article II provides that "Each county officer shall have the powers and perform the duties now or hereafter prescribed by general law as to such officer, except as otherwise provided by this charter; and shall have and perform such other powers and duties as are or shall be prescribed by this charter." As an attempted direct repeal of any sections of the original charter the amendment is fatally defective, because it is impossible to determine what sections of the charter are intended to be repealed. But the amendment is effective in that it adds to the charter a new section, and by so doing impliedly repeals those provisions contained in the original charter which relate to the same subject matter as the new section and are in conflict therewith. The county officers appointed in January, 1915, will continue to hold their offices until the time regularly appointed by general law for the election of county officers; at which time their successors will be elected the same as if the present officers had been elected under the general law. The charter amendment does not state what county officers shall exist in San Bernardino County. Those officers are designated by sections 1 and 2 of article II, and there is no inconsistency between the amendment and these two sections which would require us to hold that the latter are repealed by implication. The office of coroner is a separate office from that of sheriff, with separate duties and powers as provided by law. The sheriff by virtue of his appointment as sheriff becomes coroner of the county; he is "ex officio coroner." When performing the duties of a coroner he is in contemplation of law the coroner of the county as distinctly and completely as any other duly appointed or elected person would be when lawfully performing those duties. Upon the facts of this case we think that there is no sound reason for holding that the office of coroner of San Bernardino County is at this time vacant.

Counsel for plaintiff insist that the amendment, in providing that all county officers other than supervisors shall be elected as is now or may be hereafter provided by general law, and that the powers and duties of such officers shall be such as are now or may be hereafter provided for by general law, intended to refer only to those officers provided for by general law; and that thereby the amendment eliminated some county officers provided for by the charter. Article IV of the charter provides for a county purchasing agent and

article VI for a county highway commissioner; defining their powers and duties. It is contended that since the general law does not provide any powers or duties for either of these officers, the offices no longer exist. From this it is argued that the provisions of the charter as to consolidation of certain county officers are no longer effective because such consolidation affects directly and materially the powers and duties of the officer. But we think that the consequences thus contended for do not follow. As we have above suggested, the powers and duties pertaining to the office of coroner are not affected by providing that the person appointed as sheriff shall also be the coroner. Neither do we see any reason for holding here that the offices of county purchasing agent and county highway commissioner are abolished by this amendment. The general law of the state provides for certain county officers, among whom are a sheriff and a coroner, and "such other officers as may be provided by law." (Pol. Code, sec. 4013.) The charter of San Bernardino county is a law. If by general law the legislature shall hereafter prescribe the duties of a county purchasing agent or of a county highway commissioner, such designation of the duties of the office will (under the above quoted amendment of 1915) supersede the description of those duties as now contained in the charter. In the meantime the designation of those duties as contained in the charter is not in conflict with any general law, since the general law has not spoken upon the subject. For these reasons we do not agree with counsel for plaintiff in their contention that the charter is no longer of any effect either as to what county offices exist or as to how they shall be filled or as to what shall be their powers and duties.

Our attention is directed to the fact that in sections 4017 and 4018 of the Political Code it has been enacted that boards of supervisors of counties may by ordinance consolidate the duties of certain officers named in section 4017, and that the consolidation of the duties of sheriff and coroner is not included therein. So it is urged that the effect of the provision of the charter that the sheriff shall be ex-officio coroner is to impose upon him duties not imposed upon him by general law; and that under the very terms of the 1915 amendment the powers and duties of sheriff are limited to those provided by general law. Some light may be thrown

upon this matter by referring to section 72 of article XI of the state constitution, which authorizes the framing of charters by counties for their own government. It is therein provided (subd. 4) that county charters shall provide "for the powers and duties of boards of supervisors and all other county officers, for their removal and for the consolidation and segregation of county offices, and for the manner of filling all vacancies occurring therein; provided, that the provisions of such charters relating to the powers and duties of boards of supervisors and all other county officers shall be subject to and controlled by general laws." Thus it is seen that when the 1915 amendment of the San Bernardino County charter states that the powers and duties of the county officers shall be such as are or may be provided by general law, it merely repeats in substantially the same words the terms of the constitution on the same subject. Therefore, it is the constitution rather than the charter which constitutes the effective declaration of law upon the subject; a declaration which in the same paragraph above quoted, of the constitution, authorizes county charters to provide for the consolidation of county offices. Having in view these provisions of the constitution, we think that even under the charter amendment there is no valid ground for holding that the charter provisions with respect to the consolidation of county offices are now superseded by the terms of section 4017 of the Political Code upon the same subject. The judgment is affirmed.

James, J., and Shaw, J., concurred.

[Civ. No. 1929. First Appellate District.-September 13, 1916.] CENTRAL PACIFIC RAILROAD COMPANY (a Corporation), Appellant, v. EUGENE RILEY (now Deceased, and for Whom has Been Substituted Daniel E. Riley, as Administrator, etc.), Respondent.

DISMISSAL OF ACTION-FAILURE TO PROSECUTE WITH DUE DILIGENCESTIPULATION DROPPING CASE FROM CALENDAR-ACTION PROPERLY DISMISSED. An action at issue for over seventeen years and not in the meantime brought to trial, is properly dismissed under the provisions of section 583 of the Code of Civil Procedure for fail ure to prosecute with due diligence, although the parties sixteen years previous to the service of the notice of the motion to dismiss entered into a stipulation that the action be dropped from the calendar to be reset upon notice.

APPEAL from an order of the Superior Court of Alameda County dismissing an action for lack of prosecution. T. W. Harris, Judge.

The facts are stated in the opinion of the court.

Reddy, Campbell & Metson, Tom M. Bradley, and Harry E. Leach, for Appellant.

Powell & Dow, for Respondent.

THE COURT.-This is an appeal from an order dismissing an action for lack of prosecution.

The action was commenced in January, 1896, and in March, 1897, the answer of the defendant was filed. After the cause had thus been at issue for over seventeen years and not having been in the meantime brought to trial, the same on motion of the defendant was dismissed for failure to prosecute the same with due diligence.

Section 583 of the Code of Civil Procedure provides that: "Any action heretofore or hereafter commenced shall be dismissed. . . on motion of the defendant, after due notice to plaintiff or by the court on its own motion, unless such action is brought to trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended,”—and the

making of an order of dismissal, after the expiration of the five-year period, is mandatory upon the court (Romero v. Snyder, 167 Cal. 216, [138 Pac. 1002]).

The defendant asserts that a stipulation entered into by the parties sixteen years before the notice of motion to dismiss was served relieved it of the necessity of bringing the action to trial within the five years. The stipulation is as follows:

"It is hereby stipulated that the trial of the above entitled action be, and the same is hereby continued, to be dropped from the calendar, to be reset on notice, subject to the discretion of the court, and a trial by jury is hereby waived." Dated April 13, A. D. 1898.

Under the terms of the stipulation the case was dropped from the calendar, to be reset upon notice, and it was in exactly the same position it occupied prior to the time when it was set, and subject therefore to the provisions of section 583 of the Code of Civil Procedure, above set out. There is nothing in the stipulation which can fairly be construed as taking the case out of the operation of the terms of that section. After the case was dropped from the calendar according to the stipulation, it was still the duty of the plaintiff to see that the case was brought to trial. (Kubli v. Hawkett, 89 Cal. 638, [27 Pac. 67]; Mowry v. Weisenborn, 137 Cal. 110, [69 Pac. 971].),

The order is affirmed.