Argument for Respondent.

There is no other service aside from that of traveling in the act of conveying prisoners, to which the per diem provided for can apply. It is not intended to compensate him for consenting to be sheriff, for enjoying the honors or bearing the responsibilities of official existence. These do not come within the language of the provision which describes the service. The effect of the construction contended for would be to make the compensation of sheriffs for this service greater under the act of 1874 than it was under the old law, and yet the intention of the legislature was, as it appears in the act, to reduce the compensation of sheriffs and clerks. The provision allowing the sheriff three dollars per day for the time actually employed in conveying convicts to the penitentiary, besides necessary traveling expenses for himself and such convict and the expense of guarding such convict, includes all the compensation which he can receive in consequence of such service."

With the lucid statement of facts and conclusive argument contained in the forgoing opinion, we might well rest the case, but we will briefly state the reasons why we think the petitioner not entitled to mileage as claimed by him.

Section 14, of title 1, of chapter 20, of the Miscellaneous Laws of Oregon, as amended by the act approved October 20, 1876, provides only for mileage in addition to the fees prescribed by chapter 20. The amended section is as follows:

"Section 14. Every officer or person whose fees are prescribed in this chapter, who shall be required to travel in order to execute or perform any public duty, in addition to the fees prescribed in this chapter, shall be entitled to mileage at the rate of ten cents per mile in going to and returning from the place where the service is performed, except assessors, who shall not be entitled to mileage."

While the act of 1874 does not professedly and in express terms repeal the provisions of chapter 20 of the Miscellaneous Laws, in regard to sheriffs' fees, yet being a new and independent act, repugnant to the previously existing law on the same subject, the former statute was thereby necessarily superseded and in effect repealed. (5 Or. 152; Id. 243; Id. 275.) Wherefore, the fees of sheriffs were not "pre

Argument for Respondent.

scribed in this chapter" 20, but were prescribed by the act of 1874, at the time when section 14, of title 1, of chapter 20, was amended by the act of October 20, 1876, and sheriffs are therefore not entitled to the mileage of "ten cents per mile" allowed by the act of 1876, to officers whose fees were then prescribed in said chapter 20 of the Miscellaneous Laws.

66

A subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on principles of law, as well as on reason and common sense, operate to repeal the former." (Smith's Stat. and Const. Con., sec. 786; 7 Mass. 142; 12 Mass. 545.) "When some parts of a revised statute are omitted in the revising act, the parts omitted are not to be deemed as revived by construction, but are to be considered as annulled." (Smith's Stat. and Const. Con., sec. 785; 12 Mass., 537; 1 Pick. 43.) There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy. (1 Bl. Com. 87.)

* *

*

The mischief intended to be remedied by the act of October 29, 1874, is expressed in the emergency clause of that act to be that "the present fees of clerks and sheriffs are manifestly too high, and are therefore an unnecessary burden upon the taxpayers." It would be a startling method of construction, indeed, if the judges should precisely reverse the above canon, and " so construe the act as to suppress the remedy and advance the mischief," by allowing to sheriffs ten cents per mile under the act of 1876, contrary to its letter, beside the fees and traveling expenses allowed by the act of 1874, thus increasing their compensation above what they were entitled to receive under the provisions of chapter 20 of the Miscellaneous Laws, which the legislature declared to be "manifestly too high."

And, further, the point made by his honor the judge of the court below, in his opinion in this case, that the "conveying" of a prisoner to the penitentiary is within itself the

Opinion of the Court-Boise, J.

very "duty to be performed," under the provisions of either sec. 4, of chap. 20, Misc. Laws, or of sec. 5 of the act of October 29, 1874, which duty necessarily includes the act of traveling in order to "convey," is so unanswerably sound, and conclusive of the question at issue, that any attempt on our part to elaborate his argument in that behalf would detract from its conciseness without adding to its force.

By the Court, BOISE, J.:

In this case we are called on to construe 'section 5 of the act of the legislature approved October 29, 1874, providing for the fees of clerks and sheriffs. Said section is as follows: "The sheriff shall receive for conveying a convict to the penitentiary and delivering him to the proper officer thereof, three dollars per day for each day actually engaged, besides necessary traveling expenses for himself and such convict, and the necessary expenses incurred in guarding such convict during such conveyance." This section is a substitute for a former section of the general laws. See Statutes, 603, which provides that the sheriff shall be allowed "for conveying a convict to the penitentiary and delivering him to the proper officer thereof, four dollars per day, besides mileage for himself and such convict, besides the necessary expense incurred in guarding such convict during such conveyance.'

