Volume 188 — California Reports

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Taxation—Foreign 'Corporation—Intrastate Business.—Since the exercise by a foreign corporation of the power of engaging in intrastate business in this state is a franchise in this state not exempt under the laws of the United States and not excepted in the state constitution, it is property taxable under section 14 of article XIH of the constitution.</p> <p>[2] Id.—Constitutional Law—Interpretation of Section—Reports of Revenue Commission.—In view of the definite and unambiguous language of section 14 of article XIII of the constitution relating to the taxation of franchises of corporations, it is not permissible to go outside of the constitution itself and consult the reports of the revenue commission which proposed the general system of taxation ultimately embodied in such section, for the purpose of interpreting the meaning of the section.</p> <p>[3] Id.—Recovery of Franchise Tax—Pleading—Complaint—General Demurrer.—In an action by the state against a foreign corporation for the recovery of a franchise tax, the complaint is sufficient as against a general demurrer, notwithstanding the use of language susceptible of the construction that the tax was levied on the right to do business in this state rather than the actual exercise of such right, where it is apparent from the pleading as a whole that it was not the mere right to do business, but the actual exercise of the right within the state which constituted the property taxes.</p> <p>[4] Id.—Admission of Answer—Intrastate Business—Denials of Franchise—Proper Elimination.—Where in such action the defendant admitted in its answer and at the trial that it was doing an intrastate business in this state, it was not error to strike from the pleading the denials that it had or possessed a franchise in this state.</p> <p>[5] Id.—Method of Valuation of Franchise—Procedure of Other Tears.—In such action, conceding that the defendant was entitled to examine the members of the board of equalization concerning the method pursued in arriving at the value of the property to be taxed, the methods followed in other years and the rate at which property in general was taxed for purposes other than state purposes was neither relevant nor material.</p> <p>1. Taxation of corporate franchises, notes, 131 Am. St. Rep. 862; 7 Ann. Cas. 518.</p> <p>[6] Id.—Proportionate Division op Corporate Excess— Proper Method op Valuation.—The fixing of the amount of the corporate excess or intangible property of a foreign corporation doing an intrastate business in this state by dividing the entire excess in the proportion that the business in this state bears to the entire business is not violative of the interstate commerce clause and of the fourteenth amendment of the federal constitution.</p>

<p>[1] Workmen’s Compensation Act—-Members of Family—-Casual Employment—Total Dependency.—Under the Workmen’s Compensation Act, a sister and nephew of a deceased employee were properly awarded the compensation provided in the case of total dependency, .whore for several years prior and up to the time of his death he provided a home for them, the means to operate and maintain it, and lived with them, notwithstanding they at irregular periods during a few months of the year obtained casual employment.</p> <p>[2] Id.—Status of Dependent — Incapacity of Self-support Unnecessary.—Under the Workmen’s Compensation Act a person is not required to be physically or mentally incapable of supporting himself in order to be adjudged- a dependent.</p> <p>1. Who is dependent within Workmen’s Compensation Act, notes, Ann. Cas. 1913E, 480; Ann. Cas. 1918B, 479; L. R. A. 1916A, 121, 163, 248; L. R. A. 1917D, 157; L. R. A. 1918F, 483.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Taxation-—Intangible Property op Domestic Corporation—Interstate and Foreign Business.—-The state has the authority to tax the intangible property of a domestic corporation within the state regardless of the fact that such property derives its value from interstate and foreign commerce.</p>

PROCEEDING in Certiorari to review an order of the Railroad Commission fixing valuation of a water plant. The facts are stated in the opinion of the court.

<p>[1] Election Law ■— County Charter — Election op Freeholders to Frame—Sufficiency op Appointment of Verification Deputies.— An appointment of verification deputies by candidates at an election of freeholders to prepare and propose a charter for the government of the county is not invalid because it consists of one paper signed by all of the candidates for members of the board of freeholders instead of separate papers signed by each for himself alone, and is in the singular number. The fact that it is signed by all of the candidates may make it also a joint appointment of them all, but it comes within the terms of the statute by the fact that, in legal effect, it is also a several appointment.</p> <p>[2] Id. — Residence of Candidates. — The law does not require such appointment of verification deputies to state the residence of the candidates.</p> <p>[3] Id.—Signing by Agent.—There is no provision of law that forbids the signing of such appointment of verification deputies by an agent.</p> <p>[4] Id.—Single Nomination Paper.—There is no provision in the law that forbids several candidates for such an office, not exceeding the number to be elected, from having their names inserted in a single nomination paper and circulating it in that form.</p> <p>[5] Id.—Name of Office.'—It is sufficient for the candidate or voters who sign the nomination paper in such case to designate the office by any form of words that will describe it with reasonable certainty, as this particular office is not given a special name in the constitution or in any statute.</p> <p>[6] Id. — Statement of City — Direct Primary Law. — The direct primary law does not require that such nomination paper shall "state” that it was circulated in the city, town, or county named, but only that it shall “bear the name” of such city, town, or county. If the name is inserted in the caption or indorsed on the back of the nomination paper, it substantially complies with the law.</p> <p>[7] Id.—Affidavits of Verification Deputies—Authority of Notary. A notary public is not disqualified to administer the oaths to such verification deputies by reason of the fact that she signed the name of another to the appointment as his attorney in fact.</p> <p>[8] Id.—Filing of Affidavit of Candidate—Primary Election Law Inapplicable. — In view of the provision of the constitution authorizing the framing of charters for county government that the board of supervisors may order the holding of a special election for the purpose of electing the board of freeholders, which election shall be held not less than twenty nor more than sixty days after the adoption of the ordinance directing the holding of it, the requirement concerning the filing of an affidavit by the candidate prior to his name being placed on the ballot contained in the primary election law cannot be applied to the election of persons to serve on the board of freeholders to prepare a county charter.</p> <p>[9] Id. — Eligibility of Candidates — Mandamus. — The clerk cannot raise an objection and refuse to place the names of candidates to the board of freeholders to prepare and propose a charter for the • government of a county on the ballot because of his knowledge, information, or belief that a proposed candidate is not eligible to the office, and consequently it would not be cause for mandamus to compel him to omit such candidate from the printed ballot.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, fixing amount of inheritance tax. John T. Nourse and Frank H. Dunne, Judges.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facte are stated in the opinion of the court.</p> <p>Alfred Siemon, Edson Abel and Kaye, Siemon & Abel for Appellants.</p>

<p>[1] Mechanic’s Lien — Withhold Notice — Essentials op Claim. — Under the mechanic’s lien law, in order that a notice to withhold sufficient funds to meet the demand of the claimant, which notice is in effect an equitable garnishment, may be effective, it is essential that the party filing the same shall have performed labor for, or furnished materials, or both, or agreed to do so, to the contractor or other person acting by the authority of the owner, in connection with work done or to be done under the contract by the terms of which the funds sought to be impounded are or will become due and payable.</p> <p>[2] Id. — Public Work — Construction of Bridge—Claim for Engineer’s Services—Insufficiency of.—The fact that the board of supervisors of a county may have entered into a contract with a contractor to build a bridge according to the designs of a certain engineer, which bridge was never constructed as so designed, does not give the engineer a right, through the medium of the statutory notice to withhold, to garnishee funds due or to become due under an agreement between the same parties for the construction of a bridge at the same point, but of another design, prepared by a different engineer and which did not embrace any of the inventions and devices of the claimant.</p>

