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Act of Jan. 24, 1850, fixing the Time for Acts and Joint Resolutions to take effect.
ARTICLE 35, Sec. 1. All acts and joint resolutions shall take effect from and after their passage, unless some other time is expressly stated therein.
Act of May 1, 1852, for the Authentication of Statutes.
ART. 36, Sec. 1. When a bill, that has passed both houses of the legislature, shall be returned by the governor without his signature, and with objections thereto, and, upon a reconsideration, shall pass both houses by the constitutional majority, it shall be authenticated as having become a law, by a certificate indorsed thereon, or attached thereto, in the following form:
"This bill having been returned by the governor, with his objections thereto, and, after reconsideration, having passed both houses by the constitutional majority, it has become a law, this day of -," which, being signed by the president of the senate and speaker of the assembly, shall be deemed a sufficient authentication thereof, and the bill shall again be presented to the governor, to be by him deposited with the laws in the office of the secretary of state.
ART. 37, Sec. 2. Every bill which has passed both houses of the legislature, and shall not be returned by the governor within ten days, having thereby become a law, shall be authenticated by the governor, causing the fact to be certified thereon by the secretary of state, in the following form:
"This bill having remained with the governor ten days, (Sundays excepted,) and the senate and assembly being in session, it has become a law, this day of, A. D. -" which certificate shall be signed by the secretary of state, and deposited with the laws in his office.
Act of March 14, 1853, concerning Repealed Statutes.
ART. 38, Sec. 1. No act or part of an act repealed by another act of the legislature shall be deemed to be revived by the repeal of the repealing act, without express words reviving such repealed act or part of an act.
1. WHERE a statute is declared to take effect from and after its passage, it takes effect at the very moment of its approval by the governor. And for the purpose of determining the right to an office, it is competent to inquire at what particular point of time in the day an act was approved. People v. Clark, 1 Cal. 406.
2. The court may go behind the record evidence of a statute, and inquire whether it was passed or approved in accordance with the constitution. Fowler v. Pierce, 2 Cal. 165.
3. An act cannot be approved after the adjournment of the legislature. Id.
4. In construing statutes, force and meaning should be given to every part, and courts will not, except when the language is so vague and indefinite as to be wholly destitute of meaning, reject any portion. Cheever v. Hays, 3 Cal. 471.
5. Repeal by implication. Dominguez v. Dominguez, 4 Cal. 186.
6. A subsequent act, special in character, will control the general provisions of a prior act. People v. Phoenix, Jan. T. 1856.
7. Where there are two laws on the same subject they must be so construed as to maintain both, if it can be done without destroying the evident intent and meaning of the later act. Merrill v. Gorham, Jan. T. 1856. 8. If a statute or section of a statute is re-enacted, it is inconsistent with the idea that the old statute or section still remains in force. Billings v. Harvey & Tibbetts, Oct. T. 1856.
9. The law does not favor a repeal by implication, and unless the former act be referred to, or is clearly repugnant to the provisions of the latter, both must stand. Id; Scofield v. White, April T. 1857. See Constitutional Construction.
Act of April 15, 1851, concerning the Office of Public Administrator, and making it Elective.-[R. A. St. 1850, 403. ARTICLE 39, Sec. 1. There shall be elected at the general election in and for each of the counties of this state, by the electors thereof, a public administrator, who shall continue in office for the term of two years and until his successor is elected and qualified.—[Am. April 4, 1854, R. S. St. 1851, 206, C. L. 846.
ART. 40, Sec. 2. Before entering upon the duties of his office he shall execute a bond with sureties, to be approved by the probate judge, in a sum not less than thirty thousand dollars, and which may at any time be increased, in the discretion of the probate judge, conditioned for the faithful performance of all the duties enjoined upon him by law, and particularly that he will account for, and pay over all moneys and property that may come into his hands, as such public administrator; provided, that the probate judge may, in his discretion, for good reason shown, fix the amount of the bond to be given by the public administrator, at any sum not less than fifteen thousand dollars.-[Am. May 7, 1855, R. S. St. 1851, 206, C. L. 846.
