§§ 4481, 4482

(1200)

6. In case of conflict. Such construction must be given, in case of conflict between sections of the different codes, that the provisions of both codes may, if possible, be given effect.-Gonzales vs. Wasson, 51 Cal. 295, 297. See People vs. Applegarth, 64 Cal. 229, 30 Pac. Rep. 805; City of San Diego vs. Granniss, 77 Cal. 511, 19 Pac. Rep. 875; Gleason vs. Spray, 81 Cal. 217, 15 Am. St. Rep. 47, 22 Pac. Rep. 551; People ex rel. Weatherly vs. Golden Gate Lodge, 128 Cal. 257, 261, 60 Pac. Rep. 865; People vs. Seeley, 137 Cal. 13, 69 Pac. Rep. 693. See post § 4482 and note.

7. Same-Which to prevail. "If the

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provisions of any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject-matter of such title.-People vs. Central Pac. R. Co., 83 Cal. 393, 397, 23 Pac. Rep. 303.

8. "ELISOR," used in one code, is used with reference to its definition given in another code.-Bruner vs. Superior Court of San Francisco, 92 Cal. 239, 246, 28 Pac. Rep. 341. See McDermot vs. Barton, 106 Cal. 194, 198, 39 Pac. Rep. 538; People vs. Fellows, 122 Cal. 233, 237, 54 Pac. Rep. 830. See also 226 Code Civ. Proc. and note.

1. Applied, cited, construed, referred to. 2. Rule laid down obtains only where there is a conflict.

1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Odd Fellows' Sav. Bank vs. Banton, 46 Cal. 604, 609 (applied); Fessenton vs. Summers, 62 Cal. 484, 487 (applied); People ex rel. Travers vs. Freese, 76 Cal. 633, 636, 637, 638, 18 Pac. Rep. 812 (cited); Wood vs. Varman, 83 Cal. 46, 48, 23 Pac. Rep. 137 (cited); People vs. Southern Pac. R. Co., 83 Cal. 393, 397, 23 Pac. Rep. 303 (cited); People ex rel. Travers Freese, 83 Cal. 453, 455, 23 Pac. Rep. 378 (cited); Malone vs. Bosch, 104 Cal. 680, 683, 38 Pac. Rep. 515 (construed); London & S. F. Bank vs. Parrott, 125 Cal. 472, 481, 73 Am.

vs.

St. Rep. 64, 58 Pac. Rep. 164 (applied); People vs. Norris, 144 Cal. 422, 424, 77 Pac. Rep. 998 (cited).

2. RULE LAID DOWN OBTAINS ONLY WHERE THERE IS A CONFLICT. — Rule laid down in this section that "if provisions of any title conflict with or contravene provisions of another title, provisions of each title must prevail as to all matters of questions arising out of subject-matter of such title," obtains only where there is a conflict. It implies that where there is no conflict, provision will be valid, although in sense of that rule it is not in regard to a question arising out of subject-matter of that title. Malone vs. Bosch, 104 Cal. 680, 683, 38 Pac. Rep. 515.

1. Applied, cited, construed, referred to. 2. Broad language-Effect of.

3. Head-notes of chapter.

4. Same Weight to be given.

5. Same-Limitation of rule.

6. Headings of chapters or titles.

7. 8. Same-Former rule.

1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Odd Fellows' Sav. Bank vs. Banton, 46 Cal. 603, 608 (applied); Ham vs. Santa Rosa Bank, 62 Cal. 125, 136, 45 Am. Rep. 654 (applied); People ex rel. Travers vs. Freese, 83 Cal. 453, 455, 23 Pac. Rep. 378 (cited); Southern Pac. R. Co. vs. Painter, 113 Cal. 247, 257, 45 Pac. Rep. 320 (cited).

2. "BROAD LANGUAGE used in this section-'all matters and questions arising out of the subject-matter of such chapter'cannot fail to strike the attention on 2

mere perusal of the section.".-Rule applied, Ham vs. Santa Rosa Bank, 62 Cal. 125, 137, 45 Am. Rep. 654.

3. HEAD-NOTES OF CHAPTER in which the section under consideration occurs, may be resorted to for the purpose of determining the correct interpretation in those cases where the language of the section is doubtful.-Barnes vs. Jones, 51 Cal. 303, 305; Ex parte Koser, 60 Cal. 177, 192, 205.

4. Weight to be given.-The head-notes preceding each article of the code are held to be entitled to more consideration than the "title" to the entire act in construing a doubtful or ambiguous section. "They are parts of the statute limiting and defining the sections to which they refer. Το refuse to give effect to them, according to their import, would be to make the law, not administer it."-Sharon vs. Sharon, 75 Cal.