<p>[1] Estates of Deceased Persons—Will Contest—Delay in Issuing Citation—Belief from—Jurisdiction.—The issuance of the citation under a petition for revocation of probate of the will of a deceased person is not jurisdictional, and the trial court has power to relieve the petitioner from failure to issue such citation within a year if, in its opinion, such failure was the result of excusable neglect.</p> <p>[2] Id.—Excusable Neglect.—Where an attorney petitioning for revocation of probate of the will of a deceased person, while busily engaged in the trial and briefing of two important eases and very much engrossed in those matters, as well as a large number of other matters pertaining to the business of his office, including the will contest, placed the petition in the hands of a clerk employed by him, with instructions to file and serve the same, and said clerk, who was duly admitted to practice as an attorney and had always been efficient and conscientious in Ms duties, but who was unfamiliar with the provisions of section 1328 of the Code of Civil Procedure and believed that the only service of the petition necessary was by delivery to the party or attorney for the executor, served a copy of the petition upon the executor and filed the same, the neglect in not having a citation issued within one year after probate was excusable and the petitioner entitled to relief therefrom, where the employer, who believed that the matter had been properly attended to, upon discovering the default after the expiration of the one year period, procured and served the citation within six days after the expiration of such period.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Malicious Prosecution — Action fob Damages — Want of Probable Cause—Implied Finding—Evidence.—In an action for damages for malicious prosecution, where the evidence was ample to show that plaintiff claimed to be the owner of the property alleged to have been stolen and that defendant knew of the claim, it cannot be said that an implied finding of the jury that facts and circumstances surrounding the taking of the property were not such as would constitute probable cause for the prosecution was not justified.</p> <p>[2] Id.—Honest Taking of Goods—Absence of Crime.—A person taking goods which he honestly believes are his own, under a claim of title, is not guilty of larceny, nor of embezzlement, if the property is openly and avowedly taken under a claim of title preferred in good faith.</p> <p>[3] Id. — Defense — Advice of Counsel. — In such a case defendant could not rely upon the opinion of the district attorney to establish probable cause for the prosecution where the evidence shows that he did not inform the district attorney that plaintiff was claiming title to the property and it was not shown that the district attorney had learned of such a claim from any other source, as in such event there was not a full and fair recital of the facts upon which the district attorney based his advice.</p> <p>[4] Id.—Acting on Advice—Absence of Belief in Guilt.—In such a ease the jury may have concluded that the defendant, even though proceeding in the prosecution on the district attorney's advice, did not himself believe plaintiff guilty of an offense in removing the property in question, in which event there would have been a want of probable cause, even though the advice of the district attorney were based on a full and fair recital of the facts.</p> <p>[5] Id. — Essential Facts — Malice — Want of Probable Cause — Burden of Proof.—The two essential facts which must concur to support an action for malicious prosecution are want of probable cause and malice, and the burden of proving both is upon the plaintiff. Malice in fact is really the foundation of the action and is usually the pivotal point on which the action turns. It is always a fact directly in issue. Its existence may be inferred by the jury from want of probable cause for the prosecution, or other acts or declarations of the defendant expressing or indicating prejudice, ill will, or malicious motive in the matter of the prosecution. The want of probable cause does not raise a legal presumption of malice; the law presumes nothing on that issue any more than it does on any other issue of fact in a civil action. The jury may, however, if they find that there was no probable cause for the prosecution, infer malice therefrom, although malice is not a necessary inference to be deduced therefrom.</p> <p>2. Larceny or embezzlement as affected by belief in right to property taken, note, 41 L. B. A. (H. S.) 549.</p> <p>3. Advice of counsel as defense to action for malicious prosecution, notes, 1 Ann. Cas. 932; 11 Ann. Cas. 954; Ann. Cas. 1912D, 423; 18 L. B. A. (H. S.) 49; 39 L. B. A. (H. S.) 207.</p> <p>5. “Malice” as element of- malicious prosecution, note, 21 Ann. Cas. 756.</p> <p>[6] Id.—Evidence—Bills of Sale.—In such a ease bills of sale to the property alleged to have been stolen, one of which was executed by the party claiming the property to plaintiff’s grantor and another by the latter to plaintiff, were admissible to prove the latter’s claim of title to the property, his good faith in asserting such claim, and, also, by other evidence of conversations between plaintiff and defendant concerning the bills of sale, to prove defendant’s knowledge of such claim.</p> <p>[7] Id.—Admissibility of Newspaper Articles.—In such a case newspaper articles giving accounts of the preliminary examinations of plaintiff on the prosecution are admissible to prove the damage caused by the prosecution where no objection was made at the trial that they were not plain, unvarnished, privileged reports of the proceedings of the court and the only objection was that they were incompetent, irrelevant, immaterial, and hearsay.</p> <p>[8] Id.—Admissibility of Photographs of Plaintiff.—In such a case photographs of the plaintiff, taken by the authorities when he was removed to the county jail, were properly admitted in evidence for the purpose of showing the humiliation and consequent damage which he suffered, it appearing that in taking the photographs the sheriff acted within his rights and pursuant to law, and that the taking of them was one of the natural sequences of events which follow the arrest of a person on a felony charge.</p> <p>[9] Id.—Instructions—Probable Cause—Claim of Title.—In such a case an instruction that, if defendant at the time of filing the charges against plaintiff knew that the latter was taking the property in good faith under a claim of • title, defendant would not have probable cause for prosecuting him, did not cast upon the defendant the burden of making an investigation of the facts and of judicially determining plaintiff’s guilt or innocence.</p> <p>[10] Id. — Malice — Want of Probable Cause — Presumption — Instructions.—In such a ease, while an instruction to the jury that “if you find from the evidence that the defendant, in good faith, communicated to the district attorney of this county all the material facts known to him, affecting the question of the guilt of the plaintiff, before a warrant was issued, and then acted upon the advice of the district attorney, the presumption of malice and want of probable cause is rebutted, and this action against him for malicious prosecution must fail,” if considered alone by using the word “presumption,” might tend to convey the impression that the burden of proving that defendant acted without malice and had probable cause for prosecuting plaintiff was on the defendant, it could not have .been prejudicial to defendant where in preceding instructions the jury was repeatedly informed that in order to recover, it was necessary that plaintiff establish the fact that he was prosecuted maliciously and without probable cause, and it was further told what facts must be established by plaintiff in order to show want of probable cause.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Estates of Deceased Persons—Claims Against—Evidence—Disqualification of Parties and Assignors. — The parties, or assignors of parties, to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim or a demand against the estate of a deceased person cannot be witnesses as to any matter or fact occurring before the death of such deceased person.</p> <p>[2] Id.—Wills—Contract for Compensation—Claim.—It is essential to an action for breach of contract to compensate one for services by making provisions in such person's favor in a will that a claim against the estate be presented, and the rule of section 1880, subdivision 3, of the Code of Civil Procedure, prohibiting parties or their assignors from testifying, applies to such a claim.</p> <p>[3] lb.—Pleading—Sufficiency of Complaint.—In an action upon a claim against the estate of a deceased person, where the complaint alleges the pendency of the administration of the estate and presentation and rejection of the claim, which is also set out in full, and then alleges that on a certain date there became due and payable to plaintiff from the estate and that said estate became indebted to plaintiff on said date for and on account of services rendered and performed for the decedent, during her lifetime and at her special instance and request, in a certain sum, and that said services so rendered and performed by plaintiff at the special instance and request of the decedent were and are of the reasonable value of the sum named, and said sum was and is the reasonable value thereof, followed by an allegation of nonpayment, it was error to hold that the count did not state a cause of action.</p> <p>[4] Id.—Claim Against Estate—Construction.—The fact stated in a claim against the estate of a deceased person should not be too strictly construed, for such a claim need not be drawn with the precision which would render a complaint good against a special demurrer, and its sufficiency is not to be decided by the rules of pleading.</p> <p>[5] Id. — Claim for Services as Daughter — Absence of Express Contract for Compensation—When Contract not Implied.—In an action upon a claim against the estate of a deceased person, where the claim is based upon an alleged express contract of the decedent to make provision for the claimant in her will, in consideration of the latter occupying the position of and performing the ordinary duties of daughter to the decedent, in the absence of competent evidence of an express contract, the claimant being disqualified from testifying, recovery cannot be had, as the law will not imply a promise of compensation under the circumstances to one basing her claim upon such services as would be rendered by a daughter.</p> <p>5. Implication of agreement to pay for services rendered by relative or member of household, notes, 20 Ann. Cas. 394; 11 L. R. A. (N. S.) 873.</p>

