17 



This action is brought for a writ of mandate compelling the board of snpen 

 to make the selection and appointment as required of them by the act. 



A demurrer has been interposed t<» the complaint, and in support thereof it is 

 contended : 



First. That the act of nth of March, 1881, of which the act of 19th of March is 

 amendatory, was repealed by an act approved 13th of March. 1883, which pr<> 

 for the appointment by the governor of a state hoard of horticulture, and that in 

 consequence of the act of 1889 being amendatory of a repealed statute it is nugatory. 



The act of l^xH does not. ,n express terms, repeal the act of 18x1. nor is that act 

 elsewhere expressly repealed. It is a well settled legal principle that repeals by impli- 

 cation are not favored. A subsequent act does not. by implication, repeal a prior 

 statute unless the subsequent one entirely covers the provisions of the first and -<» 

 completely that every portion of the first is provided for by the second. There must 

 appear an intent to entirely substitute one for the other. 



ssiys Bishop in his work on statutory crimes, section 15-1: " We have seen that every 

 legislative act in affirmative words is to be regarded, prima facie, as an addition to 

 the mass of the law; for such on its face it purports to be. Vet. when it is incon- 

 sistent with the former law, it must, as the last expression of the legislative will, 

 prevail. But repeals by implication, thus explained, are not favored. And a legis- 

 lative intent to repe;il an existing statute is not presumed. If two act-, seeming to 

 he repugnant, can be reconciled by any fair construction, they must he. when no 

 repeal will he held to take place." 



The same principle is laid down by.Judge Field in the case of Pierreponi v. Crouch 

 (lOCal.,316). 



There are numerous other authorities to the same effect. 



Is there any apparent intent to substitute one of these acts for the other, or sueh 

 repugnance as would destroy the tiist '. Let us see. The first provides for a county 

 hoard of horticulture: the second' lor a state board. The first prescribed duties to 

 he performed by county boards of supervisors; the second prescribed duties to be 

 discharged by the governor. The first provides for a board of three commissi 

 with local jurisdiction; the second for a hoard of nine commissioners with a juris- 

 diction coextensive with flu- State. The first authorizes boards created by its 

 authority to divide-counties into district.-: the second creates districts compose 

 several counties. The.first requires duties to he performed by county hoards which 

 are not required by the second of the state board. For instance: The first provides 

 for proceedings against persons who. after notice, fail or refuse to treat infested 

 tree-- as directed by the board, and a destruction of' trees by such hoard when 

 directed by a court. No such proceedings and destruction are provided for l>y the 

 second. There are other differences between the two acts which might he pointed 

 out. hut these are sufficient to show that there is no such similarity in the powers 

 of the hoards created by them as would, necessarily cause a conflict between these 

 boards, or would justify a court, in holding that one act repeals the other. I must. 



therefore, hold that the act of 18S1 was not repealed by the act of l^ s :>. and was 

 in full force when, tin? amendatory act of 1889 was passed. The act o\ 1883 is an 

 addition to the then existing legislation, and not a substitute for tin- act of 1881. 



Second. It was contended that acts of the legislature which provided that a duty 

 imposed shall be.performed within a certain time are directory and not m indaf 

 I can not assent to that proposition. Where a court or board i- directe 1 by law to 

 perform an ait in a given time, the law. unless it declares the net i lay not be done 

 after the expiration of the time, is so far directory as that the act is valid, though done 

 after the time fixed, but is not directory in the sen3e that the duty or act directed 

 may be entirely disregarded or omitted. The time is given that the hoard may have 

 ample opportunity to act intelligently and with good judgmeut, but not to enable 

 t he hoard or officer of whom t he duty is required to disregard it entirely. I ha\ e no 

 doubt hut that the board of supervisors is required by the law in questiou to appoint 

 12125— No. 33 L> 



