County of Trinity v. County of Mendocino

By the acts of 1851 and 1853 the fortieth parallel of north latitude was made the dividing line between the counties of Trinity, Humboldt, and Mendocino, and constituted the north line of Mendocino, and the south line of Trinity and Humboldt. The line was not well defined or marked on the ground, and the legislature, by the act of March 30, 1872 (Stats. 1871-2, p. 766), provided for a commission of survey to be chosen by the boards of supervisors of the counties concerned, and authorized such commission to appoint a surveyor, who was directed thereupon to “accurately run, thoroughly mark and place monuments on the line between” the respective counties. The commission appointed and employed one W. H. Fauntleroy, a surveyor, to survey and mark the line. He proceeded to make the survey and place the monuments as required by the act, completing and filing same in the respective counties on October 30, 1872. Section 10 of the act provided that “The lines run out, marked and defined as required by this act are hereby declared to be the true boundary lines of the counties named herein.”

Doubts appear to have arisen in regard to the accuracy of Fauntleroy’s survey and location, on the ground, of the

This action was begun by Trinity County to enjoin the county of Mendocino from further claiming this territory, or from exercising, or attempting to exercise, sovereignty over it. Findings and judgment were given in the lower court in favor of Trinity County. The defendant appeals.

The court below, in its findings, declared that the line established by Rice is, in fact, on the fortieth parallel of north latitude, and that the line established by Fauntleroy is, in fact, nearly two miles south of said parallel. The judgment was given for the plaintiff upon the theory that the Fauntleroy survey established the situation of the county boundary] regardless of the fact that it did not correctly locate the position of the said north parallel.

By virtue of the special act of March 22, 1872, which took effect at its passage, all of title one, part four, of the Political Code, including sections 3969 to 3972, took effect on May 1, 1872. These sections provide that all common boundaries of counties not adequately marked by natural objects or legal surveys were to be definitely established, either by a joint survey of the respective county surveyors, or by the surveyor-general. If these sections had been the

Even if the act of March 30, 1872, was inconsistent with section 3969 in this respect, it would not he the code, but the special act which would prevail. This is evident from the dates of the respective acts and the rule of law on the subject. The code was passed March 12, 1872, and is to be considered as if passed December 4, 1871. (Pol. Code, sec. 4478.) The act putting these parts of it in force on May 1, was enacted on March 22, 1872. The special act of March 30, 1872, being the later enactment, would prevail over the code. Where two inconsistent laws are enacted at the same session of the legislature the one last adopted prevails. (Ex parte Sohncke, 148 Cal. 262 , [ 113 Am. St. Rep. 236 , 82 Pac. 956 ] ; Estate of Wixom, 35 Cal. 320 ; People v. Phoenix, 6 Cal. 93 ; People v. Dobbins, 73 Cal. 259 , [ 14 Pac. 860 ] ; Smith v. McDermott, 93 Cal. 424 , [ 29 Pac. 34 ] ; Davis v. Whidden, 117 Cal. 622 , [ 49 Pac. 766 ] ; Mariposa Co. v. Madera Co., 142 Cal. 55 , [ 75 Pac. 572 ] ; State v. Halliday, 63 Ohio St. 165 , [ 57 N. E. 1097 ] ; 26 Am. & Eng. Ency. of Law, 736.) Furthermore, as it is a special ,1aw relating to one of a particular class of subjects, according to the rule of statutory construction in such cases, it would not be repealed by a gen

It is claimed by appellant that section 10 of the act of March 30, 1872, declaring that the line to be run by the surveyor selected in accordance with its provisions, when it was so run, marked and defined, should be .the true boundary line of the counties, is unconstitutional. It is said that the act delegates to the surveyor the power to fix the limits of the territory of the respective counties, that this is a legislative act which cannot be delegated by the legislature to a ministerial or executive officer, such as a surveyor, and, hence, that it is contrary to the provision of section one of article three of the constitution of 1849 to the effect that the powers of one department of the state cannot be conferred upon another department. We cannot agree to this view. The legislature had established the boundary of the respective counties and had declared that the fortieth parallel of north latitude is the line which separates them. That line was not marked on the ground so that its position could be known to the citizens and parties interested, nor was its precise location ascertained. It was deemed necessary that it should be so located and marked. The legislature could not, itself, go into the field and survey and mark the line. Nor is the process of surveying and marking a line a legislative function. It is purely ministerial in character. (Holley v. Orange Co., 106 Cal. 424 , [ 39 Pac. 790 ].) It was, therefore, not only proper, but necessary, that the legislature should provide for the employment of a surveyor to do the work.