<p>[1] Estates of Deceased Persons •— Wills — Bequest to Charity — Identity of Beneficiary.—Where a decree of distribution of the estate of a deceased person distributes the property to trustees to be held until the death of the mother or sister of the decedent, at which time the trust is to terminate and the property to vest in, among others, a charitable institution, formerly conducted by a corporation whose existence had terminated, but at the time of decree conducted by a new corporation, the decree should be construed as a distribution in trust for the new corporation then in existence, for it is clear that the real beneficiaries of the trust are the children in the institution and the appropriate custodian of the trust fund, upon the termination of the testamentary trust, the corporation operating the institution.</p> <p>[2] Id. — Decree of Distribution — Determination of Meaning and Effect of Law.—A decree of distribution of the estate of a deceased person is a conclusive determination of the meaning and effect of the will, and the will itself cannot be looked to for the purpose of interpreting .the decree, except in so far as it is referred to and made a part thereof.</p> <p>[3] Equity — Form of Corporation — When Immaterial. — Courts of equity look behind the corporate form to the persons behind that form where necessary for the purpose of doing justice.</p> <p>[4] Id.—Doctrine of Cy Pres—Object of Trust Under the Doctrine of Cy Pres.—Courts of equity in this state have jurisdiction, derived from the English common law, to establish and enforce charities, when trustees competent to take the legal estate are named, and the class to be benefited and the individuals to be designated by the trustees are capable of ascertainment; and under said doctrine such orphan asylum is the proper object of the trust provided for in the decree of distribution.</p> <p>[5] Estates of Deceased Persons — Trusts •— Settlement of Account.—The objection to the final account of testamentary trustees that they violated the terms of the trust in paying certain expenses out of the corpus of the estate instead of out of the income before the termination of the trust cannot be sustained where these matters were settled in their first account.</p> <p>[6] Id.—Duty of Trustees After Termination of Trust—Expenses and Compensation .— It is the duty of trustees to care for the trust estate, even after the trust terminates, where there is a dispute as to the rights of the beneficiaries, until the matter is settled by the court having jurisdiction over the settlement of their final account.</p> <p>[7] Id.—Decree of Distribution — Invalid Charitable Bequests — Remedy.—A decree of distribution made in accordance with the terms of a will is not void as to distributed charitable bequests which are invalid under the statute, even though such error appears on the face of the decree, since the court has jurisdiction to make an erroneous decree and the remedy is by appeal</p> <p>[8] Id. —Consent to Erroneous Decree.—The mere fact that a decree of distribution was made in accordance with the terms of the will, notwithstanding the fact that the will was invalid as to charitable bequests, would not necessarily show that the decree was erroneous,' as it might have been consented to by the persons who would otherwise be entitled to receive the trust estate and for that reason be valid.</p>

<p>APPLICATION for a Writ of Supersedeas to stay execution pending appeal directed to the Superior Court of Glenn County. J. E. Prewett and H. C. Bell, Judges.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Death prom Explosion op Roop Coating—Agency —Instruction.—In an action for death from the explosion of roof coating, which it is alleged in the complaint defendants negligently represented was nonexplosive, there was no error in instructing the jury that if it should find from the evidence that the roof coating was sold to a certain party through a certain salesman and that the salesman was acting exclusively as the employee of a company other than one of the defendants, no liability for the accident could be imputed to any person or company other than that company, as a matter of law, and therefore it would become the jury’s duty in such circumstances to return a verdict for the defendants, it being contended that the evidence was uncontradieted that the salesman was employed by the company in question and the salesman having testified that he did not actually sell the article. It was for the jury to determine by whom the salesman was employed and whether or not he was the one through whom the article was sold.</p> <p>[2] Id.—Assumption op Fact in Instruction.—Such instruction does not assume that the agent in question sold the roof coating where it opens with the formula, “If you find from the evidence,” and the jury is plainly told to decide whether or not the sale was made through the salesman in question, and if it finds the sale was so made, to consider whether or not, in making the sale, the salesman was acting as agent for the company in question.</p> <p>[3] Id. — Representations as to KTonexplosibility.— Objection to such instruction on the ground that in directing a verdict for defendants, if the salesman is found to be the agent of the company in question, it assumes that no representations as to nonexplosibility were made by any employee of defendants or by anyone other than the salesman in question, is not warranted by the terms of the instruction, which relate only to the subject whether or not there was a contractual relation between the purchaser, or his agent who negotiated the purchase, and the defendants, as other instructions which were not objected to fully covered the subject of such representations and supplied the element omitted from this instruction.</p> <p>[4] Id.—Agency.—Such instruction is not objectionable on the ground that it assumes the roof coating was sold by the company other than defendants, leaving out of consideration any agency which may have existed between it and the defendants, where other instructions cover the subject of agency, actual and ostensible, and under them and this instruction the jury could properly have considered whether or not this company or its representatives were acting as agents of the defendants, and could have found for plaintiff even though the salesman himself were acting exclusively as agent for the company other than defendants.</p> <p>[5] Id.—Representations—Agency—Instruction.—In such a case an instruction, in effect, that if the jury should find from the evidence that a check issued by the deceased (who was the agent of the purchaser of the roof coating) for the payment of the roof coating was payable to one of the defendant companies, but that the transaction in fact was between the purchaser and a company other than the defendants, and that it was a customary thing for checks for such transactions to be made out to one of the defendant companies, and that if the jury should find in point of fact that the roof coating was sold in the first instance by the defendant company to the company other than the defendants and was thereafter sold by the latter company to the purchaser and the check in question was a form of payment to the latter company and was so treated by the defendant company and the other company, that then the controlling fact would be the character of the transaction as a sale between the purchaser and the company other than the defendant companies, if the jury should find such to be the fact, and in that event it would become the jury’s duty to return a verdict for the defendants, is not misleading.</p> <p>[6] Id. — Instruction for Verdict for Particular Party — Inclusion of All Circumstances.—While it is true that where instructions conclude with the formula that if the jury find the propositions therein recited to have been established, their verdict should be for a particular party, each separate instruction so drawn should in itself show all the circumstances which must concur to warrant such a verdict, the failure of the above instruction to cover the subject of false representations, while erroneous, was not prejudicial, although the subject was fully covered in other instructions, where the evidence does not show that any such representations were made by either of the defendants.</p> <p>[7] Id.—Agency—Failure to Charge on.'—There was uq error in the omission from the instructions of any reference to the subject of agency, where the jury was charged solely upon the hypothesis that the transactions consisted of sales directly between the various parties, as under such circumstances the question of agency was not involved.</p> <p>[8] Id.—Understanding as to Whom Business was Done for—Instruction.—Such instruction is not open to the objection that the jury should find for the defendants, provided the cheek given by the purchaser’s agent was treated by the defendant company and the company other than the defendants as a form of payment to the latter, regardless of the understanding the purchaser’s agent had as to who he was doing business with.</p> <p>[9] lb.—Lack of Privity of Contract — Dangerous Substances.— In an action for death resulting from an explosion of roof coating, an instruction as to the right of recovery without reference to privity of contract between the parties is not erroneous in omitting all reference to the representations alleged to have been made by the defendants, as to the nonexplosive character of the coating, who it was claimed sold the coating to the deceased, where the subject of such representations is covered by other instructions.</p> <p>[10] Id.—Fraudulent Representations—Nonexplosibility of Coating—Instruction.—In such a case it was not error to give an instruction, in substance, that if the jury should find from the evidence that there was no deceitful or fraudulent representation by the manufacturer or seller of the roof coating when the same was sold to the purchaser through his agent, the deceased, whether as to the explosiveness or inflammability of the article in question, the explosion of that article and the consequent injury to the deceased could not, as matter of law, be imputed as a liability to the manufacturer or seller of the article, the instruction omitting all reference to representations negligently made in allowing recovery only in the event that there were representations made fraudulently, but the jury being fully advised in other instructions that negligence of defendants’ agents and employees was imputable to defendants and that, if any of them was negligent in the manner alleged in the complaint, respondents would be liable.</p> <p>[11] Id. — Instruction Outside Issues. — An instruction in such a case, that “the burden of proof in this ease is upon the plaintiff, not upon these defendants. It would be incumbent upon the plaintiff, not upon the defendants, to satisfy your minds by a preponderance of all the evidence in the ease, that any deceitful representation touching the explosiveness of the article in question when brought into contact with flame, was made by the manufacturer or seller or by any authorized agent in the premises, and if you should find from the evidence that no such representation has been proved by a preponderance of the evidence, I instruct you, as matter of law, that the ease of this plaintiff must fail of proof in respect to such representation, and so far as any such representation in that event is concerned, you would not be authorized in law to return any verdict in this ease except a verdict for the defendants,” correctly states the law on the subject of the burden of proof, and where there was neither allegation nor proof -of any representation that the roof coating was nonexplosive when brought into contact with flame, the instruction was outside the issues.</p> <p>[12] Id.—Burden op Proof—Instruction.—In such a case there was no error in instructing the jury that the evidence must “satisfy your minds,” where these words were coupled with the language “by a preponderance of the evidence” and in other instructions “preponderance of evidence” was clearly defined.</p> <p>[13] Id.—Notice op Danger — Instruction.—An instruction in such a case that if it were found the deceased was notified by a label upon the barrels that lighted matches should be kept away therefrom, or if it were found in the exercise of ordinary care he could have seen the label, and, notwithstanding the same, he applied a lighted match to or in the neighborhood of the barrel, and that in so doing he did something which a reasonable and prudent man would not have done, he was guilty of contributory negligence, is not erroneous in using the word “could” instead of “should” with reference to seeing the label, since the use of the latter word would have involved an assumption that the label was on the barrel, whereas the evidence was conflicting on that point.</p> <p>[14] lb.—Liability op Dependants—Instruction.—In such a ease there is no error in instructing the jury in effect that plaintiff has brought its action against two named defendants and that the verdict in the case must depend upon the liability of these two companies, or either of them, and that it cannot be made to depend upon the liability of any company or person not a party to the action, and that if the jury should find from the evidence that the transaction in suit, namely, the purchase of the roof coating in question, was a transaction between the purchaser through Ms employee upon tho one hand, and some company or person other than the defendants upon the other hand, no liability for the accident can be imputed to either of the defendants and the verdict should be for them.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles S. Burnell, City Attorney, Jess E. Stephens, City Attorney, Wm. P. Mealey, Assistant City Attorney, and Lucius P. Green, Deputy City Attorney, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[l] Action to Quiet Title—Deed—Execution and Delivery—Sufficiency of Evidence.—In this action to quiet title it is held that the evidence is sufficient to sustain the finding of the execution and delivery of a deed upon which plaintiff bases her title.</p> <p>[2] Id.—Delivery—Request not to Record.—The oral request of the grantor that a deed be not recorded until after her death does not defeat a delivery otherwise effective.</p>

