[Crim. No. 85. In Bank.-September 28, 1895.]

IN THE MATTER OF S. A. AMBROSEWF, ON HABEAS CORPUS.

CRIMINAL LAW-POWER OF LEGISLATURE-DIFFERENT PLACES OF PUNISHMENT FOR SAME OFFENSE.-The legislature has power to provide different places of punishment for the same offense, and may provide that when imprisonment is ordered by the police court of a city it may be suffered in the city prison or jail, although the same offense, when committed in a county outside of the limits of the city, is made punishable by imprisonment in the county jail.

STATUTORY CONSTRUCTION-REPEAL OF PARTICULAR BY GENERAL ACTINTENT OF LEGISLATURE.-The prnciple that a general act is to be construed as not repealing a particular one, like every rule of construction must give way to the plain intent of the legislature expressed in the statute.

APPLICATION for writ of habeas corpus against the Police Court of Oakland, Alameda County. FRED V. WOOD, Judge.

The facts are stated in the opinion of the court.

W. Brassey, for Petitioner.

H. A. Melvin, Prosecuting Attorney, for Respondent.

HENSHAW, J.-Petitioner was convicted in the police court of the city of Oakland of misdemeanor, and by the judgment of that court sentenced to pay a fine of one hundred dollars, and, in default of the payment of the fine, to be imprisoned in the city jail of the city of Oakland, in the proportion of one day's imprisonment for every two dollars of said fine.

The charge against the defendant was for the violation of the act regulating the practice of medicine in the state of California. (Stats. 1877-78, p. 918.) The act provides that a violation of its terms shall constitute a misdemeanor, and that the persons guilty thereof "shall be punished by a fine of not less than fifty dollars, or by imprisonment in the county jail for a period of not less than thirty nor more than three hundred

and sixty-five days, or by both such fine and Imprisonment."

Defendant appealed to the superior court of Alameda county from this judgment, and pending his appeal was admitted to bail. Before the suing out of this writ he had been surrendered into custody, and at the time of its issuance was held in charge by the chief of police of the city of Oakland, and detained in the jail of said city.

Since both his bondsmen had united in the surrender of his body before the issuance of this writ, the question of the right or power of one of the bondsmen so to surrender him is not here involved.

Petitioner contends, however, that the judgment of the police court was void in sentencing him to imprisonment, as an alternative for the nonpayment of his fine, in the city jail, instead of in the county jail.

The police court of the city of Oakland is one created and organized by virtue of the so-called Whitney Act. (Stats. 1885, p. 214; Stats. 1891, p. 292.) By the provisions of this act jurisdiction is conferred upon police courts in all cases of misdemeanor, and when imprisonment is ordered it is to be suffered in the city prison or jail.

The contention of petitioner is that the Whitney Act, in so providing for imprisonment, did not operate, and should not be construed as operating, to modify the provisions of the general statute providing for imprisonment in the county jail. But this position is not tenable. The cases to which we are referred are those cases enunciating the well-settled principle that a general act is to be construed as not repealing a particular one, that is, one directed toward a special object, or a special class of objects, under the maxim, Generalia specialibus non derogant. This, however, like every rule of construction, must give way to the plain intent of the legislature, plainly expressed in the statute, and of this intent in the present instance there can be no doubt. The legislature meant to declare, and did

declare, that the imprisonment for convictions had in the courts created by the Whitney Act should be in the city prisons.

There is left for consideration the single proposition, whether such a provision is violative of the law as providing different punishments for the same crime; in other words, whether there is any vice in the law which provides in effect that if the crime of petit larceny be committed in Alameda county, but without the corporate limits of the city of Oakland, the imprisonment therefor shall be suffered in the county jail, while if the same crime be committed within the corporate limits of the city of Oakland, the punishment therefor shall be by imprisonment in the city jail. We have instanced the case of petit larceny because jurisdiction over that offense is likewise conferred by the Whitney Act upon the police court, while by the statute (Pen. Code, sec. 490) it is made punishable by imprisonment in the county jail.

This point was decided against petitioner's contention in Ex parte Halsted, 89 Cal. 471. There the petitioner had been convicted of the crime of petit larceny in the police court of the city of Los Angeles, which also is controlled by the provisions of the Whitney Act, and the judgment of the court imposed a fine, with the alternative of imprisonment in the city jail. This court said: "There is no conflict between the provisions of the code and those referred to, and we think there can be no doubt of the power of the police court to direct imprisonment in the city jail."

