text:
    [L. A. No. 16376.
    In Bank.
    December 10, 1937.]
    RUSSELL O. JACKSON et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY et al., Respondents.

      Ilervey & Holt for Petitioners.
    Thomas Whelan, District Attorney, Frank T. Dunn, Assistant District Attorney, and Victor C. Winnek, Deputy District Attorney, for Respondents.
   CURTIS, J.

This cause was transferred to this court after decision by the District Court of Appeal of the Fourth District that we might give further consideration to the question raised by petitioners that they were placed in jeopardy at the first trial of said action when the jury impaneled and sworn to try the case against petitioners was dismissed without their consent and over their protest. The authorities are in unison that jeopardy attaches to a defendant when he is placed on trial before a court of competent jurisdiction upon a valid indictment or information before a jury duly impaneled and charged with his deliverance. At just what stage in the proceedings in a criminal action is the jury “charged with the deliverance” of the defendant on trial? Respondents contend that until the information is read to the jury and the plea of the defendant is stated, the jury is not charged with his deliverance. At the first trial of petitioners the jury was impaneled and sworn but before the indictment was read or the plea stated to the jury the prosecution moved the court to declare a mistrial and discharge the jury. As we have seen, the court granted this motion against the protest of the defendant. This question as to when jeopardy attaches to a defendant placed on trial in a criminal action is settled in so far as the courts of this state have spoken by the authorities cited in the opinion of the District Court of Appeal hereinafter set forth. These authorities hold that a jury stands charged with the deliverance of a defendant when its members have been impaneled and sworn. Respondents cite cases from other jurisdictions to the contrary, but they are not controlling in the face of the decisions of our own courts.

We are also in agreement with the District Court of Appeal in its holding that prohibition is available to petitioners to restrain the further trial of said action. The present action cannot in our opinion be distinguished from the case of Huntington v. Superior Court, 5 Cal. App. 288 [90 Pac. 141]. That case was followed and approved' in Oliver v. Superior Court, 92 Cal. App. 94, 97 [267 Pac. 764]. The rule announced therein must be deemed to be the settled law of this state. We find ourselves therefore in complete accord with the opinion and decision of the District Court of Appeal rendered in this action and written by Mr. Justice Marks, and we adopt said opinion as the opinion of this court. The opinion of the District Court of Appeal is as follows:

