In Napa State Hospital v. Flaherty, 134 Cal. 315, 317, 66 P. 322, 323, the court stated the rule as follows: `It is a rule of almost universal application that where a right is created solely by a statute, and is dependent upon the statute alone, and such right is still inchoate, and not reduced to possession or perfected by final judgment, the repeal of the statute destroys the remedy, unless the repealing statute contains a saving clause.' This rule has been consistently and continuously adhered to since said date. (Citing cases.)Summary of this case from Roberson v. Roberson
S.F. No. 2190.
October 11, 1901.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Seawell, Judge.
The facts are stated in the opinion.
Tirey L. Ford, Attorney-General, and George L. Hughes, for Appellant.
Gunnison, Booth Bartnett, for Respondent.
The court below made an order sustaining defendant's demurrer to the amended complaint, and this appeal is from the judgment, for the purpose of reviewing the order.
The complaint alleges that one John L. Flaherty, the son of defendant, was duly committed to the state insane asylum at Napa by order of the superior court, where he was regularly detained, supported, and maintained in pursuance of said order; that he had not, at the date of said commitment, and has not since, had any wife, child, or children of sufficient pecuniary ability to support him at said asylum, and that defendant is of sufficient ability, and is liable, under section 8 of the Insanity Law of 1889 (Stats. 1889, p. 330), which reads as follows: "If indigent insane persons have kindred of degree of husband, wife, children, other than minors, father, or mother, living within this state, of sufficient pecuniary ability, who are otherwise liable, such kindred, in the order above named, shall support such indigent insane person by paying to the board of directors or board of trustees, as the case may be, of the asylum to which such insane person has been committed or removed, the sum per month fixed on by them, quarterly, in advance, for the maintenance and support of such indigent insane person, and such kindred, in the order above named, shall also pay for the clothing as the resident physician of such asylum shall from time to time furnish to such indigent insane person."
The demurrer was upon the grounds (among others) that the complaint does not state facts sufficient to constitute a cause of action, and that the plaintiff has not the legal capacity to sue. As we have concluded that the demurrer was properly sustained upon the latter ground, it will not be necessary to consider whether or not the complaint states facts sufficient to authorize the proper party to maintain the suit in the proper court.
Section 9 of the law of 1889 is as follows: "For a failure to perform the duty devolving upon such kindred under the provisions of this act, an action may be brought by the board of trustees or board or directors, as the case may be, of the asylum to which such insane person has been committed or removed, in their own names, against said kindred, in the order above named. Such action may be prosecuted in the superior court of any county in this state in which said kindred, or either of them, may reside, and in which the action shall be brought, which action shall be conducted throughout, and the judgment therein enforced, as in a civil action for the recovery of a debt."
The right to maintain any action against the father for the support of an adult child, if any such right exists, is purely a creation of the statute. No such right existed at common law. If it be conceded that such right exists by virtue of section 8, herein quoted, the remedy is given under section 9, which authorizes the board of directors or board of trustees to bring the action in their own names.
There is no question but that this would be so, if the law of 1889 were still in force in all its parts, and if it were the only insanity law found in the statutes. There is no claim made that the law of 1889 authorized the treasurer of the asylum to bring or maintain the action. The legislature, however, by an act approved March 31, 1897 (Stats. 1897, p. 311), known as the Insanity Law, undertook to provide for the government of the several asylums for the insane of the state, the admission of patients thereto, the names of the officers and assistants, and many other matters of detail. This latter act is divided into several articles, and each article into many sections, taking up some twenty-two pages of the statutes. It expressly repealed all acts and parts of acts in conflict with its own provisions. It certainly was an attempt at a revision of the laws relating to the government and management of asylums for the insane. Counsel for appellant say, in their opening brief, "When the Napa state hospital came into existence by the laws of 1897, the Napa state asylum no longer continued to exist. The ends for which it had been created no longer existed, and the laws by which it had been created were expressly repealed by the law of 1897. If the act creating the Napa state asylum is repealed, that institution no longer exists, and it necessarily follows, as a legal sequence, that on the enactment of the Insanity Law of 1897, the board of trustees of the Napa state asylum, as such, went out of existence also, and by no legal fiction can it be assumed that any authority which they once possessed could survive them."