<p>[1] Bailroad Commission—Bulbs and Regulations—Discretion.— The making of rules and regulations by the Railroad Commission governing the rates of a canal company is a matter largely, if not entirely, discretionary with the commission.</p> <p>[2] Id.-—Public Utilities—Payment of Debt—Jurisdiction of the Commission. — The Bailroad Commission has no jurisdiction to entertain actions to compel public utilities to pay debts owing by them for money borrowed to enable them to construct works.</p>

<p>[1] Search and Seizure—Fourth Amendment to Federal Constitution—Application op.—-The fourth amendment to the constitution of the United States, relating to searches and seizures, only applies to the federal government and its agencies.</p> <p>[2] Id. — Search-warrant — Description op Property — Constitutional Law—Penal Code.—Under section 19 of article I of the constitution, providing against unreasonable searches and seizures, no search-warrant may lawfully issue, except upon oath or affirmation, particularly describing the things to be seized; and under section 1525 of the Penal Code such a warrant may not issue except upon affidavit particularly describing the property sought to be made the object of the search, and by sections 1528 and 1529 of said code the warrant itself must describe the property with reasonable particularity.</p> <p>[3] Evidence—Competency—Source.—Where competent evidence is produced on a trial the courts will not stop to inquire or investigate the source from whence it comes or the means by which it was obtained.</p> <p>[4] Search and Seizure—Unlawful Seizure—Use op Property as Evidence—Federal Bule.—Where the federal government or its agencies has obtained possession of the property of a defendant through an unlawful search and seizure, and such defendant has made a timely demand for the return thereof, which demand has been denied, such property cannot be used in evidence against him without violation of the fourth and fifth amendments to the federal constitution.</p> <p>[5] Id.—Security Against Unlawful Seizure—Constitutional Law —Evidence.—The seizure by officers of the law of private papers and effects by unlawful and unauthorized entry and search, to be used as evidence in criminal prosecutions of the persons from whom taken, is a violation of the constitutional right to security against unreasonable searches and seizures; and such constitutional guaranty is one which should be zealously enforced in behalf of every citizen; but the subsequent use of articles so taken as evidence is not itself any part of the unlawful invasion of such constitutional guaranty.</p> <p>3. Admissibility against defendant of documents or articles taken from him, notes, 15 Ann. Cas. 1205; Ann. Cas. 19150, 1182 ; 59 L. R. A. 465; 8 L. R. A. (N. S.) 762; 34 L. R. A. (N. S.) 58; L. R. A. 1915B, 834; L. R. A. 1916E, 716.</p> <p>[6] Id. — Recovery op Property Unlawfully Seized — Independent Procedure.—A proceeding for the recovery of property unlawfully seized is independent of the criminal proceeding in which it is sought to use such articles as evidence.</p> <p>[7] Id.—Appeal—Matters Reviewable on.—Only matters incident to the cause of action on trial are subject to review on appeal therefrom, and for this reason an objection on the trial to the admission of evidence on the ground that it has been wrongfully seized does not lie, and cannot be reviewed on the appeal, and any right so involved must be raised in an independent proceeding.</p> <p>[8] Evidence—Right op Accused to Remain Silent—Constitutional Law.—Section 13 of article I of the state constitution and the fifth amendment to the federal constitution, providing that no person shall be compelled in any criminal ease to be a witness against himself, means that he has the right at all the stages of the investigation to stand silent and inert before his accusers, and if he is required to contribute by word or act to the evidence against himself, his constitutional right is invaded.</p> <p>[9] Criminal Law—Attempt to Commit Crime.—If the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime. b</p> <p>[10] Id.—Indictment—Joinder op Causes.—Where different counts of an indictment refer to entirely separate offenses, but which are of the same class, and closely related in the plan and scheme of their commission, they may be appropriately joined.</p> <p>[11] Id.—Confession—Withdrawal of Testimony from Jury—Curing op Error.—Where certain incriminatory statements made by the defendant to one of the arresting officers were admitted in evidence, but the trial court withdrew this part of the testimony from the jury with instructions to disregard it, the error, if any, was cured.</p> <p>[12] Id.—Argument—Comment on Failure of Defendant to Testify.—In a criminal prosecution where the defendant took the stand as a witness in his own behalf, the prosecution in argument was entitled to comment not only on what he said, but as to what was left unsaid which was pertinent to and within the scope of the matter to which he testified.</p> <p>[13] Id.—Misconduct op District Attorney—Review on Appeal. It has been the disposition of the supreme court where timely objection was not made or where the court has by appropriate instructions to the jury withdrawn improper comment of the district attorney from their consideration, to deny a reversal, if the evidence in the case was such as to ■ clearly support a conviction. Where there was reasonable ground to presume prejudice from such comment, it has been held to require a reversal.</p> <p>[14] Id. — Prejudicial Misconduct — When not Reversible. — In a criminal prosecution, although the action of the district attorney in commenting upon the failure of the defendant to testify in a case in which he did not become a witness, which ease, though entirely separate, was joined in the indictment with a ease in which he testified, was clearly error, the judgment will not be reversed where it appears that there was not a miscarriage of justice.</p> <p>[15] Id.—Misconduct of Juror.—In a criminal prosecution the rights of the defendant cannot be said to have been prejudicially affected by the alleged misconduct of one of the jurors by reason of a passing conversation with a member of the grand jury, during the trial, who was in the courtroom at one of the adjournments, in which the grand juror remarked that he was a member of the grand jury and interested in the case.</p>