ART. 41, Sec. 3. He shall perform such duties and receive such compensation as may be prescribed by law.
ART. 42, Sec. 4. No public administrator now in office, or hereafter elected under this act, shall be interested directly or indirectly in expenditures of any kind made on account of any estates of deceased persons; nor shall he be associated in business or otherwise with any person who shall be so interested, and he shall annex to his report every six months as required by this act, an affidavit taken before a county or district judge to that effect.
ART. 43, Sec. 5. The public administrator shall, once in every six months, make to the probate judge, under oath, a return of all estates of deceased persons, which have come into his hands, the value of the same, the expenses, any, paid thereon, and the balance, if any, remaining in his hands; said return to be published six times in some newspaper in the county, or if there be no newspaper published in the county, then it shall be posted, legibly written, or printed, in the office of the county clerk of the county; and he shall, after a final settlement of the affairs of any estate, if there be no heir or heirs, or other claimant thereof, pay over to the county treasurer, to be by him paid into the state treasury, all moneys and effects in his hands, belonging to said estate; and in the event of all or any such moneys and effects having escheated to the state, the same shall be disposed of as other escheated estates.-[Am. May 7, 1855, R. S. St. 1851, 206, C. L. 846.
[Sections 6, 7, 8, executed. St. 1851, 207, C. L. 847. Sec. 9, repealed April 4, 1854. St. 1854, 27; St. 1851, 207.] Act of May 1, 1851, to regulate the Settlement of the Estates of Deceased Persons.-[R. A. St. 1850, 403.
ART. 44, Sec. 303. For any willful misdemeanor in office, the public administrator may be indicted, and fined in any sum not exceeding two thousand dollars, and removal from office.
ART. 45, Sec. 304. Whenever any stranger or person without known heirs shall die intestate, in house or premises of any other person, it shall be the duty of such person, or any one knowing thereof, to give immediate notice to the public administrator; and in default thereof he shall be liable to any damage that may be sustained thereby, to be recovered by the public administrator, or any party interested.
ART. 46, Sec. 305. He shall make a perfect inventory of all such estate taken into his possession, and administer an account for the same as near as circumstances will permit, according to the law prescribing the duties of administration, subject to the control and direction of the probate court.
ART. 47, Sec. 306. If at any time letters testamentary or of administration be regularly granted on such estate to any other person, he shall, under the order or the probate court, account for, pay and deliver to the executor or administrator thus appointed all the money, property, papers and estate of every kind in his possession.
ART. 48, Sec. 307. It shall be the duty of all civil officers to inform the public administrator of all property and estate known to them, which is liable to loss, injury or waste, and which by law ought to be in the possession of the public administrator.
ART. 49, Sec. 308. The public administrator shall institute all manner of suits and prosecutions that may be necessary to recover the property, debts, papers or other estate of the person deceased.
ART. 50, Sec. 309. If the public administrator shall complain to the probate judge, on oath, that any person has concealed, embezzled or disposed of, or has in his possession any money, goods, property or effects, to the possession of which said administrator is entitled, in his official capacity, the judge may cite such person to appear before the probate court, and may examine him on oath, touching the matter of such complaint.
ART. 51. Sec. 310. If the person so cited refuse to appear and to submit to such an examination, or to answer to such interrogatories as may be put to him touching the matter of such complaint, the court may, by warrant for that purpose, commit him to the county jail, there to remain in close custody until he shall submit to the order of the court; and all such interrogations and answers shall be in writing, and shall be signed by the party examined, and filed in the probate court.
ART. 52, Sec. 311. The probate court may, at any time, order the public administrator to account for and deliver all the money and property of any estate in his hands to the heirs, or to the executors or administrators regularly appointed.
ART. 53, Sec. 312. The public administrator shall render a yearly account to the county auditor, of: 1. A list of the estates which have come under his charge, the condition in which they are at the time of reporting, the disposition which has been made of any during the year. 2. The sums of money which have come into his hands, in each estate, and what disposition has been made of them, and the amount of his fees; which said amount shall be published in at least two journals of the state, one of which shall be in his own county, if there is one published.
Act of April 28, 1851.-R. S. St. 1850, 403.