If we were to concede, as claimed by appellant's counsel in their opening brief, that the entire act of 1889 was repealed by the act of 1897 — and this court has very strongly so intimated in People v. King, 127 Cal. 574 — then the right to recover of defendant is lost. It is a rule of almost universal application that, where a right is created solely by a statute, and is dependent upon the statute alone, and such right is still inchoate, and not reduced to possession, or perfected by final judgment, the repeal of the statute destroys the remedy, unless the repealing statute contains a saving clause. (Sutherland on Statutory Construction, secs. 162, 163; Endlich on the Interpretation of Statutes, secs. 478, and cases in notes.)
It was said by Tindal, C.J., in Kay v. Goodwin, 6 Bing. 576, 4 Moore P. 341, that the effect of repealing a statute is "to obliterate it as completely from the records of the Parliament as if it had never passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law."
This language was quoted with approval by this court in Spears v. County of Modoc, 101 Cal. 305, in which it was held that the repeal of an ordinance, pending an appeal from a judgment imposing a fine thereunder, had the effect to remit the penalty and destroy the judgment.
Counsel for appellant, in their reply brief, in order to avoid the result of what has been said, contend that the right which accrued to the trustees of the asylum under the act of 1889 has passed to and is now possessed by the Napa state hospital, under the law of 1897. They say: "A careful examination of all the statutes on the subject will demonstrate that, as we think, the Insanity Law of 1897 is not as comprehensive as is supposed. It does not contain all the law on the subject, and is, when carefully examined, seen to be, not a complete scheme containing all the law on the subject of the insane, but it is in fact intended to provide simply for the management of the institutions."
If it be conceded that the act of 1897 did not repeal the right that had accrued under the act of 1889, it must follow that it did not repeal the method of enforcing the right. The liability is claimed to exist under section 8 of the law of 1889. The method of enforcing the right is given by section 9. There is no reason why section 8 should remain unrepealed and section 9 be considered as repealed.
The board of trustees of the hospital is not abolished by the act of 1897. The act denominates the board as "trustees or managers," and says "such trustees or managers shall hereafter be termed managers." And it is provided that the act shall not affect the "salary of any officer elected by existing boards of trustees or directors of asylums of this state during their present term of office."
The right to maintain this action is claimed to exist under section 13 of article II of the act of 1897, which provides that the treasurer may, with the consent of the attorney-general, bring an action, in the name of the hospital, to recover, for the use thereof — 1. The amount due upon any note or bond in his hands, belonging to the hospital; 2. The amount charged and due, according to the by-laws of the hospital, for the support of any patient therein, or for the actual disbursements made in his behalf for clothing and traveling expenses; 3. Upon any cause of action accruing to the hospital.
Neither of the above subdivisions authorizes the treasurer to bring this action as to the amount claimed to have accrued under the act of 1889.
It is not due upon any note or bond. It is not due, according to the by-laws of the hospital, for that part of the amount claimed under the act of 1889. The cause of action, under the last-named act, did not accrue to the hospital, but if it accrued at all, it accrued to the board of trustees or directors of the Napa state asylum for the insane.
If the right to recover the amount due under the act of 1889 passed to the Napa state hospital under the act of 1897, the right to recover in the name of the trustees also passed to the said hospital. The treasurer can maintain no action on behalf of such hospital, except under express authority of the statute. If it be claimed that as to the portion of the claim alleged to have accrued after March 31, 1897, it accrued to the Napa state hospital, and that the treasurer has under said last-named act the power to recover the amount, still he cannot maintain this action, for the superior court has no jurisdiction. The amount, according to the amended complaint, that accrued after March 31, 1897, is $192.50. The superior court has no jurisdiction in such case. (Const., art. VI, sec. 5.)
The judgment should be affirmed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
Garoutte, J., Harrison, J., Van Dyke, J.