<p>[1] Employee and Employee—Regulation of Hours of Drug Clerks —Act of 1905 — Constitutionality of. — The statute of 1905 (Stats. 1905, p. 28, as amended by Stats. 1907, p. 273; Stats. 1921, p. 1323), regulating the working hours of employees engaged in selling, at retail, drugs and medicines, compounding physicians’ prescriptions, and providing a penalty for its violation, is not unconstitutional.</p> <p>[2] Id.—Police Power—Regulations and Restrictions in Employment.—It is now generally recognized and held that in the exercise of its police power the state may impose such regulations and restrictions upon the relation of master and servant as are conducive to the public welfare, health, and safety.</p> <p>[3] Id.—Pleading—Insufficient Complaint.—The limitation of working hours prescribed by the statute of 1905, regulating the hours of drug clerks, applies only to the time the clerk is actually engaged in- performing the work of selling drugs or other medicines, or compounding physicians’ prescriptions, and the time spent by him in other duties is not to be taken into account in determining whether or not the law has been violated; and a complaint alleging a violation of section 2 of the act, which charges the defendant with having worked two hours at the prescribed work on the day in question, although it is alleged he worked ten hours on said day, the balance of the time being in lines not covered by the act, does not state a public offense.</p> <p>[4] Criminal Law-—Penal Statutes—Construction.—Penal statutes must be construed to reach no further than their words; no person can be made subject to them by implication.</p> <p>1. Validity of statutory regulation of druggists or pharmacists, note, 10 Ann. Cas. 399.</p> <p>Constitutionality of legislative limitation of hours of labor, notes, 65 L. R. A. 38; 12 L. R. A. (N. S.) 1130; 26 L. R. A. (N. S.) 242; 35 L. R. A. (N. S.) 628; 40 L. R. A. (N. S.) 893; 51 L. R. A. (N. S.) 361; L. R. A. 1915F, 829.</p>

<p>The facts are stated in the opinion of the court</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Insane Persons—Jury Trial—Time.—Under section 2174 of the Political Code, trial by a jury of a person charged with insanity may be had after the ten days mentioned in the section.</p> <p>[2] Id.—Verdict by Less Than Whole Jury—Authority for.—The jury trial authorized by section 2174 of the Political Code is not the common-law juiy trial, and hence the legislature may authorize a verdict by less than the whole number of the jury.</p> <p>[3] Id.—Trial of Insanity—Habeas Corpus.—While the question of sanity may be tried by the supreme court on habeas corpus, it would require too much of that court’s time, and too great inconvenience to witnesses, and, therefore, the writ will be made returnable before the superior court of the county where the petitioner is confined.</p> <p>[4] Id. — Petition for Writ of Habeas Corpus — Verification._A petition for writ of habeas corpus the statute now provides must be under oath.</p>

<p>[1] Criminal Law—Motion in Arrest of Judgment—Nonappealable Order.—An order denying a motion for an arrest of judgment is not appealable.</p> <p>[2] Id. — Extradition •— Trial for Different Offense. — It is now settled by the great weight of authority that a person charged with crime, who is extradited from one of the several states to the one from which he was a fugitive, may be tried for any criminal charge which the latter state may have against him, even though it is distinct from the offense named in the extradition papers.</p> <p>2. Right, after interstate extradition, to try prisoner for crime not designated in requisition, notes, 10 Am. St. Rep. 207; 3 Ann. Cas. 543; Ann. Cas. 1914B, 799.</p> <p>[3] 'Id.—Sections 777 and 785, Penal Code—Amendment of 1919 to Section 777.—The amendment of 1919 to section 777 of the Penal Code, referring to jurisdiction of wards of juvenile courts, merely added another exception to the general application of the section and did not repeal section 785 of said code, which declares that when the offense, either of bigamy or incest, is committed in one county and the defendant is apprehended in another, jurisdiction is in either county.</p> <p>[4] Id.—Repeal of Statutes—Presumptions.-—Courts do not favor repeal of statutes by implication, and the presumption is always against the intention to repeal where express terms are not used. To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable or the intention to effect the repeal must be otherwise clearly expressed.</p> <p>[5] Id.—Extradition for Embezzlement—Trial for Bigamy—When Defendant Apprehended in County.—Where a defendant was extradited from another state upon a charge of embezzlement to a certain county of this state and while in said county as a prisoner under such charge an amended information accusing Mm of bigamy was filed and he was arrested under a warrant issued in said county, he was “apprehended” in that county within the meaning of section 785 of the Penal Code and was legally triable there.</p> <p>[6] Id.—Jury Trial—Section 7 of Article I of the State Constitution—Construction.—The settled construction of section 7 of article I of the state constitution is that it gives a right to a trial by jury in criminal eases only where the right existed at common law and at the date of the adoption of the constitution, one of the incidents of wMch right is the place of trial.</p> <p>[7] Id.—Bigamy—Venue—Section 785, Penal Code—-Constitutionality of.—Section 785 of the Penal Code, in so far as it provides that when the offense of bigamy is committed in one county and the defendant is apprehended in another he may be tried in either county, is in accordance with common law, does not transgress section 7 of the “Declaration of Rights,” and is constitutional.</p> <p>4. Repeal of statutes by implication, notes, 14 Am. Dec. 209; 88 Am. St. Rep. 271; 5 Ann. Gas. 202.</p>

<p>APPLICATION for a Writ of Mandate to require the state board of control to approve the claim of a member of the state board of equalization for traveling expenses.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Prohibition to stay the trial of an action pending in the Superior Court of the State of California in and for the County of Sacramento. C. 0. Busick, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Mechanic’s Lien—Furnishing Material for Structure—Use in. In order to entitle a materialman to a lien as against the owner of premises upon which a structure has been erected, the materials must not only have been furnished to be used in such structure but must also have been used therein.</p> <p>[2] Pleading.—The complaint whereby a lien for materials is sought to be established and enforced must contain substantial allegations • to the effect that the said materials were furnished for and to be used in, and that they were used in the building in question.</p> <p>[3] Id.—Language of Statute—Unnecessary.—While the essential requirements of the statute with reference to mechanics’ liens must be shown to have been complied with in the plaintiff’s pleading, it is not necessary that the pleadings should aver their existence in the precise language of the statute; it is sufficient if, from a reading of the complaint as a whole, it can be fairly deduced that the plaintiff has conformed to the requirements of the statute in the respect that Ms materials under his agreement with the defendant were to be furnished for the designated structure, and that such materials were actually used in the construction thereof.</p> <p>[4] Id.—Sufficiency of Complaint.—In this action for the foreclosure of a materialman’s lien, it is held that the allegations of the complaint are sufficient, in the absence of a special demurrer upon the ground of uncertainty, to enable a reasonable inference to be drawn that the materials in question were agreed to be furnished for, and were furnished for and were used in, the construction of the designated structures upon the premises of the defendant sought to be charged with the lien, especially as the claim of lien was attached to the complaint and expressly made a part thereof, in wMch these allegations were set forth.</p> <p>[5] Id.—Defects in Complaint—Cure by Answer.—In such a case, where the answer did not deny that the materials in question were furnished or that they were used in the construction of the premises in question, but merely denied that the plaintiff was the person who furnished the same, and alleged that another furnished them, whatever uncertainty existed in the complaint in these respects was waived by failure to enter a special demurrer and was also cured by the form of the answer.</p> <p>[6] Appeal—Judgment-roll—Sufficiency of Evidence.—On an appeal upon the judgment-roll alone no question can arise as to the sufficiency of the evidence to sustain the averments of the complaint and to justify the findings of the court.</p> <p>[7] Id.—Uncertainty in Findings — Resolving to Support Judgment.—Whatever uncertainties may exist in the findings of the court are to be resolved, if reasonably possible, to support the judgment rather than to defeat it.</p> <p>[8] Id.—Amount of Land Necessary.—Where the complaint alleged in such a case that the whole of defendant’s described premises were required for the convenient use and occupation of the buildings, which the answer admitted by failure to deny, and the findings expressly stated this fact, the contention to the contrary cannot be sustained on appeal.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Paul Overton, Samuel Poorman, Jr., S. W. Guthrie, Herbert J. Goudge, H. C. Beach and J. H. Powell for Appellant.</p> <p>Albert Lee Stephens, City Attorney, Charles S. Burnell, City Attorney, William B. Himrod, Lewis E. Whitehead, W. B. Mathews, Boy V. Reppy and Gibson, Dunn & Crutcher for Respondents.</p>