1, 16, 16 Pac. Rep. 345. See Barnes 7s. Jones, 51 Ca.. 303; Ex parte Koser, 60 Cal. 177, 206; Williams vs. People, 45 Barb. (N. Y.) 201; People vs. Molyneux, 40 N. Y. 113, affirming 53 Barb. (N. Y.) 15.

a

5. Limitation of rule.-It is thought the rule of construction laid down in Sharon vs. Sharon, supra, for the reasons assigned in the opinion, is only applicable to and should be limited to the original codes and headnotes thereto, and does not include the new sections of the codes which have been enacted from time to time by the legislature, for the reason that such new sections, when enacted by the legislature, are not, as rule, provided with head-notes; the headnotes, or "marginal headings" in the printed laws, being supplied by the secretary of state, or by some one under his direction, after the adjournment of the legislature, and for that reason such head-notes, or "marginal headings," are no part of the law itself. All those sections which are provided with head-notes when passed by the legislature, will be subject to the above rule of construction.

6.

HEADINGS OF CHAPTERS, OR TITLES of chapters, are a portion of the statute, and may be examined for the purpose of determining the particular intent of the legislature with regard to the chapter in which the section to be construed is placed.-Keyes vs. Cyrus, 100 Cal. 322, 325, 38 Am. St. Rep. 296, 34 Pac. Rer. 72%

See KERR'S CYC. CIV. CODE § 55 and note.

7. FORMER RULE.-Prior to the passage of the codes, resort was sometimes had to the titles of acts in construing doubtful statutes, as tending to throw some light upon the intention of the legislature. See People ex rel. Flynn vs. Abbott, 16 Cal. 358, 366; State vs. Conkling, 19 Cal. 501, 512; People ex rel. Ferguson vs. San Francisco, 36 Cal. 595; Hagar vs. Board of Supervisors, 47 Cal. 222, 232.

8. The title, however, had but little weight, and was never allowed to enlarge or control the language in the body of the act. Hagar vs. Board of Supervisors, 47 Cal. 222, 232.

I. Generally-Code Commissioners' Note. 1. Applied, cited, construed, referred to. 2. Origin and nature of this section.

3. Proximate subjects of construction - Authorities.

4. Doubtful or ambiguous sections.
5. Right acquired under interpretation.
6. Custom may acquire force of law.

II. Application of Code Rule.

7. Rule of section applies, when. 8. Conflict between titles.

9. Pleadings in civil actions.

I.

1.

GENERALLY-CODE COMMISSIONERS'

NOTE.

Sav.

APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Odd Fellows' Bank vs. Banton, 46 Cal. 603, 608, 609 (applied); People ex rel. Travers vs. Freese, 76 Cal. 633, 637, 18 Pac. Rep. 812 (cited in dis. op.); People ex rel. Travers vs. Freese, 83 Cal. 453, 455, 23 Pac. Rep. 378 (cited); In re Bergin, 100 Cal. 376, 378, 34 Pac. Rep. 867 (cited).

2.

ORIGIN AND NATURE OF THIS SECTION. In a note appended to this section the code commissioners say that it is the rule adopted, or rather invoked, in the case of People ex rel. Fowler vs. Wells, 11 Cal. 329, 338, that it and the three succeeding sections, by more particularly defining the subject-matter to be controlled by the section, article, chapter or title, though it does not abrogate the rule laid down by the supreme court in the case of Taylor vs. Pol. C.-76

Palmer, 31 Cal. 240, 244, that where two sections of the same act are pari materia they are to be read together in order to ascertain the intent of the legislature. (See People ex rel. Board of Harbor Commissioners vs. Broadway Wharf Co., 31 Cal. 33; McMinn vs. Bliss, 31 Cal. 122; Nicholson Pavement Co. vs. Painter, 35 Cal. 699, 708; Leet vs. John Dare S. M. Co., 6 Nev. 218. 222; Braithwaite vs. Cameron, 3 Okla. 630, 635, 38 Pac. Rep. 1084) provides a rule for deciding any question as to which of two sections, articles, chapters, or titles controls.

3. PROXIMATE SUBJECTS OF CONSTRUCTION -Authorities. On proximate subjects of construction the code commissioners, in the same note, refer to cases of City of San Francisco vs. Hazen, 5 Cal. 169, 172; French vs. Teschemaker, 24 Cal. 518, 537; People vs. Frisbie, 26 Cal. 135, 139, going generally to favor that construction which makes the law consistent and of vitality, and discouraging a construction which makes it obnoxious to the constitution.

4. DOUBTFUL OR AMBIGUOUS SECTIONS. To determine the true interpretation of the terms of a doubtful or ambiguous section, it should be read with the context on the same general subject, making them consistent.-People vs. White, 34 Cal. 183.

5. RIGHT ACQUIRED UNDER INTERPRETATION.-Where rights have been ac

14484 (1202)

quired under a contemporaneous interpretation of a statute, courts will uphold that interpretation, where possible.-In matter of Will of Warfield, 22 Cal. 51, 71, 83 Am. Dec. 49; Panaud vs. Jones, 1 Cal. 488. See Rogers vs. Goodwin, 2 Mass. 475; Stuart vs. Laird, 5 U. S. (1 Cranch.) 299, bk. 2 L. ed. 115.

