Hopper was improperly joined as a party plaintiff, and appellant contends that the court erred in overruling the demurrer. But it does not appear on the face of the complaint that Hopper was improperly joined. Nothing of Hopper's conveyance to his daughter appears in the complaint. Therefore the demurrer was properly overruled, and since such misjoinder was not pleaded in the answer it was waived.

A more serious objection, however, founded upon the conveyance of Hopper to his daughter, is that the finding of the court that all the plaintiffs are owners of the right of way is not justified by the evidence, for the alleged reason that the express grant of the right of way and the dominant estate by Hopper to his daughter in trust for the use of herself and children during her life, and remainder in fee to her children should they or any of them survive her, exhausted the entire estate, leaving no interest to the grantor (Hopper) in the land or right of way, which would entitle him to maintain an action for obstruction of the way. The question presented is whether the reversion to Hopper, if such it may be called, gives him such an interest in the way in question as entitles him to maintain this action. If not, the finding of the court below that he had such an interest is not justified by the evidence.

If the alleged reversion depended only upon a contingency that in its nature must happen, there would be no question that he would be entitled to an action for any wrongful act injurious thereto. (2 Washburn on Real Property, 5th ed., top p. 804; Addison on Torts, 6th ed., *409, *434; Gould v. Stafford, 91 Cal. 146.) But it is manifest that the contingency in this case may never happen, and probably never will happen; namely, that Mary E. Roberts will survive all her children. Therefore, Hopper has no substantial tate in the easement in question which may be properly called a reversion. To him pertains only a bare posibility of reverter. He has no present estate in the property conveyed by him to his daughter for life with

es

remainder in fee to her children, which entitles him to maintain an action for any injury to that property. In Keene's Appeal, 60 Pa. St. 504, it was held that "a bare possibility," under a will dependent upon the death of the first taker without issue, is not such an interest as will authorize a citation to the executor to account; and that the interest for such purpose must be such as will certainly fall into possession some time. (See, also, 1 Washburn on Real Property, 5th ed., 65, 95; 2 Washburn on Real Property, 802.) It follows, I think, that the finding that all the "plaintiffs are and were at the time that the said way was obstructed . . . . the owners of said private way," is not justified by the evidence; though all, except Hopper, were such owners in common with defendant. But since no damage was found or awarded, and the plaintiffs, other than Hopper, appear to be entitled to all the relief granted by the decree, a new trial will not be necessary; and since the name of Hopper is not mentioned in the findings or judgment, and only in the title of the complaint, the error in the finding may be corrected by striking Hopper's name from the title of the complaint, the misjoinder having been waived by failure of defendant to plead it. (De Celis v. Porter, 65 Cal. 3.) With this amendment of the complaint the findings on trial and the judgment as entered will be correct.

Defendant's objection to evidence that the way, including the gateway, was used by Hopper and his tenants before and up to the date of the grant of the way was properly overruled. Such evidence was competent and relevant in aid of the construction of the grant, as tending to prove that the way was intended to be appurtenant to Hopper's adjoining land.

In view of the construction above given to the grant of the right of way, all other points made by appellant become immaterial, since they are grounded on the assumption that the grant was in gross, and the right granted not transferable.

I think the court below should be instructed to amend

the complaint by striking therefrom the name of Thomas Hopper, and that, with this amendment, the order and judgment should stand affirmed.

SEARLS, C., and BRITT, C., concurred.

For the reasons stated in the foregoing opinion the cause is remanded, and the court below is instructed to strike from the complaint the name of Thomas Hopper. In all other respects the order and judgment appealed from are affirmed, the costs of the appeal to be borne by the appellant.

HARRISON, J., GAROUTTE, J., VAN FLEET, J.

[S. F. No. 394. Department Two.-August 7, 1896.] HENRY MILLER ET AL., APPELLANTS, v. CHARLES F. CURRY, RESPONDENT.

