The opinion
Paterson, J., and McFarland, J., dissenting.
We dissent. Sections 2440 and 2442 are a portion of title 6, part 3. This title relates to “public ways,” and is divided into six chapters, which provide respectively for public ways, highways, toll-roads, toll-bridges, and ferries, wharves, chutes, and piers, miscellaneous provisions relating to public ways.
The rules for the construction cf the codes and the provisions thereof are given in sections 4478-4484 of the Political Code. It is there provided, among other rules: “If the provisions of any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject-matter of such title.” In the case at bar, the conflict is not between the provisions of different chapters in the same title, or of different articles in the same chapter, or of different sections in the same chapter or article, but it occurs between provisions of different titles. It seems to us, therefore, that the rule prescribed by section 4481 must prevail in determining which of these sections shall stand as the law in this case. The provision of the code is so clear that no other rule of construction can be applied.
*638 Article 1 deals almost exclusively with the election and. appointment of officers, terms of office, the compensation and manner of removal, while article 6 is devoted largely to the construction and management of public ways. In article 1 nearly every state officer is referred to, and where the term of office and mode of appointment is not given, the fact is stated that those matters have been elsewhere legislated on. In fact, the officers named in section 368 are about the only officers whose appointment and terms of office are regulated without reference to some other provision in the code. The manner in which the election, appointment, term of office, etc., of the various offices were prescribed by the legislature in that article indicates grave consideration and deliberation. While it. is true that “the subject-matter of a title does not depend so much upon the head-note as upon the contents of the title,” still, we think that the appointment of pilot commissioners, among other officers, is more naturally dealt with in that portion of the code which provides specifically and only for the appointment, election, term of service, etc., of public officers of the state than in that portion of the code which is devoted to the construction and maintenance of highways, etc. Title 1 deals with public officers to the exclusion of all other subjects. The object of all rules for the construction of statutes is to ascertain the intention of the lawmaker. The rule prescribed by section 4481 is not only clear and applicable, but is founded in reason. It is intended to ascertain which of the conflicting provisions is the one to which the attention of the legislature was probably called. The appointment of the officers of the state was mere incidental matter in the establishment of the rules for the government of public ways. Any member of the legislature desiring to review, change, or amend the law with respect to the. appointment or term of office of any public officer would naturally look first at that title which relates exclusively to such matters.
*639 We think that the court below erred in its decision that the governor had not the right of appointment.
It is claimed that the governor did not in fact remove the respondent; that the statement in the commission, “vice A. C. Freese, removed,” the demand of the relator to be let into possession of the office, and the refusal of the defendant to comply therewith, do not show the removal, and therefore there was no vacancy to be filled. We think, however, that the appointment of a successor in office when an officer is removable at pleasure is a sufficient act of removal. “The mere appointment of a successor would, per se, be a removal of the prior incumbent.” (Ex parte Hennen, 13 Pet. 261 ; Blake v. United States, 103 U. S. 237 ; Keenan v. Perry, 24 Tex. 253 .)