The opinion
Boss, J., dissenting:
I think the writ should be denied. When this clause- was *600 last considered here it was agreed by all of the Judges who expressed an opinion on the point, that the contract entered into between the Board of Supervisors of the City and County of San Francisco and the Gas Company, in May, 1879, was invalid, because expressly prohibited by the Act of the Legislature approved April 3, 1876. At that time the subsequent Act of February 25, 1878, was not called to the attention of the Court, and consequently was not considered. It is now urged on behalf of the company that this latter Act repealed by implication the Act of April 3, 1876, and that therefore the contract in question was not prohibited by law, but was one the Board of Supervisors was empowered to make.
An Act of April 3,1876, is entitled “An Act to confer additional powers upon the Board of Supervisors of the City and County of San Francisco, and upon the Auditor and Treasurer thereof,” and is in these words: “ If at the beginning of any month any money remains unexpended in any of the funds set apart for maintaining the municipal government of the City and County of San Francisco, and which might lawfully have been expended the preceding month, such unexpended sum or sums may be carried forward and expended by order of the Board of Supervisors in any succeeding month; provided, that said Board of Supervisors shall not hereafter make any contract for any purpose binding said city for a longer period than two years.”
The enacting clause of this statute, as will readily be seen, relates entirely to the disposition of certain unexpended funds of the city. It is this enacting clause that it is said was impliedly repealed by the Act of February 25, 1878. And the argument is that such repeal of the enacting clause necessarily repealed the proviso. That depends on the nature of the proviso. Undoubtedly the office of a proviso generally is, as was said by the Supreme Court of the United States, in Minis v. The United States, 15 Pet. 445 , “ either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the Legislature to be brought within its purview.” Yet, that a proviso may contain provisions broader than the enacting clause, and lay down a general rule of a permanent nature *601 applicable to all cases, is impliedly admitted by the Court in the same case. ( 15 Pet. 445 .) In construing a statute, as in construing a contract, deed, or other instrument, the paramount object is to ascertain—from the language employed— the intention of the party making it. What, then, did the Legislature intend when it said, in the proviso to the Act of April 3, 1876, that “said Board of Supervisors shall not hereafter make any contract for any purpose binding said city for a longer period than two years ” ?
This language, it seems to me, is very explicit, and prohibits the making of any contract, for any purpose, binding the city for a longer period than two years. In no respect can it be satisfied by confining its operation to the unexpended balance of the city funds referred to in the enacting clause. To do this would be to restrict, where the obvious meaning of the language employed admits of no restriction. It was the unmistakable intention of the Legislature, I think, to deprive the. Board of Supervisors of the power of entering into any contract which, by its terms, purported to bind the city for any longer period than that named in the proviso. Inasmuch, therefore, as this prohibition was not confined to the subject-matter of the enacting clause, it follows necessarily that the implied repeal of the latter could not have the effect of repealing the prohibition—more especially in view of the rule that repeals by implication are not favored. (Sedgwick on the Construction of Stat. and Const. Law, 2d edition, pages 105,106.)
The objection made to the Act of 1876, on the ground that the subject of the proviso is not stated in the title of the Act, can not be sustained for the reason that the Act was passed prior to the adoption of the present Constitution, and it is settled by a long line of decisions in this State that the provision in the old Constitution requiring the subject of the Act to be expressed in its title was merely directory. With respect to laws passed under the old Constitution, we are bound by those decisions, although it is otherwise with respect to those passed under the new.
The Board of Supervisors having had no power to make the contract in question, it had no power to allow any claim based upon it. As I read the record in this case, the claim of *602 the petitioner is based on the contract, and its allowance was obtained by virtue of the contract, and not otherwise. As the Board lacked the power in the first instance, I am unable to see how the refusal of the Auditor to audit the claim, and the subsequent appeal from such refusal back to the Board of Supervisors, could confer it. The illegality of the allowance in the first place came from the fact that it was based on a contract expressly prohibited by statute. The same consideration, in my opinion, rendered invalid the allowance made on the appeal from the Auditor’s refusal to audit the claim. I do not understand that mandamus can ever be resorted to, to compel the auditor to enter in his book a claim based on a contract prohibited by statute.
I will add that I entertain no doubt that the Board has the power to pass upon the claims of the petitioner for gas furnished the city, and to allow such sums therefor as may be reasonable and just; and that when so allowed payment of such amounts can be compelled by petitioner.
Thornton, J., dissented.
(Morrison, O. J., being disqualified, took no part in the decision of this case.)