It is conceded that if, after the survey was made, the legislature had enacted a law providing that the line so marked should be the boundary line between the counties, it would thereupon constitute such boundary, no matter how much it deviated from the true line or position of the fortieth parallel, and that even if such subsequent act was passed in ignorance of the mistake or error in the survey, it would make no difference in this respect. But it is contended that it was not

The act provided that the surveyor, when employed, should “accurately run” the line of the fortieth parallel. It is contended that the effect of this language is that if he ran it inaccurately his survey would be void; that the words quoted were a limitation upon his power, such that he could make no legal survey unless it was absolutely correct. We deem the language quoted directory only. This is made sufficiently clear by section 10 above quoted. That section manifestly was made in view of the contingency that the survey might not be absolutely correct, and its purpose and effect was that, whether correct or not, the line surveyed and marked should thereupon be the true line. The construction contended for would leave the county lines always subject to change and uncertainty. For if the line must be absolutely accurate in order to be valid, if the true line of that parallel and not any particular surveyed,line thereof, is to be the true county line, it would be subject to relocation and change whenever new discoveries, more accurate instruments, or more careful surveys, should demonstrate that the previously surveyed line was incorrectly located' on the ground. If the true line of the parallel, and no other, was to be the lawful line, the surveying and marking of any line would accomplish nothing. It would, indeed, indicate the place where the particular surveyor ascertained and believed the position of the true line to be, but such location would be merely tentative, and subject always, whenever the location of the line was in issue, to dispute upon the claim that it was not the true line, and to proof which might show it to be false. And there would be no remedy' except by legislative act. The matter of establishing a county boundary is for the legislature. If it has declared that the true line of the parallel is the line, the courts cannot declare any other line to be the boundary, in the absence of legislative authority to so declare. The court

It is said that under this theory of the law, the surveyor might arbitrarily locate the line ten, fifteen, or even fifty miles from the true line. There is no charge that the surveyor fraudulently located the line. What the effect would be if he did act fraudulently we need not decide. But so far as mere inaccuracy is concerned, it seems clear that it would not affect the question. In any event, the location of the county lines is a political question, to be settled by the legislative power of the state, and subject to change from time to time as the legislative power may direct. If the line as fixed in accordance with its directions, is inaccurately located by the person whom it has directed to make the survey and place the marks, the correction of the error lies with the legislature and not with the courts, unless it has provided that the courts shall determine the true location, which it has not done.

The finding of. the court is that the common boundary line between Mendocino and Trinity counties was, and ever since the Fauntleroy survey has been, adequately marked by monuments, lines, and surveys lawfully made. Such being the fact, there was no necessity or authority for a yesurvey by the surveyor-general, under section 3969 of the Political Code, unless it appeared that the monuments of the Fauntleroy survey had been displaced or destroyed so that this line was no longer adequately marked. In that event the surveyor-general could be called upon to resurvey and mark the line under the provisions of the Political Code above cited. But if he should be called upon to make such survey it would be the Fauntleroy line which he must survey and mark, and not the actual position of the fortieth parallel of north latitude.

It is entirely immaterial whether there was, or was not, a dispute concerning the location of the line when the act

The sections of the Political Code declaring'that the fortieth parallel of north latitude should be the common boundary did not, when they took effect on May 1st, work any change, or in any way affect the act of March 30, 1872. The same parallel had been previously fixed by law as the boundary, :and the act is to be construed merely as a re-enactment and codification of the previous law on the subject, and not as a new enactment, and therefore it does not operate as a repeal hy implication of the act of March 30, 1872, declaring that the Pauntleroy line when fixed should be the true line. (Swem v. Monroe, 148 Cal. 741 , [ 83 Pac. 1074 ].) The survey of Fauntleroy had fixed, for all legal purposes, the position of the county line, and section 10 of the act, in effect, declared •that this line was for that purpose, in contemplation of law, the fortieth parallel of north latitude.

The judgment is affirmed.

Sloss, J., McFarland, J., Angellotti, J., Lorigan, J., and Henshaw J., concurred.