ART. 54, Sec. 1. The fees of public administrator shall be four per cent. upon the amount of the estates administered by them, which per centage shall be the only compensation allowed for their services.
Act of April 5, 1856.
Sec. 1. The public administrator of the counties of Nevada, Sacramento, Monterey and Amador, shall hereafter be entitled to receive for his services the same fees as are allowed executors and administrators by an act entitled "An Act to regulate the Settlement of the Estates of Deceased Persons," passed May first, one thousand eight hundred and fifty-one.
See Estates, Office, Crimes and Punishments.
1. The public administrator is personally liable upon a contract made in relation to estates upon which he administers, unless the idea of such personal liability be excluded by the contract. Dwinelle v. Henriquez, 1
2. It is not necessary to issue letters of administration to the public administrator. Beckett v. Selover, Oct. T. 1856. His certificate of election is his letters of administration. Id.
3. All the provisions of the law relative to the powers and duties of the public administrator, are special provisions, and must be given their full force. He has official powers and is an officer of the law. Id, Jan. T. 1857. 4. It seems to have been the intention of the statute to dispense, in his case, with the bond and oath required of other administrators in each particular case. Id.
5. He must obtain letters of administration in each particular case. Id.
6. He is entitled to administer upon all estates not otherwise administered. Id.
7. He should at once take possession of the estate of all persons dying without known heirs. Id.
8. His right to take possession of any estate is in virtue of his office, and he must deliver it up to the person showing himself entitled thereto. Id.
9. He cannot be compelled to prove the facts which entitle him to administration in each case where his authority is called in question. Id.
55. Agricultural society, state, incorporated; powers, 61. Premiums, who may compete for; five thousand dollars appropriated annually for four years; expenditures, statement of.
56. Powers, additional, and exhibition of stock; disso
lution of, real estate to pass to state.
57. Meetings, when and where held.
58. Board of directors.
59. Membership, how obtained and when renewed. 60. Premiums.
62. Officers of, compensation.
63. Duties and bond.
64. Crops in mining districts protected.
Act of May 13, 1854, to Incorporate the State Agricultural Society.
ARTICLE 55, Sec. 1. There is hereby established and incorporated a society to be known and designated by the name and style of the California State Agricultural Society, and by that name and style shall have perpetual succession, and shall have power to contract and be contracted with, to sue and be sued, and shall have authority to have and use a common seal, to make, ordain and establish and put in execution such by-laws, ordinances, rules and regulations as shall be necessary for the good government of said society, and the prudent and efficient. management of its affairs; provided, that said by-laws, ordinances, rules and regulations shall not be contrary to any provision of this charter, nor the laws and constitution of this state or of the United States.
ART. 56, Sec. 2. In addition to the powers above enumerated the society shall, by its name aforesaid, have power to purchase and hold any quantity of land not exceeding two sections, and may sell and dispose of the same at pleasure-the said real estate shall be held by said society for the purpose of establishing a model experimental farm or farms, erecting inclosures, buildings and other improvements calculated and designed for the meeting of the society, and for an exhibition of the various breeds of horses, cattle, mules and other stock, and of agricultural, mechanical and domestic manufactures and productions, and for no other purpose. And it is further enacted, that if, from any cause, said society shall ever be dissolved, or fail to meet within the period of two consecutive years, then the real estate held by it, together with all the buildings and appurtenances belonging to said estate, shall be sold as lands are now sold, by execution, and the proceeds deposited in the state treasury, subject to the control of the legislature. ART. 57, Sec. 3. An annual meeting of the members of the society shall be held on the first Tuesday of October annually, at the city of San Francisco, unless otherwise ordered by the society.
ART. 58, Sec. 4. The fiscal, prudential and other concerns of the society shall be under the control and management of a president and seven vice-presidents, a corresponding secretary, recording secretary and treasurer, to be styled a board. of directors, who shall be elected at the annual meeting of the members of said society. The said officers shall hold their office for one year, and until their successors are duly chosen, and shall have power to fill vacancies in said board that may happen during their continuance in office.
[Section 5, executed. St. 1854, 57.]