In the section last above quoted, mileage was expressly given to the sheriff for himself and convict; in the latter, this provision is left out, and in lieu thereof the sheriff is given his necessary traveling expenses for himself and such convict. It is claimed that in addition to the allowances in this section, the sheriff is also entitled to charge mileage, under section 14 of chapter 20 of the general laws, see p. 605. This section provides that "every officer whose fees are prescribed in this chapter, who shall be required to travel in order to perform any public duty, in addition to the fees herein before prescribed, shall be entitled to mileage, at the rate of ten cents per mile, in going to and returning from the place where the service is performed."

Opinion of the Court-Boise, J.

A question is made that the sheriff is not one of the officers whose fees are prescribed in the chapter referred to. But suppose it be granted that he is such a person, did he have to travel to a place where this duty was to be performed? The duty to be performed was to convey a convict to the penitentiary. The place where the conveyance (which was the duty to be performed) commenced, was at the county jail where the convict was confined, and extended to the penitentiary. The conveyance was the transportation of the prisoner over the journey, and the responsibility and guarding of the prisoner commenced at the jail and continued along the whole journey, as much as the responsibility in the transportation of freight commenced at the place where the common carrier receives it of the consignor, and continues to the place of delivery to the consignee. The travel was included in the conveyance. If the sheriff is required to summon a juror, his duty is the service which must be performed where the juror is, and if he does not find him, the duty cannot be performed in whole or in part.

But if he is required to transport property from Salem to Portland, and he takes the property at Salem, the service begins to be performed when he takes the property, and continues until he has finished the transportation; the duty to be performed necessarily extends over a certain definite space, and travel is a part of the duty, as much as reading a summons is part of the service. If any travel could be charged in this case for going to the place of performance, it would be for going to the county jail to find the prisoner, for there is where the duty to be performed must commence. We think it was the intention of the legislature to fix in this section 5 all the compensation which a sheriff should be entitled to for this service.

The judgment of the circuit court will be affirmed.

Statement of Facts.

STEPHEN G. SPEAR, APPELLANT, v. J. W. COOK AND V. COOK, RESPONDENTS.

RIGHT OF WAY TO FLOW WATER-GRANT CONSTRUED.-Where S. granted to C. all the water in a certain creek, and the right to convey such water over the land of S. to the land of C., and granted to C. the right "to enter upon lot one (land of S.), and build, maintain, repair, and keep up and in operation, all claims, ditches, pipes, aqueducts, or flumes necessary and proper for the conveyance of said water to the premises of said C.," such conveyance gives to C. the right to construct several canals or courses for the water over said premises of S.

IDEM. By such conveyance, the grantee has the right to convey all the water, and at different times and places.

IDEM. Such grantee may first construct a ditch and take part of the water, and afterwards construct another ditch to convey the balance, or enlarge the first ditch.

IDEM.-Such grantee may also change his ditch when located, if such change is necessary to enable him to convey the water in a convenient and reasonable manner.

IDEM RIGHT TO FLOAT WOOD.-Such grantee may also float wood through his ditch, provided he does not thereby injure the grantor.

APPEAL from Clatsop County.

This is an action for damages brought by appellant against respondents for an alleged trespass claimed to have been committed by them, in entering upon, and building a flume across, certain lands of appellant, and in floating wood through the flume, and thereby causing water to overflow, and portions of said wood to be cast upon the lands of the appellant.

Respondents deny that they were guilty of a trespass in doing any act alleged in the complaint, but justify their acts and doings in the premises under a claim of right by virtue. of the grant contained in a certain deed, executed by appellant to one of them, by which deed the appellant granted to the respondent, James W. Cook, certain lots numbered 2 and 3, and also the water of the east fork of Spear's creek and the right and privilege to divert said water from its channel, and to convey it upon, over, and across said lots 2 and 3, and also to enter upon lot 1, the premises in question, and build, and maintain, and repair, and keep in operation all dams, ditches, pipes, aqueducts, or flumes,