The same question as to the power of the legislature to provide different places of punishment for the same offense arose in construing the act in relation to the House of Correction of the city and county of San Francisco. (Stats. 1877-78, p. 953.) By section 3 of this act it was provided that all persons appearing for sentence in the police judge's court, or the city criminal court, or the municipal criminal court of the city and county of San Francisco, who might be sentenced to

imprisonment in the county jail or in the state prison, may instead thereof be sentenced to imprisoment in the House of Correction in said city and county. By this law, too, it is apparent that one committing a given crime in the city and county of San Francisco would be imprisoned in the House of Correction, while the perpetrator of the same crime in any other part of the state would be sent to a state prison. This law, however, was upheld in Ex parte Flood, 64 Cal. 251.

Elsewhere, also, the reasonableness and validity of such acts have been declared. In People v. Borges, 6 Abb. Pr. 4, the statute prescribed punishment in either the county jails (penitentiaries) or the state prison. It was argued that in those counties which did not possess jails the punishment must be of necessity imprisonment in the state prison, while in those counties possessing such penal institutions the imprisonment might be ordered therein. It was held that this was no objection to the law.

In City of Miltonvale v. Lanoue, 35 Kan. 603, a defendant was convicted under a municipal ordinance which provided for imprisonment in the city jail, and was sentenced to imprisonment therein. Upon appeal he was retried in the district court, found guilty, and sentenced to the county jail. This sentence was upheld, and there was declared to be no clash between the ordinance and the statute and no irregularity in the last judgment.

In Kimbleawecz v. State, 51 Ohio St. 228, a law provided that punishment should be had by imprisonment in county jails or city prisons. A later act declared that where a county had a workhouse, imprisonment should be had in it. This law was held to create no conflict; and in Brenan's case, 10 Q. B. 492, the statute having enacted that, when any convict adjudged to transportation by any British court out of the United Kingdom. was brought to England to be transported, it should be lawful to imprison him in any place of confinement provided under the act, it was held that, if the place in

which the prisoner was imprisoned was not one of the appointed places, the officers concerned might be liable to censure, but the detention was not unlawful, so as to entitle the prisoner to be discharged.

It follows from the foregoing that the writ should be discharged and the prisoner remanded, and it is so ordered. MCFARLAND, J., VAN FLEET, J., TEMPLE, J., BEATTY, C. J., and HARRISON, J., concurred.

[No. 18320. Department Two.-September 28, 1895.]

SOUTHERN PACIFIC RAILROAD COMPANY, APPELLANT, v. HORACE WHITAKER ET AL., RESPOND

ENTS.

PUBLIC LAND-GRANT TO RAILROAD-ACT OF JULY 27, 1866-VESTING OF TITLE-STATUTE OF LIMITATIONS-ADVERSE POSSESSION-PATENT-CONTEST.-Under the act of Congress of July 27, 1866, "granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast, by the southern route, the grant to the railroad company was a grant in praesenti, and operated to vest in the grantee a perfect title to the granted lands when the map of the definite location of the road, opposite the lands, was filed in the office of the commissioner of the general land-office. Thereafter, such lands become subject to the limitation laws of the state where they are situated, and title thereto may be acquired by adverse possession; and the effect of an adverse possession is not interrupted or defeated by the subsequent issuance of a patent therefor, in pursuance of such act, nor by the pendency of a contest in the land department in regard to the title to the land between the adverse possessor and the railroad company. ID. PAYMENT OF TAXES-EJECTMENT.-Under section 325 of the Code of Civil Procedure, as amended in 1878, a defendant in ejectment, who relies on the statute of limitations, makes a complete defense if he shows a continued adverse possession for five years, and a payment of all taxes after 1878, although not for the five years next preceding the commencement of the action. And when the fee has been once acquired by a five years' adverse possession, the failure of the adverse possessor to pay subsequent taxes assessed on the land does not divest, nor in any way affect his title. ID.-FINDINGS.-In an action of ejectment a finding in favor of the defendant on the plea of the statute of limitations need not find the mere probative fact of the payment of taxes by him. If, however, such a finding were necessary, the failure to make it could not be taken advantage of by the plaintiff where the evidence clearly showed that, if made, it must have been in favor of the defendant.