ART. 59, Sec. 6. The members of this society shall be composed of such persons as shall pay the sum of ten dollars to the treasurer, annually, and such persons shall be members only for the year for which they shall have thus paid the amount aforesaid.
ART. 60, Sec. 7. The members of the society, by a majority of the votes present, shall determine in what amount, and on what object, the funds of the society shall be awarded as premiums, at the exhibition succeeding their meeting, of which notice shall be given in some newspaper in the city of San Francisco, and such other newspapers as the society may direct.
ART. 61, Sec. 8. There is hereby appropiated, from any money in the treasury
not otherwise appropriated, the sum of five thousand dollars, annually, for the space of four years, to be paid in the month of September of each year, to the treasurer of said society, on a requisition on the treasurer of this state, signed by the president and recording secretary of said society, which said sum shall be used only for the purpose of paying premiums, and for no other purpose whatsoever; and it shall be the duty of the recording secretary to make a statement annually of the expenditures of said society, and forward copies of the same to the committee on agriculture, of the senate and assembly; provided, that every person in the state shall be at liberty to compete for and receive any premiums, whether a member of the society or not.
ART. 62, Sec. 9. No compensation shall be allowed to any officers of this society for services, except to the corresponding secretary, for his actual expenses, and to the recording secretary, and the amount allowed to the latter shall, in no case, exceed two hundred dollars per annum; and no part of said compensation shall be taken from the fund appropriated by the state.
ART. 63, Sec. 10. The society may, by a majority of the votes present, at any annual meeting, prescribe the duties of, and require bond and security from, any of its officers.
[Section 11, executed. St. 1854, 58.]
Act of April 25, 1855, to Protect the Owners of Growing Crops, Buildings and other Improvements, in the Mining Districts of this State.
ART. 64, Sec. 1. No person shall, for mining purposes, destroy or injure any growing crops of grain or garden vegetables growing upon the mineral lands of this state, nor undermine or injure any house, building, improvement or fruit trees, standing upon mineral lands and the property of another, except as hereinafter provided.
ART. 65, Sec. 2. Whenever any person, for mining purposes, shall desire to occupy or use any mineral lands of this state, then occupied by such growing crops of grain, garden vegetables, fruit trees, houses, buildings or other improvements, property of another, such person shall first give bond to the owner of the growing crop, building, fruit trees or other improvement, to be approved by a justice of the peace of the township, with two or more sufficient sureties, in a sum to be fixed by three disinterested citizens, householders of the township, one to be selected by the obligor, one by the obligee, and one by a justice of the peace of the township, conditional that the obligor shall pay to the obligee any and all damages which obligee may sustain in consequence of the destruction by the obligor, or those in his employ, of the growing crops, fruit trees, improvements or buildings of the obligee; provided, that the word improvements in this act shall be construed to mean any superstructure on said farm, ranch or garden, and nothing more.
ART. 66, Sec. 3. If any person or persons shall violate the provisions of the first and second sections of this act, he or they shall be deemed guilty of a misdemeanor, and on conviction thereof, before any court of competent jurisdiction, shall be fined in a sum not exceeding two hundred dollars, nor less than fifty dollars, or by imprisonment in the county jail of said county, not exceeding three months, either or both, at the discretion of the court; provided, nothing in this act shall prevent miners from working any mineral lands in the state, after the growing crops on the same are harvested.
See Land, Water Companies, Corporation.
1. THR act of April, 1852, "prescribing the mode of maintaining and defending possessory actions on public lands in this state," gives permission to all persons to work the mines upon public lands, although they may be in the possession of another, for agricultural purposes. Stokes v. Barrett, 5 Cal. 36.
2. The right of the agriculturist to use and enjoy public lands must yield to the right of the miner when gold is discovered in his land. Tartar v. Spring Creek W. & M. Co. 5 Cal. 395; Burdge v. Underwood, Jan. T. 1856. 3. But this does not confer any right upon the miner to dig a ditch to convey water to his mining claim through land thus occupied. Id.
McClintock v. Bryden, 5 Cal. 97; Fitzgerald v. Urton, 5 Cal. 308.