<p>[1] Sureties—Appeal Bond—Parties.—The position of a surety on an undertaking on appeal is similar to that of an ordinary surety on an obligation who has been regularly joined as a party defendant.</p> <p>[2] Id.—Payment op Judgment by Surety—Assignment—Bights op Surety—Satisfaction.—Although no judgment has been entered against a surety on an appeal bond, there is no reason why it may not anticipate such entry, pay the amount of the judgment, and take an assignment of it, instead of claiming the benefit of it under section 709 of the Code of Civil Procedure; and where this is done it is error for the trial court to hold that the judgment has thereby been satisfied.</p> <p>[3] Trusts — Validity op Declaration — Purpose.—A declaration of trust to the effect that a certain judgment assigned to the trustee is held by the latter in trust for a named party, or his assigns, sufficiently discloses the purpose of the trust, and is valid.</p> <p>[4] Appeal — Parties — Assignee op Judgment. — A preceding by motion, under section 675 of the Code of Civil Procedure, to obtain entry of' satisfaction of a judgment assigned to the surety on the appeal bond which paid the judgment and took an assignment of it, cannot be considered a special proceeding under section 23 of the Code of Civil Procedure, or as an independent action, but is a part of the original action; and the surety is entitled to maintain an appeal from an order of the trial court directing entry of satisfaction of the judgment.</p>

<p>APPEAL from an order of the Superior Court of the County of Alameda settling the account of a deceased administratrix. E. C. Robinson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Wills—Revocation—Presumption.—The presumption is that a will last seen and known to have been in the possession of the decedent, and which cannot be found after Ms death, has been destroyed by him with the intent of revoking it.</p> <p>[2] Id.—Later Will—Revival of Former Will.—A will is revoked by a later will containing an express revoking clause, and is not revived by the revocation of the later will, unless it appears by the terms of revocation of the later will that it was the testator’s intention to revive and give effect to- the first will.</p> <p>[3] Id.—Evidence—Proof of Revocation of Former by Later Will —Witnesses.—The due execution of a later will, which was either proved or presumed to have been destroyed animo revocandi, may be proved, so as to give effect to its revoking clause, by one witness; or, in other words, by the same amount and quality of evidence generally required and held sufficient for the proof of any fact under section 1844 of the Code of Civil Procedure.</p> <p>2. Destruction of revoking will as working revival of will revoked, notes, 76 Am. Dec. 652; 45 Am. Rep, 327; 4 Aim. Cas. 313; 13 Aun. Cas. 245; Ann. Cas. 1913E, 120; Ann. Cas. 1916E, 718.</p>

<p>[1] Condemnation of Land — Costs — Exemption — Constitutional Law—Abandonment of Suit.—The principle upon which a defendant in a condemnation suit is exempted from the payment of costs is that he is entitled, under the constitution, to the full value of his land without diminution by any costs reasonably incurred by him in good faith in the defense of the action; but this principle does not at all apply to a case where the plaintiff desires to abandon his suit and asks leave of the court to do so, whereupon -objection is made by the defendant and plaintiff is compelled to proceed to judgment and to obtain his leave to withdraw his suit by means of an appeal.</p> <p>1. Liability of land owner for costs on appeal in eminent domain proceedings, notes, Ann. Cas. 1912C, 533; Ann. Cas. 1916E, 692; Ann. Cas. 1917E, 262.</p>

<p>APPLICATION for a Writ of Habeas Corpus to procure the discharge of petitioner from custody of the sheriff.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law—Prisons—Escapes.—A person serving a sentence of imprisonment in a state prison is, in contemplation of law, a prisoner therein, as well when at work outside under the surveillance of prison guards as when confined within its walls, so that if he escapes when outside he escapes from a prison, within the meaning of section 787 of the Penal Code.</p>

<p>[1] Estate oe Deceased Person — Jurisdiction — Residence—Procedure.—The superior court of the county in which a petition for general letters of administration of the estate of a deceased person is first filed has jurisdiction to determine whether or not the residence is in that county, and persons who claim that the jurisdiction is in some other county must appear in that court, present their evidence, and have the fact as to residence determined, and if the decision is against them, they can appeal and have the matter settled by the court of last resort.</p> <p>[2] Id.—Remedies.—If a party, who claims that jurisdiction of the estate of a deceased person is not in the county where a petition for general letters of administration is first filed, has a will in his possession, he may either resist the granting of letters in the first county upon the ground that there is no jurisdiction there, without asking probate of the will, or, if he fails to show want of jurisdiction, he may then present his petition to that court to have the will probated in that county, whereupon that court will proceed accordingly to probate thereof.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Vendor's Lien — Homestead — Estate of Deceased Person — Presentation of Claim.—Under section 1475 of the Code of Civil Procedure a claimant under a vendor’s lien against a homestead of a deceased person must present his claim to the administrator of the estate of the decedent before he can foreclose his lien, and he cannot escape the requirements of that section on the ground that no person has applied for or received letters of administration upon the estate.</p> <p>[2] Id.—Liens.—A vendor’s right to resort to the land for payment of the purchase price thereof is a lien, and one of the objects of section 1475 of the ’Code of Civil Procedure is to protect a homestead from vendors’ liens, as well as other liens, and no sound distinction exists upon which to differentiate a vendor’s lien from any other lien on the premises embraced in the homestead.</p>

<p>[1] Eindings—Pleadings—Admissions.—When a trial is had by the court without a jury, a fact admitted by the pleadings should be treated as found.</p> <p>[2] Ejectment—Entry and Ouster—Mistake in Stipulation—Admissions of Pleading.—In an action in ejectment, a finding embodying a stipulation of fact that the date of ouster was after the commencement of the suit, which stipulation was apparently the result of a mistake in dictation or transcribing, is irrelevant and may be disregarded, where the answer and cross-complaint of the defendants admit the ouster to have been prior to the commencement of the suit.</p> <p>[3] Id. — Public Lands — United States. Beceiver’s Certificate — Title.—A United States receiver’s final certificate showing payment for government land is prima facie evidence of ownership, and is a "certificate of purchase,” within the meaning of section 1925 of the Code of Civil Procedure, and the owner of such certificate is in a position to initiate and maintain an action in ejectment.</p> <p>[4] Id.-—Bental Value—Stipulation-—Evidence.—Where the parties in such a ease entered into a stipulation with reference to the rental value of the land upon the first submission of the ease, after which the court intimated that the action should abate pending the termination of proceedings in the United States land office, which was several years before the date of the final trial, and the record does not disclose any understanding that the parties contemplated that no judgment would he entered on the first submission, or that the case would he reopened under changed conditions several years later and then he submitted on the same stipulation of facts without further agreement thereto, there was no error in taking testimony as to the rental value of the lands during the several years constituting the period of the ouster and in fixing and determining the damages according to such evidence.</p> <p>[5] Id. — Title — Pleading — Supplemental Complaint.—In such a case, where the equitable claim of the plaintiff to the land in litigation under the final receipt from tho receiver of the land -office ripened into full title, freed from all claim of the defendants, by reason of the successful termination of proceedings in the United States land office and her acquisition of the patent, after the commencement of the action, it was proper that she should submit such matters in confirmation of her title to the consideration of the court by means of a supplemental complaint.</p>