“In this original proceeding petitioners seek a writ of prohibition prohibiting the respondent court and judge from proceeding with their trial under an indictment of the grand jury of San Diego county. Petitioners maintain they have once been placed in jeopardy for the several offenses charged in the indictment.
“Respondents have both demurred to and answered the amended petition, and in the demurrer attack it on both special and general grounds,—uncertainty, failure to state facts sufficient to constitute a cause of action, and lack of jurisdiction. The question of jurisdiction is not pressed. There can be no doubt that this court possesses jurisdiction to entertain and decide a petition for a writ of prohibition.
“Various instances of uncertainty are alleged. The amended petition has attached to it, and made a part of it by reference, a copy of those portions of the reporter’s transcript material to this proceeding. This cures uncertainties appearing in the body of the amended petition, and also cures certain legal conclusions therein contained.
“Respondents urge that the writ should not be issued because petitioners possess a plain, speedy and adequate remedy at law whereby they may preserve the rights which they hope to protect in this proceeding. They maintain that the plea of former jeopardy is one which the petitioners may or may not enter, their action depending on themselves and their counsel; that if the trial court was in error in refusing their request to enter these pleas, and was in error in concluding that jeopardy had not attached, those questions might be raised on appeal if they should be convicted at their second trial, and would serve as a sure ground for reversal of the judgments which might be pronounced against them, which reversals would result in their discharge after the appeal had been decided. That the right to raise this ques-' tion on appeal is plain cannot be doubted. That it is either speedy or adequate is open to serious question.
“It was admitted in argument that the trial will consume several weeks. With such a voluminous record to prepare, considerable time would necessarily elapse before the appeal could be perfected and decided. In view of the considerable discretion vested in us in issuing these writs we are constrained to hold that while the remedy at law is plain it is neither speedy nor adequate under the facts before us and especially in view of the fact that in its final analysis the question before us is one of the jurisdiction of respondents to again place petitioners on trial for the offenses charged in the indictment found against them. (Menjou v. Superior Court, 128 Cal. App. 117 [16 Pac. (2d) 1007]; Huntington v. Superior Court, 5 Cal. App. 288 [90 Pac. 141]; Oliver v. Superior Court, 92 Cal. App. 94 [267 Pac. 764].)
“It follows that the demurrer should be overruled and the cause considered on its merits. This will require that we set forth a somewhat detailed statement of the facts which are not in dispute.
“Petitioners were indicted and charged with violations of the Corporate Securities Act. The legal sufficiency of the indictment and the jurisdiction of the trial court are not questioned.
“Petitioners were placed on trial and the court proceeded to impanel a jury. When ten peremptory challenges had been used by each side the trial judge required one of the defendants to exercise a peremptory before the People had used one. (See secs. 1088, 1070, 1098, Pen. Code.) No formal objection to this procedure was made and for a time thereafter peremptory challenges were exercised in that order. Then counsel for defendants (petitioners here) informed the trial judge that he believed this procedure erroneous and stated that he would ask for an added number of peremptory challenges over those allowed by law (sec. 1098, Pen. Code) equal to the number he had used after the erroneous order of exercising such challenges has been enforced. No other objection was made at any time. The trial judge had no occasion to pass on this request because a satisfactory jury was obtained and sworn before either party had exhausted their peremptory challenges.
“A second alleged error was committed while impaneling the jury. In San Diego county one jury panel is used for the several departments of the superior court. Part of this panel was in attendance in the department of the respondent judge and another part was serving in another department. Those jurors completed their services and returned to the department in which petitioners were on trial. Just at what stage of the proceedings this happened does not appear. When the names in the jury box had been exhausted counsel for defendants (petitioners here) informed the trial judge that eleven jurors on the regular panel were sitting in the courtroom and requested that their names be placed in the jury box, which was done and the trial jury was completed and sworn.

“At this stage in the proceedings the following occurred:

“ ‘MR. DUNN (Assistant District Attorney): If your Honor please, in regard to the impanelment of the jury, we have investigated the law and we find that in our opinion, and I think Counsel will agree, that there probably was error committed which was prejudicial in the rulings made by the Court relative to the exercising of the peremptory challenges. On behalf of the People and also on behalf of the defendants, for that reason we think the error committed is such that it would necessitate the Court in declaring this a mistrial.
“ ‘MR. HERYEY: If the Court please, we would want the record to show—are you moving for a mistrial at this time?
“ ‘MR. DUNN: Yes.
“ ‘MR. HERYEY: Let the record show that the defendants resist the motion.
“ ‘THE COURT: Well, it appears that the Court made or possibly may have made some error in the question of exercising the peremptory challenges—
“ ‘MR. HERYEY: Before your Honor completes his statement, may I say for the record, that our position may be made clear—on behalf of Russell 0. Jackson and on behalf of the defendant Frank A. Scott, we wish the record to show that the defendants are present in court prepared to proceed and object to a mistrial being declared. ’
“The trial court granted the motion, declared a mistrial, discharged the jury and continued the case to the following morning for retrial. Counsel for defendants (petitioners here) moved the trial court for permission to enter pleas of former jeopardy and former acquittal on behalf of both defendants (petitioners here). This motion was denied and this proceeding followed.

“Former jeopardy is thus defined in 8 Ruling Case Law, page 138:

“ ‘A person is in legal jeopardy when he is put on trial, before a court of competent jurisdiction, on an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance, and a jury is said to be thus charged when it is impaneled and sworn. The opinion prevails to some extent that jeopardy does not attach until a verdict is rendered. This doctrine, however, limits the term jeopardy to mean the same as autrefois acquit or convict. But the word means exposure to danger, and where a person is put on his trial on a charge of a crime before a jury sworn to decide the issue between the state and himself, he is then exposed to danger in that he is in peril of life or liberty. . . .
“ ‘Until the entire jury is selected and sworn jeopardy does not attach, so that a defendant is not entitled to discharge because of former jeopardy, if, on discovering the failure of one of the jurors to take the oath, the jury is resworn and the trial begun de novo. But as soon as a jury has been impaneled and sworn jeopardy attaches, and a dismissal of the case, when not authorized by law and without the consent of the defendant, after the jury has been sworn and the trial actually commenced is equivalent to an acquittal of the charge and will constitute former jeopardy on a subsequent trial on the same charge. The rule necessarily implies that the jury sworn shall be one properly constituted, and therefore a defendant is not in jeopardy where the jury selected and sworn is not a legal jury, as for instance where one of the jurors is an alien, and therefore the court may properly withdraw him and substitute a duly qualified person in his place. ’
“The substance of this definition has been approved by the courts of California with the exception of the last sentence which has only been declared by way of dicta. (See People v. Webb, 38 Cal. 467; People v. Cage, 48 Cal. 323 [17 Am. Rep. 436]; People v. Hunckeler, 48 Cal. 331; People v. Curtis, 76 Cal. 57 [17 Pac. 941]; People v. Ammerman, 118 Cal. 23 [50 Pac. 697]; People V. Hawkins, 127 Cal. 372 [59 Pac. 697]; People v. Stoll, 143 Cal. 689 [77 Pac. 818]; People v. Tong, 155 Cal. 579 [102 Pac. 263, 132 Am. St. Rep. 110, 24 L. R. A. (N. S.) 481]; People v. Nash, 15 Cal. App. 320 [114 Pac.. 784]; People v. Young, 100 Cal. App. 18 [279 Pac. 824].)

‘ ‘ In People v. Hawkins, supra, it was said:

“ ‘ It is well settled that the impaneling of the jury is part of a trial (Silcox v. Lang, 78 Cal. 118 [20 Pac. 297]); the legal jeopardy of the defendant has attached when a jury has been “charged with his deliverance”, and the jury stand's thus charged when its members have been impaneled and sworn. (Cooley’s Constitutional Limitations, 6th ed., 399.)’

“The case of People v. Young, supra, is so factually similar to the instant ease that it must be considered as controlling here. In that case a jury with two alternates were sworn. The district attorney made his opening statement to the jury. A juror reported that he was acquainted with a witness who was to be called for defendant. Over the objection of defendant the district attorney was permitted to exercise a peremptory challenge on this juror and one of the alternates was drawn and entered the jury box. Defendant was refused leave to enter the plea of former jeopardy. He was convicted and in reversing the judgment and ordering his discharge the court said:

