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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.
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.” (Ez parte Hennen, 13 Pet. 261; Blake v. United States, 103 U. S. 237; Keenan v. Perry, 24 Tex. 253.)
[No. 12573. In Bank.-June 21, 1888.]
IN THE MATTER OF THE ESTATE of HORACE BURDICK, DECEASED.
HomesTEAD–CoMMUNITY PRoPERTY-SURVIvors HIP–VALUE.-A homestead under the codes is impressed with the two main qualities of exemption from execution and the right of survivorship. If it is properly selected from the community property, and is of less value than five thousand dollars at the time of selection, it vests on the death of the husband or wife absolutely in the survivor, although at the time of death its value may exceed five thousand dollars.
APPEAL from an order of the Superior Court of Los Angeles County refusing to set apart a homestead to the widow of a deceased person.
The facts are stated in the opinion of the court.
McFARLAND, J.-Kate Burdick is the surviving wife of Horace Burdick, deceased; and during his lifetime
said Horace Burdick executed in due form and had recorded a declaration of homestead upon the land involved herein. This land at the time said declaration was made was community property; and it remained the valid homestead of the husband and wife, who resided on it with their minor children, until the death of said Horace, which occurred May 7, 1887. On June 16, 1887, Frederick Eaton was appointed administrator of the estate of said Horace; and on October 6th, the surviving wife, Kate Burdick, filed her petition in the superior court, asking that the said homestead premises be set apart to her. On the filing of this petition, the court made an order appointing appraisers, and directing that if said homestead premises be returned in the inventory appraised at more than five thousand dollars, the appraisers should ascertain and appraise the value thereof at the time the homestead was selected, on October 7, 1870. The appraisers filed an inventory, in which the present value of the premises was put at forty-five thousand dollars, and reported the value of the same at the time of the selection of the homestead as four thousand dollars. Thereupon the court made an order denying the petition of the widow, and from this order she appeals to this court. It does not appear that the estate was at all in debt; and in its opinion, the court below says that “the facts of the present case doubtless are, that there are no creditors to suffer.” At all events, there are no creditors opposing the petition of appellant. Indeed, it does not appear from the record that any one opposed it. We think the court erred in denying appellant's petition. A homestead, under the codes, is impressed with two main qualities: 1. Exemption from execution; and 2. The right of survivorship, by which, upon the death of husband or wife, it goes to the survivor, and not to the heirs. It is with the latter quality alone that we have to deal with in the case at bar, as the contest here, if with any one, is with heirs, and not creditors. Section 1474 of the Code of Civil Procedure provides that: “If the homestead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community property, . . . . it vests, on the death of the husband or wife, absolutely in the survivor.” And the “homestead” here mentioned is defined in the codes as follows: “The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided.” Assuming, therefore, that a homestead is in every way valid, that is, that it does not cover an unreasonably large amount of land, or is not in any way fraudulent or sham, and has been the bona fide residence of the parties, and has been executed and recorded in the manner provided by law, then it goes, that is, the dwelling-house and land go, absolutely to the survivor, except in the cases where this right of survivorship is modified by some other provision of the codes. And there is no such provision limiting the right of ownership where the value of the homestead at the time of its selection was less than five thousand dollars. It is provided in section 1476 of the Code of Civil Procedure, that if the value at the time of the selection of the homestead “exceeded five thousand dollars,” or if it had been appraised as provided in the Civil Code, and its appraised value exceeded that sum (which was not the case here), then it may be divided or sold, and the excess over five thousand dollars distributed. But there is no such provision as to a homestead of less value than five thousand dollars at the time of its selection. In the latter case, it goes absolutely to the survivor, although at the time of the death of the husband its value may exceed five thou
on by respondents were made under statutory provisions materially different from those now in force. The judgment and order of the court below are reversed, with instructions to set aside the homestead to petitioner as prayed for in her petition.
McKINSTRY, J., SHARPSTEIN, J., and PATERson, J., concurred.
SEARLs, C. J., dissented.
THORNTon, J., dissenting.—I dissent. In the lifetime of Horace Burdick, deceased, and during his intermarriage with the petitioner, Kate Burdick, he selected as a homestead the parcel of land involved herein. A proper declaration of homestead as to the parcel of land was duly made and filed by the decedent on the seventh day of October, 1870. At the time of making and filing this declaration, the decedent, with his family, consisting of his wife, above mentioned, and his minor children, resided on the premises. The parcel of land so selected as a homestead was at the time of such selection community property.
The decedent died on the 7th of May, 1887, and on the sixteenth day of June, in the same year, letters of administration on the estate of decedent were issued to Frederick Eaton.
On the 6th of October, 1887, Kate Burdick, widow of deceased, filed in the superior court a petition asking that the premises above mentioned be set apart to her.
On the filing of this petition, the court made an order appointing appraisers of the estate of decedent, and by said order directed that if the homestead premises above mentioned be returned in the inventory appraised at more than five thousand dollars, the appraisers, before they make their return, ascertain and appraise the value of said homestead, at the time it was selected, on the 7th of October, 1870, etc.