<p>APPLICATION for a Writ of Mandate directed to the Superior Court of Santa Clara County. J. R. Welch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandamus directed to the trustees of a city to compel the issuance of a new call for a special consolidation election.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Industrial Accident Commission awarding compensation for death.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus directed to the sheriff of Stanislaus County to secure release of petitioner from custody on a charge of violating a county prohibition ordinance.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[2] Id.—Eradication of Ground-squirrels—Jurisdiction of Board. Any attempted action on the part of the horticultural commissioner or his deputy in the way of inspection or eradication of ground-squirrels is premature and ineffectual until the board of supervisors of a county has exercised its discretion in determining which system and method of procedure shall be adopted and which set of officials the duty of inspection and extermination of these particular pests shall be intrusted to.</p> <p>[3] Id.—Pleading.—A complaint under the provisions of sections 2322 and 2322a of the Political Code for the purpose of establishing and enforcing a lien against the lands of the defendant is fatally defective where it does not contain an averment that the proceedings were preceded by any action on the part of the board of supervisors authorizing the horticultural commissioner or his deputy to initiate or take such proceedings.</p>

<p>[1] Workmen's Compensation Insurance—Employment in Violation op Law—Expenses—Nonliability op Insurance Carrier.— Where a minor is employed in violation of the provisions of a workmen’s compensation insurance policy, providing that no person shall he employed in violation of the law as to age, the employer cannot recover from his insurance carrier his expenses expended in defending himself before the Industrial Accident Commission.</p> <p>[2] Id.—Warranty.—A provision in a workmen’s compensation policy against employing a person in violation of the law as to age amounts to a warranty.</p> <p>[3] Id.—Repudiation op Liability by Carrier—Estoppel.—Where the insurance carrier under a workmen’s compensation policy, when an injured employee made his demand for compensation, promptly repudiated any liability under the policy and refused to defend the employer in a proceeding instituted before the Industrial Accident Commission, and in no way controlled or sought to direct his action, but confined its efforts solely to a protection of its interests, it was not thereby estopped to deny any liability for the expenses incurred by the employer in making an affirmative defense before the commission.</p> <p>1. Applicability and effect of workmen’s compensation acts in case of injuries to minors, note, 14 A. L. R. 818.</p> <p>[4] Id.—Violation of Policy by Employer—Payment of Award by ■Carrier—Reimbursement.—Where an employer, in plain disregard of the terms of a workmen’s compensation policy of insurance, employs a person in violation of the law as to age, and the carrier in no way consents thereto and is not estopped to deny its liability in so far as the employer is concerned, the carrier is entitled to recover from the employer the amount of an award by the Industrial Accident Commission paid by it.</p>

<p>APPLICATION for Certiorari to review an order of the Railroad Commission approving a certain contract for the sale of electric energy.</p>

<p>APPEAL from an order of the Superior Court of Alameda County granting a temporary injunction to prevent diversion of water. A. P. St. Sure, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

APPEALS from judgments of the Superior Court of Napa County. Henry C. Gesford, Judge. Judgment in S. F. No. 9559 affirmed; judgment in S. F. No. 9748 vacated, with direction for entry of judgment in accordance with opinion of Supreme Court. The facts are stated in the opinion of the court.

<p>[1] Estates of Deceased Persons—Accounts—Claim of Administratrix—Jurisdiction.—In a proceeding for the administration of the estate of a deceased person, the superior court has jurisdiction to determine that the administratrix has in her hands money of the estate which she has not accounted for and which she claims belongs to herself and not to the estate.</p> <p>[2] Id.—Final Account and Petition for Distribution—Hearing— Time.—The final account and petition for distribution in the estate of a deceased person may come on for hearing at the same time, at which the account should first be settled, and thereupon and without further delay the order of distribution may be made, without awaiting the expiration of the time for appeal from the order settling the account.</p>

<p>[1] Taxation —■ Choses in Action — Situs.—Mere choses in action for the purposes of taxation generally follow and attach to the domicile of the owner.</p> <p>[2] Id.—Exception to Rule.—The exception to the rule that mere choses in action for the purpose of taxation generally follow and attach to the domicile of the owner is where the possession and control of the property have been localized in some independent business or investment away from the owner’s domicile, so that its substantial use and value primarily attach to and become an asset of the outside business; in other words, while the nonresident may own the business, the business controls and utilizes in its own operation and maintenance the credits and income thereof.</p> <p>[3] Id.—Foreign Corporation—Agency in State—When Solvent Credits not Taxable.—Where a foreign corporation maintains an agency in this state which is not an independent business, nor an independent branch of the principal business, but a sales agency doing business through, for, and under the immediate control and management of the home office out of the state, orders being filled for the most part directly from the home factories and all contracts being taken in the name of the foreign concern and payable to its order, moneys collected through the agency being deposited to the credit of the home office and not held, paid out, invested, or reinvested by or for the local business, solvent credits arising in the local business are not taxable in this state.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law—Variance—Filing New Information—Time.—■ The provisions of section 1382 of the Penal Code, requiring an information charging a person with crime to be filed within thirty-days after the defendant has been held to answer by the committing magistrate, does not apply to a case where an information has been filed within the thirty days and the trial had thereon, and a new information is directed by the court because of an acquittal upon the trial of the original information on the ground of variance.</p> <p>[2] Id.—Variance—Filing New Information—Preliminary Examination.—Under the provisions of the Penal Code, a new preliminary examination is not necessary to authorize a new information curing a variance to be filed, when it is ordered in pursuance of section 1165 of the Penal Code.</p> <p>[3] In. — Erroneous Order for New Information—■'Validity of — Habeas Corpus.—The erroneous holding that there is a variance does not render a new information filed by reason of the variance void; the ruling would be one in the exercise of jurisdiction, advantage of which could be taken only by presenting the former acquittal as a former adjudication in defense of the new information, and cannot be made the ground for issuing a writ of habeas corpus.</p>