“ ‘Jeopardy signifies the danger of conviction and punishment which one charged with a criminal offense incurs when duly .put upon trial before a court of competent jurisdiction, and a jury has been charged with his deliverance. (People v. Tong, 155 Cal. 579 [132 Am. St. Rep. 110, 24 L. R. A. (N. S.) 481, 102 Pac. 263].) A jury stands so charged when its members have been impaneled and sworn. (People v. Hawkins, 127 Cal. 372 [59 Pac. 697].) His jeopardy is real and he cannot be again subjected to jeopardy unless the jury be discharged without rendering a verdict, by his consent, or upon some legal necessity resulting from physical causes beyond the control of the court. (People v. Hunckeler, 48 Cal. 331, 334; Ex parte McLaughlin, 41 Cal. 211 [10 Am. Rep. 272].) If deprived of a verdict because an error of law would result in a mistrial, except as provided by statute therefor, the discharge is equivalent to an acquittal and is a bar to a subsequent trial. (People v. Tong, supra.) A defendant having been placed in jeopardy, it is a bar to another indictment or information for the same offense or for an attempt to commit it, or for an offense necessarily included therein, of which he might have been convicted' under the first indictment or information. (People v. Zeigler, 135 Cal. 462 [67 Pac. 754, 56 L. R. A. 882].) ’
“Respondents seek to avoid the results of these rules by pointing out the alleged errors in impaneling the jury, which we have mentioned, and by arguing that jeopardy cannot attach unless the proceedings leading up to the swearing of the jury be so free from error that a verdict of guilty, if one be returned, will not be upset on appeal. This seems to be the rule in some states, if not in California. There seems to be much common sense and much sound argument behind such a rule. It might well be asked, how can a defendant be in danger of being deprived of life or liberty if the jury which tries him cannot return a verdict under which he can be punished? However, from the view we take of the case that question is academic here. The errors in impaneling the jury, pointed out by respondents, are not sufficiently substantial to cause a reversal of a judgment if petitioners had been convicted. Further, those errors, if any, were waived by petitioners. That such errors may be waived, and thereby their prejudicial effect, if any, be destroyed, is well established. (People v. Baillie, 133 Cal. App. 508 [24 Pac. (2d) 528]; People v. Kelly, 132 Cal. App. 118 [22 Pac. (2d) 526].)
“ It is true that the code provides the order in which peremptory challenges should be exercised. It is also true that it has been held that a departure from such order must be shown to be prejudicial and that where the established order was departed from and a defendant accepted the jury before his peremptory challenges were exhausted he suffered no prejudice from the error. (People v. Troutman, 187 Cal. 313 [201 Pac. 928]. See People v. Durrant, 116 Cal. 179, at 197 [48 Pac. 75].) We conclude that the error in the order of peremptory challenges was not prejudicial and that it was waived.
“Respondents urge that the names of all the jurors from which the jury is to be drawn must be in the jury box from which the names of the prospective jurors are drawn. This statement is only true if subjected to several important exceptions. The exact procedure followed in the instant case was approved in the case of People v. Boomer, 13 Cal. App. 654 [110 Pac. 466], as authorized by the provisions of section 248 of the Code of Civil Procedure. Furthermore, the procedure followed here was upon the suggestion and at the request of counsel for petitioners. Any possible error was thereby waived. A defendant will not be permitted to lead a trial judge into unsubstantial error and then be heard to complain of it.
“ It is our conclusion that petitioners were placed on trial in a court of competent jurisdiction on an indictment property found and drawn, before a jury legally impaneled and sworn. It follows that under the rules prevailing in California jeopardy attached when the jury was sworn and that respondents have lost jurisdiction to try them again for the offenses of which they, in the eyes of the law, have been acquitted. ’ ’

It is ordered that the demurrer to the amended petition be overruled and that the writ of prohibition be issued as prayed for.

Langdon, J., Edmonds, J., Shenk, J., Waste, C. J., Houser, J., and Seawell, J., concurred.


source: Caselaw Access Project

author: SHENK, J EDMONDS, J., Concurring.

license: Public Domain

text:
    [S. F. No. 15342.
    In Bank.
    December 11, 1937.]
    COUNTY OF CONTRA COSTA (a Political Subdivision), Plaintiff and Appellant, v. AMERICAN TOLL BRIDGE COMPANY (a Corporation), Defendant and Appellant.

      Dunn, White & Aiken for Defendant and Appellant.
    Francis P. Healey, District Attorney, for Plaintiff and Appellant.
   SHENK, J

This is an action to recover two per cent of the gross tolls collected by the defendant from the operation of the Carquinez bridge from the date of its opening on May 22, 1927, to July 28, 1932. Judgment was entered for the plaintiff in the sum of $86,769. The defendant has appealed from the whole of the judgment and the plaintiff has filed a notice of appeal from a portion thereof.

By ordinance, effective March 19, 1923, the board of supervisors of Contra Costa County granted a franchise to the Rodeo-Vallejo Ferry Company, the predecessor of the defendant, to construct a bridge across the Straits of Carquinez and to maintain the same for twenty-five years from and after the effective date of the ordinance.

At the point where the bridge is constructed the Straits of Carquinez form the boundary line between the counties of Contra Costa and Solano. The application of the Rodeo-Vallejo Ferry Company, filed September 27, 1922, was appropriately addressed to the board of supervisors of Contra Costa County, being the county on the left bank descending the Sacramento River. (Sec. 2843, Pol. Code.) Thereafter proceedings were regularly had and taken before that board under the provisions of the Political Code (secs. 2843 et seq.), relating to the granting of authority to construct and maintain toll bridges. The franchise ordinance contains the following provision: ‘ ‘ That the license tax to be paid by the Rodeo-Vallejo Ferry Company, a corporation, its successors and assigns, for taking tolls on said bridge shall be One Hundred (100) Dollars per month, payable annually, commencing from the date of the operation of the bridge. That two (2%) per cent of the gross receipts derived from the use and operation of said bridge shall also and in addition be paid to the county of Contra Costa for the benefit of the counties of Contra Costa and Solano for the use of said franchise.”

