms Chip Arnett Chris Miloslavich v. Paul B. Andrew, Trustee, Valley Farm Management, Inc., Individually and on Behalf of Equitable Life Assurance Society Richard R
Most recent
- Loretto Winery Limited, Debtor (Two Cases). Les Saslow, D/B/A Sun Valley Associates, Formerly Known as California Ranch Management Charles Tagliabue Ccrc Farms Chip Arnett Chris Miloslavich v. Paul B. Andrew, Trustee, Valley Farm Management, Inc., Individually and on Behalf of Equitable Life Assurance Society Richard R
- Saslow v. Andrew (In re Loretto Winery Ltd.)
- Steenerson v. Board of County Commissioners
- Yavapai County v. O'Neill
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