FEES IN SAN FRANCISCO-REPEAL OF SPECIAL ACT OF 1866 BY GENERAL ACT OF 1895-UNIFORM OPERATION OF GENERAL LAWS.-The general act of March 28, 1895, establishing the fees of county, township, and other officers and of jurors and witnesses, is applicable to the city and county of San Francisco, and worked a repeal of the special act of February 9, 1866, there being a plain repugnancy between the two acts, which cannot be disposed of except upon the conclusion that the legislature intended in the act of 1895 to pass a valid general law having a uniform operation throughout the state, which necessarily resulted in the repeal of the special act of 1866.

ID. RULES OF CONSTRUCTION-SPECIAL AND GENERAL STATUTESMAXIM-REPEAL BY IMPLICATION.-Although repeals by implication are not favored, and, where permissible, an earlier special statute will be construed to harmonize with a general later one, under the application of the maxim, Generalia specialibus non derogant; yet these rules only apply where a repugnancy between the two acts is not manifest, and where such repugnancy is manifest, the earlier statute will fall.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. SEAWELL, Judge.

The facts are stated in the opinion of the court.

E. B. & George H. Mastick, for Appellants.

Delmas & Shortridge, for Respondent.

mandate to compel deanswer in a civil case required by the act of

HENSHAW, J.-The action is fendant county clerk to file an without the payment of the fees March 28, 1895, establishing the fees of county, township, and other officers, and of jurors and witnesses, in this state. (Stats. 1895, p. 267.)

The sole question presented on this appeal, and therefore the only question to be decided, is the applicability of the said act of 1895 to the city and county of San Francisco.

At the time of the adoption of the present constitution the fee bill for the city and county of San Francisco was found in an act passed February 9, 1866. (Stats. 1865-66, p. 66.) If that act was repealed by the act of 1895, then the judgment of the trial court is correct. If, upon the other hand the act of 1866 is still in force, appellants' contention must prevail.

Appellant argues that the act of March 28, 1895, though a general act, does not in terms repeal the act of 1866; that there is no necessary repeal by implication; that it does not in terms apply to the officers of a city and county; and that, therefore, the general statute is to be read as silently excluding from its operation the special statute of 1866.

By article XI, section 5, of the constitution, the legislature is enjoined to provide a uniform system of county government for the various counties, to regulate the compensation of county officers in proportion to their duties, and to provide for the strict accountability of all such officers for the fees and moneys collected by them in their official capacity. By section 7 of the same article the provisions of the constitution affecting cities and affecting counties are, so far as may be, made applicable to consolidated city and county governments, while by article IV, section 25, of the constitution, the legislature is prohibited from passing special or local laws affecting the fees or salary of any officer (subdivision 29), or prescribing the powers and duties of officers in counties,

cities, cities and counties (subdivision 28), or regulating county and township business (subdivision 9).

The law under consideration is general in its terms, and, while it makes no distinct mention of officers in consolidated governments, it undertakes to establish the fees, not alone of county and township officers, but of other officers in this state. In the somewhat anomalous municipal corporations recognized by the constitution, and known to the law as consolidated cities and counties, the officers do not lose their distinctive characters as county officers or of city officers merely because they hold within the corporate limits of such governments. The county clerk of the city and county of San Francisco, the sheriff of the city and county of San Francisco, the recorder of the city and county of San Francisco, are each and all county officers. They have no place properly as officers of a city. Upon the the other hand, the mayor of the city and county is distinctly and separately a city officer as distinguished from a county.

A law, therefore, which, under the constitutional mandate, undertook to regulate the duties or the compensation of county officers would fail of a basic requisite of the constitution that all laws of a general nature should have a uniform operation (Const., art. I, sec. 2), if it should be held that its terms did not apply, and were not meant to apply, to county officers in consolidated governments. And it must, therefore, be concluded, without room for question, that the act under consideration is, in its terms, applicable to the city and county of San Francisco.

But, when this point has been reached, appellant contends that he may invoke the rule and principle expressed in Home for Inebriates v. Reis, 95 Cal. 142, and that, under the authority of this case, the city and county of San Francisco must be excepted from the operation of the law. All that this court did in the Reis case was to recognize and give effect to certain wellsettled principles governing the interpretation of stat