<p>[1] Criminal Law—Murder—Malice—Evidence.—In this prosecution for murder it is held that no error occurred on the trial which could have affected the sufficiency of proof of malice to justify the verdict.</p> <p>[2] Id. — Credibility of Witnesses — Statement of Court. — In a prosecution for murder a remark of the court, in overruling an objection to the competency of a witness for the defense who was asked to identify a certain signature from his familiarity with the handwriting of the alleged signer, that “Probably his opinion is as good as some of the experts we will get here,” cannot be said to have had a prejudicial effect on the jury, even though the defendant rested his case largely upon the opinion of experts, both prosecution and defense having introduced testimony of experts.</p> <p>[3] Id.—Notes op Autopsy Surgeon.—In such a case there was no prejudice, although error, in permitting the surgeon who held the autopsy on the deceased to testify from his notes and in refusing to allow defendant’s counsel to inspect the same and examine the witness regarding them before allowing their use as memoranda, where all the witness testified to from such notes was as to the location and nature of the wounds upon the person of the victim and there was no dispute that the wounds, wherever located, caused death.</p> <p>[4] Id.—Evidence.—Error in the admission of incompetent evidence of an uneontradicted and conceded fact cannot be held to justify a reversal on appeal.</p> <p>[5] Id.—Evidence—Caliber op Bullet.—There was no error in such a ease in allowing the autopsy surgeon to testify, without qualifying as to his competency, to the caliber of the bullet found in the wound of the deceased, where he had testified as to the caliber prior to the direct question and there was no objection or motion to strike out his former testimony and the fact was uneontradicted and susceptible of adverse proof, if any question existed.</p> <p>[6] Id.—Cross-examination — Sister op Deceased. — There was no prejudicial error in such a ease in not permitting counsel for defendant to pursue his cross-examination of the sister of the deceased, on account of her taking notes at the trial, to show her interest and bias in the case, or in a remark of the judge, “Why shouldn’t she have an interest in the case?”</p> <p>[7] Id.—Evidence—Cross-examination—Letters.—In such a case the introduction by the prosecution of a letter written by defendant did not justify the production on cross-examination of other correspondence not connected with the letter in evidence, although defendant had a right in his own case to call for and introduce other correspondence relative to the case.</p> <p>[8] Id.—Insanity—Evidence—Appearance op Eyes op Dependant. In such a ease it was not error to sustain an objection to a question on cross-examination of a witness for the prosecution, who was present at the shooting, as to whether he noticed the eyes of the defendant at that time and if they did not appear to him “as the eyes of an insane person,” and if there was not “something abnormal—something unusual about the eyes of this man” that particularly attracted his attention, the witness having been permitted to testify that the eyes were glazed and the pupils ' greatly dilated, but not being qualified to give an opinion as to the significance of these conditions.</p> <p>[9] Id.—Opinion op Witness as to Sanity—In such a case a witness who eoneededly did not qualify as an expert so as to justify admitting his opinion as to the sanity of the defendant upon a hypothetical statement of facts, and who had no intimate acquaintance with the defendant, was properly permitted to testify to all the facts relating to defendant’s appearance and actions while under his observation, but the court properly refused to allow him to give his opinion as to the defendant’s sanity.</p> <p>[10] Id.—Hypothetical Question—Adjournment to Prepare.—In such a case the court properly refused to take an adjournment of the trial in order to permit counsel for defendant to prepare a hypothetical question to propound to the experts on insanity, where such a question was framed and propounded by the defense and it is not shown wherein it was not sufficient, as no error will be presumed, even if the court abused its discretion, unless it appears that the defendant failed to get a full and satisfactory opinion from his witnesses in this respect.</p> <p>[11] Id.—Testimony as to Sanity—Impeachment.—In such a ease there was no prejudicial error in refusing to allow a witness for the prosecution to answer the question if he had not subsequently to his examination in chief stated to a party that the defendant might have been insane, where the witness had made a brief personal examination of the defendant three or four months after the shooting and after the trial had commenced, and testified that in his opinion at the time of said examination the defendant was sane, but at no time directly testified that defendant was sane at the time of the shooting, although he stated, upon his attention being called to certain facts introduced by the defense to prove insanity, that he did not see any evidence in the testimony that would lead him to believe that the defendant was insane, but upon cross-examination, upon a hypothetical state of facts in the case, he answered that the defendant “might have been insane according to that.”</p> <p>[12] Id.—Insanity—Irresistible Impulse ■—Instructions.—In such a case there was no error in giving an instruction on insanity predicated on the theory of “irresistible impulse,” that, “It has been urged on behalf of the defendant that it being impossible to assign any reason for the perpetration of the offense, he must have been acting under what is called a powerful and irresistible influence or homicidal tendency. But in that connection I charge you that the circumstances of an act being apparently motiveless is not a ground from which you can safely infer the existence of such an influence. Motives exist unknown and innumerable which might prompt the act. A morbid and restless (but irresistible) thirst for blood would itself be a motive urging such a deed for its own relief,” the objection being that although the instruction correctly states the law, it assumes the commission of the homicide by the defendant, and is based upon an unwarranted statement that defendant relied upon evidence that he acted under an irresistible influence or homicidal tendency, the jury being fully informed in other instructions as to the presumptions of innocence and the necessity of proof beyond a reasonable doubt of every element of the offense charged.</p> <p>9. General rule as to admissibility of nonexpert opinion as to sanity and mental capacity, note, 38 I». R. A. 721.</p> <p>12. Irresistible impulse as an excuse for crime, notes, Ann. Cas. 1912A, 36; Ann. Cas. 19170, 609; 18L.R.A. 224; 27 L.R.A. (N. S.) 461; L. R. A. 1918D, 794.</p>

APPEALS from an order of the Superior Court of the City and County of San Francisco directing the issuance of a Writ of Mandate and from an order denying a •motion to vacate an order directing the issuance of a Writ of Mandate. James M. Troutt, Judge. The facts are stated in the opinion of the court. George Lull, City Attorney, and Charles S. Peery, Assistant City Attorney, for Appellants.

<p>The facts are stated in the opinion of the court.</p>

<p>[1] School Law — Nonresident Students ot University — Tuition Fee.—The requirement that a student of the state university shall maintain a residence in the state of California for one year as an evidence of the dona fides of his intention to remain a permanent resident of the state and that he is not temporarily residing within the state for the mere purpose of securing advantages of the university, cannot be held to be an unreasonable exercise of discretion by the legislature or by the regents of the university, and is constitutional.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Attorney at Law—Exercise of ' Privilege—Good Moral Character—Power of Legislature.—While it may be admitted that ■the right or privilege of exercising the vocation of attorney and counselor at law is a valuable right or privilege, it must also be conceded that it is a right or privilege which the legislature had the power to bestow, or to empower the judicial department of the state government to bestow, upon such terms as would be consistent with the nature and purpose of the right or privilege to be exercised, and this being so, the legislature had the undoubted right to prescribe the possession of a good moral character in the applicant for the grant of the right or privilege of entering and of exercising the legal profession, and also, of necessity, to prescribe the continued possession of such good moral character in the individual receiving such grant.</p> <p>[2] Id.—Commission of Crime Involving Moral Turpitude—Disbarment—Power of Legislature.—The possession of a good moral character as a prerequisite to the receipt of and continued exercising of the right or privilege of engaging in the practice of the law is a matter of such paramount public interest as to entirely justify the legislature in prescribing that the commission of crime involving moral turpitude by one seeking to obtain this right or privilege or thereafter exercising it should constitute sufficient ground for its original denial or for its subsequent revocation.</p> <p>[3] Id.—Disbarment Without Notice—Constitutional Law.—An attorney at law after conviction of a crime involving moral' turpitude is not entitled to any further notice or process prior to the entry of an order of disbarment based upon the record of such conviction, which record is, by the express terms of subdivision 1 of section 287 of the Code of Civil Procedure, made conclusive evidence of the fact of the commission of such crime and of his conviction thereof, and an order thus made is not the deprivation of a property right without due process of law.</p> <p>1. Power of legislature to prescribe the qualifications of attorneys to practice law, notes, 10 Ann. Cas. 198; 10 L. R. A. (N. S.) 289.</p> <p>2. Power of courts to disbar attorneys and causes therefor, notes, 95 Am. Dec. 333; 42 Am. Rep. 557; 45 Am. St. Rep. 71; 8 Ann. Cas. 847.</p>

<p>[1] Certiorari—Scope of Inquiry.—The scope of inquiry upon a writ of review extends only to the question of the jurisdiction of the court which rendered the judgment sought to be reviewed.</p> <p>[2] Habeas Corpus — Scope of Inquiry. — The scope of inquiry on habeas corpus is precisely the same as that upon a writ of review, and it cannot go beyond the question of jurisdiction.</p> <p>[3] Contempt—Supplementary Proceedings—Validity of Judgment —Effect of Former Adjudication.—A president of a corporation adjudged guilty of contempt for failure to appear in obedience to an order of court before a referee in a proceeding supplementary to execution on a judgment against the corporation is concluded from, contending on habeas corpus that the contempt judgment is void because of the fact that prior to the beginning of the action against the corporation it had ceased to exist because of the forfeiture of its charter, where the same contention was made and adversely adjudicated in a previous proceeding to review the same judgment.</p> <p>[4] Supplementary Proceedings — Appointment of Referee •—• Construction of Code.—The provision of section 714 of the Code of Civil Procedure that in a proceeding supplementary to execution the judgment debtor cannot be required to attend before a judge or referee out of the county in which he resides or in which he has a place of business must be considered as an enlargement of the power of the court to appoint a referee, if section 640, which provides for the appointment of referees generally, may be considered as requiring the appointment of a referee residing in the county in which the cause is tried.</p> <p>[5] Id.—Examination in Another County.—In view of the fact that section 714 of the Code of Civil Procedure authorizes the court to appoint a referee in a supplementary proceeding, but does not authorize the party to be examined except in the county where he resides or has a place of business, it is necessarily implied that where the party resides in another county the examination may be held in that county, and that a referee may be appointed who resides in that county.</p> <p>[6] Id.—Eligibility of Referee. — The eligibility to appointment as referee of a person who is not a resident of the county in which the cause is tried is not a ground for habeas corpus, certiorari, or prohibition, but if it is material to any right of the party and is well taken, it must be presented on appeal.</p> <p>[7] Judgments — Attack by Successive Proceedings. — A judgment debtor cannot be allowed to present Ms reasons against the validity of the judgment against Mm piecemeal by successive proceedings for the same general purpose.</p>

<p>APPLICATION for a Writ of Habeas Corpus to discharge one charged with violating an act regulating the hours of drug clerks.</p> <p>The facts are stated in the opinion of the court.</p>