6. CUSTOM MAY ACQUIRE THE FORCE OF LAW, and property rights acquired in accordance therewith will be upheld by the court, where possible.-Panaud vs. Jones, 1 Cal. 488, 498, 505. See Castro vs. Castro, 6 Cal. 158, 161; In matter of Will of Warfield, 22 Cal. 51, 71, 83 Am. Dec. 49; Donner vs. Palmer, 31 Cal. 500; O'Donnell vs. Glenn, 9 Mont. 452, 465, 23 Pac. Rep. 1018; Slidell vs. Grandjean, 111 U. S. 412, 421, bk. 28 L. ed. 321, 4 Sup. Ct. Rep. 475.

See post 4484 and note par. 5.

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only where there is a conflict. It implies that where there is no conflict a provision will be valid, although in the sense of that rule it is not in regard to a question arising out of the subject-matter of the title.'Malone vs. Bosch, 104 Cal. 680, 683, 38 Pac. Rep. 516.

8. CONFLICT BETWEEN TITLES.-The rule prescribed in this section must prevail in determining which section shall stand as the law in the case.-People ex rel. Travers vs. Freese, 76 Cal. 633, 637, 18 Pac. Rep. 812.

See post 4484 and note.

9. PLEADINGS IN CIVIL ACTIONS.Part II title 6 of the Code of Civil Procedure is the only title in the four codes devoted specially to pleadings in civil actions and is therefore the title which 4481 of the Political Code declares must prevail as to all matters and questions arising out of that subject-matter.-People vs. Central Pac. R. Co., 83 Cal. 393, 397, 23 Pac. Rep. 303.

1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Odd Fellows' Sav. Bank vs. Banton, 46 Cal. 603, 609 (applied); Ham vs. Santa Rosa Bank, 62 Cal. 125, 137, 45 Am. Rep. 654 (applied); Emeric vs. Alvarado, 64 Cal. 529, 609, 2 Pac. Rep. 418 (applied); People vs. Brooks, 65 Cal. 295, 299, 4 Pac. Rep. 7 (cited); People vs. Dobbins, 73 Cal. 257, 259, 14 Pac. Rep. 860 (construed); People ex rel. Travers VS. Freese, 76 Cal. 633, 637, 18 Pac. Rep. 812 (cited); Hall vs. Kerrigan, 135 Cal. 4, 7, 66 Pac. Rep. 868 (applied).

2. INTENTION AND ORIGIN OF SECTION. In a note referring to this section in connection with the two preceding it and $$ 4468, 4478, 4479, 4480, the code commissioners remark that the obvious intention of these sections, establishing rules of construction, cannot be mistaken, and as authority for them refer to City etc. Sacramento vs. Bird, 15 Cal. 294.

3. PURPOSE OF THESE RULES was, а у the commissioners, to harmonize the

codes and all parts of them, and to give some effect to their every provision, which has long been held to be the true rule, and the courts will not reject any provision, unless clearly repugnant under these rules.

4. RULES AS TO CONFLICT.-The code commissioners suggest that sections are not to be too readily held to be in conflict; that they should be carefully read in connection with the others in the same article, and should be so construed as to make them compatible with the dictates of common sense and the requirements of justice.See Souter vs. Sea Witch, 1 Cal. 162; People ex rel. Burr vs. Dana, 22 Cal. 11; Cullerton vs. Mead, 22 Cal. 95; Seabury vs. Arthur, 28 Cal. 142; People vs. Waterman, 31 Cal. 412; North Beach & M. R. Co.'s Appeal, 32 Cal. 499. See also Burnham vs. Hays, 3 Cal. 115, 58 Am. Dec. 389; City of San Francisco vs. Hazen, 5 Cal. 169; Taylor vs. Palmer, 31 Cal. 240; People vs. White, 34 Cal. 183; University of California vs. Bernard, 57 Cal. 612. II. DECISIONS AND CONSTRUCTIONS. 5. ESTABLISHED RULES PRESERVED —Exception.-This section of the code ought not to be so construed as to change the old and well-established rules, unless it clearly appears that at the time of its passage such was the legislative intent. There is nothing to indicate such an intent; on the contrary, the section seems to be only the plain expression of what was already well-established law.-People vs. Dobbins 73 Cal. 257, 259, 14 Paz Rep. 860.

6. LAST SECTION TO PREVAIL.-When conflicting provisions are found in the same chapter or article, the provisions or the sections last in numerical order must prevail. Odd Fellows' Sav. Bank vs. Banton, 46 Cal. 603, 609; Ham vs. Santa Rosa Bank, 62 Cal. 125, 137, 45 Am. Rep. 654; Emeric vs. Alvarado, 64 Cal. 529, 609, 2 Pac. Rep. 418; Hall vs. Kerrigan, 135 Cal. 4, 66 Pac. Rep. 868.

7. This section seems to be only the plain expression of what was the already

established rule that when two laws upon same subject, passed at different times, are inconsistent with each other, the one last passed must prevail.-People vs. Dobbins, 73 Cal. 257, 259, 14 Pac. Rep. 860.

8. Exception to rule.-Unless such construction be inconsistent with the general meaning of such chapter or article.-Ham vs. Santa Rosa Bank, 62 Cal. 125, 137, 45 Am. Rep. 654; Emeric vs. Alvarado, 64 Cal. 529, 609, 2 Pac. Rep. 418.