The license tax of $100 per month has been paid as required by the ordinance, but the additional payment of two per cent of the gross tolls has not been paid. Notwithstanding its definite agreement to meet this charge the toll bridge company resists its enforcement on the ground that such requirement was beyond the power of the board of supervisors of Contra Costa County to include in the franchise as one of the obligations of the franchise holder.

The position of the defendant is that if the two per cent revenue be considered as a license tax it is invalid for the reason that subdivision 2 of section 2845 of the Political Code placed a limitation of $100 per month on any license tax to be required of the holder of a toll bridge franchise; and since the defendant’s franchise specifically provides for a license tax of $100 per month the power of the board of supervisors to impose such a charge was thereby exhausted. But the two per cent revenue is neither a license tax nor an ad valorem tax. When authorized to be collected it is in much the same category as the two per cent payments required in franchises granted under the Broughton Act (Stats. 1905, p. 777), which payments were held in County of Tulare v. City of Dinuba, 188 Cal. 664 [206 Pac. 983], to be neither a tax nor a license and not subject to the “in lieu” provisions of section 14 of article XIII of the Constitution later adopted, but were in the nature of compensation for the privilege granted.

The defendant nevertheless insists that nowhere in the law is there any authority in the board of supervisors to exact compensation for the granting of a franchise to construct and maintain a toll bridge across a body of water which forms the boundary line between two counties, and that since specific authority to that end is absent the challenged provision of the franchise ordinance in question is void.

The question of the powers of the board of supervisors in granting such a franchise was involved in Galvin v. Board of Supervisors, 195 Cal. 686, wherein this court said at pages 693 and 694 [235 Pac. 450] : “The powers of the board of supervisors with relation to the grant of franchises of this character are set forth in part 3, title 6, chapter 4, of the Political Code, and in the sections thereof between 2843 and 2881, inclusive, and also in subdivision 35 of section 4041 of said Code.” References to the same effect are found in Newsom v. Board of Supervisors, 205 Cal. 262 [270 Pac. 676].

At the time the defendant’s franchise was granted, in March, 1923, the general powers of boards of supervisors were defined in section 4041 of the Political Code. It was there provided: “Boards of Supervisors, in their respective counties shall have jurisdiction and power, under such limitations and restrictions as are provided by law ... 35. To grant licenses and franchises for the construction, keeping and taking of tolls on roads, bridges, ferries, wharves, streets, booms and piers, and to grant franchises along and over the public roads and highways for all lawful purposes, upon such terms and conditions and restrictions as in their judgment may be necessary and proper, and in such manner as to present the least possible obstruction and inconvenience to the traveling public. ’ ’

It is the contention of the plaintiff that the foregoing language of the code section which we have italicized was sufficient authority to enable the board of supervisors to insert in. the franchise the two per cent requirement, and that there are no legal limitations or restrictions on the authority thus granted. We fail to discover in the law any limitation or restriction on the power of the board to insert such requirement. Moreover, even in the absence of specific statutory authority, it has been held that the public body making the grant can prescribe terms and conditions in the granting and for the acceptance of a franchise. (City and County of Denver v. Stenger, 295 Fed. 809; 26 Cor. Jur. 1030.) One of these conditions may be the requirement of payment of money the amount of which may be fixed without regard to the cost of supervision or inspection. (19 R. C. L. 1153.) And when so required this condition becomes a part of the contract which the grantee has voluntarily assumed. (St. Louis v. Western Union Telegraph Co., 148 U. S. 92 [13 Sup. Ct. 485, 37 L. Ed. 380] ; 12 R. C. L. 193.) We are unable to draw the distinction urged by the defendant between a franchise to use a public street or highway for the purpose of revenue and a franchise to use a bridge which has public highway approaches and which from the time of its dedication to public travel became a public highway. (See Sears v. Tuolumne County, 132 Cal. 167 [64 Pac. 270].) In each case the grantee is enjoying a sovereign prerogative not otherwise exercisable.

