Opinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
COUNSEL
Under the constitution of the state, the amendment of a statute operates as an absolute repeal of the old statute or section so amended. (Norris v. Crocker, 13 How. 429; Billings v. Harvey , 6 Cal. 381; Billings v. Hall , 7 Cal. 3; Morton v. Folger , 15 Cal. 275; People v. Tisdale , 57 Cal. 104; Bishop on Written Laws, sec. 152.) And this even though the amendment takes nothing away from the old law, but merely adds a proviso in certain cases. (Billings v. Harvey , 6 Cal. 381.) The constitutional provision construed in this case (Billings v. Harvey , 6 Cal. 381), viz., subdivision 25 of article IV. of the old constitution, is embraced in subdivision 24 of article IV. of the new constitution, and the language is identical as to the portion construed. A repeal of a statute under which a right of action exists operates as an extinguishment of such right of action, and of actions pending thereon when the repeal takes effect, unless there is a saving clause. ( Sedgwick on Statutory and Constitutional Law, 2d ed., 110 et seq.; Bishop on Written Laws, secs. 117, 117a, and cases cited; McMinn v. Bliss , 31 Cal. 122; Norris v. Crocker, 13 How. 429, and cases cited; Bensley v. Ellis , 39 Cal. 313; People v. Central P. R. R. Co ., 62 Cal. 506; Mayne v. Board etc ., 123 Ind. 132; Key v. Goodwin, 4 Moore & P. 431.) Now, the present article does not authorize wharfingers to collect money at all, and the article must be construed as though originally adopted in the form it now stands. (Bishop on Written Laws, sec. 152a, and cases cited; McKibben v. Lester, 9 Ohio St. 627; Conrad v. Nall , 24 Mich. 278; Holbrook v. Nichol , 36 Ill. 161; Wood v. Election Comm'rs , 58 Cal. 565.)
W. H. Barrows, and J. F. Wendell, for Appellants.
F. S. Stratton, and T. C. Coogan, for Respondent.
JUDGES: Foote, C. Vanclief, C., and Belcher, C., concurred.
OPINION
FOOTE, Judge
[30 P. 132] This action is brought against the defendants, as the sureties on the bond of one William M. H. Haynie, as wharfinger, appointed by the board of state harbor commissioners, to recover certain moneys lost to the said board by the delinquency of said Haynie. The cause was tried before a jury, who returned a verdict for the plaintiff in the sum of $ 800.30. Judgment was rendered accordingly. Upon motion made for a new trial, the court granted the same, unless the plaintiff should remit a certain portion of the judgment. This the plaintiff did, and a new trial was then, by an order, duly denied. From the judgment given and made in the premises, and from the order denying a new trial, this appeal is taken.
Two contentions are made for a reversal of the judgment and order: 1. That the board of harbor commissioners have prosecuted the action without authority of law, because not done on the relation of the attorney-general. 2. That Haynie, the principal on the bond sued on, was appointed in March, 1880, removed from office on the 6th of March, 1883, after the delinquency complained of had taken place, and the action was commenced after a change was made in the statute, whereby the duties of the wharfinger as existing while Haynie was in office were conferred upon another officer, called a collector .
It is contended that after the passage of the amendment to section 2522 of the Political Code on March 7, 1883 (the day following the removal of Haynie from office), the board of state harbor commissioners could not sue for moneys which had been collected and not paid by a wharfinger, as said amendment had taken the collection of moneys from wharfingers and imposed it upon collectors.
We do not perceive how this change in the law, made after the duty was violated, could take away the right to make this wrong-doer responsible for his act, which right existed when he did the act complained of; for while, under the provisions of section 2522 as amended in 1883, the duties of a wharfinger in a matter such as this in hand were taken from him, as such officer, and put upon a collector, section 2523 of the same code, which was enacted in 1876, was in full force when the delinquency of Haynie took place, and was not changed when this action was brought.
Said section provides, among other things, that the board of state harbor commissioners "may institute and prosecute to final judgment actions in the name of the people of the state of California. .. . for the collection of any money due or that may become due the state by authority of this article." (Pol. Code, pt. III., tit. VI., art. IX.)
This money had become due under this article, before the change in the law. Hence we think the authority existed to bring this action and to prosecute it to final judgment, as was done.
We therefore advise that the judgment and order be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are affirmed.