The defendant, however, invokes the familiar rule of strict construction as applied to powers granted to subordinate governmental agencies, and great reliance is placed on the case of Gardella v. County of Amador, 164 Cal. 555 [129 Pac. 993]. That case is cited as holding in effect that the general powers of the board of supervisors, as outlined in subdivision 35 of section 4041 of the Political Code above referred to, have no application to the granting of franchises to construct and maintain toll bridges across waters separating two counties. It is true that in that case it was held that subdivision 33 of said section 4041 had no application to such bridges. But that subdivision did not purport to deal with the subject of the granting of franchises to take tolls on bridges. That subject was then covered by subdivision 32. (Stats. 1909, p. 131.) Subdivision 33 was limited to the granting of licenses and franchises to take tolls on “public roads or highways”. The holding in the Gardella ease is not questioned, but it is not controlling on the question of the proper construction to be placed on subdivision 35 as it stood in 1923.

Another ease strongly relied upon by the defendant is Pool v. Simmons, 134 Cal. 621 [66 Pac. 872, 873]. That case involved the question of whether a franchise to operate a ferry on the Sacramento River between the counties of Yolo and Sutter granted under sections 2843 et seq. of the Political Code, should have been awarded to the highest bidder in accordance with the provisions of “An act providing for the sale of railroad and other franchises in municipalities, and relative to granting franchises.” (Stats. 1893, p. 288.) It was held that the act of 1893 had no application to the granting of a ferry franchise and in the course of the opinion it was stated: “The whole policy of the law, as shown in the Political Code, is to allow franchises like this to be granted by the board to a suitable person, to subserve a public benefit, subject to rules and regulations, and that the license required to be paid, as fixed by the board, is to be full compensation to the counties, and to be divided between them.”

The foregoing language cannot be taken as an adjudication that the exaction of compensation for the use of such a franchise, in addition to the license tax, could not properly be authorized by a law of the state. The declaration is no more than a statement of the policy of the law as shown by the particular sections (2843 et seq.) of the Political Code then under consideration. The court did not assume to define the general powers of the board of supervisors under section 4041 of the Political Code. What was said concerning the policy of the law was not necessary to the disposition of the case and is not controlling when the precise point, as here made, is presented for decision.

In addition to the efficacy of the code sections in authorizing the board of supervisors to impose the condition of additional compensation, or, as in this case, to agree with the grantee that such additional compensation be paid, we take notice of an amendment to section 2872 of the Political Code in 1923, approved May 8th of that year. (Stats. 1923, p. 272.) That amendment added the following significant provision to the statute: “All licenses and franchises granted subsequent to the fourteenth day of March, A. D. one thousand eight hundred eighty one for the construction of any such bridges across the Sacramento or San Joaquin Rivers, the Suisun Bay, or Carquinez Straits, the Petaluma, Napa or Sonoma Creeks, whether above or below the head of navigation of said waters or streams, are hereby ratified, approved, confirmed and made valid for all purposes; . . . ”

It must be taken for granted that it is and has been, since the enactment of any legislation on the subject, within the power of the legislature to authorize the board of supervisors to require the payment of two per cent of the tolls annually collected by the holder of the franchise. It is also true as a general rule that whatever the legislature could have authorized the board of supervisors to do in the first instance it could thereafter ratify and confirm. {Cole v. City of Los Angeles, 180 Cal. 617 [182 Pac. 436]; Los Angeles City Water Co. v. City of Los Angeles, 88 Fed. 720; 18 Cal. Jur., p. 796.)

The defendant points out that the ratifying act of 1923 refers to specifically named navigable waters of this state and contends that as thus framed it is a special and local act prohibited by subdivision 33 of section 25 of article IV of the Constitution. It is argued that since the legislature could not have authorized by special act the board of supervisors to grant a franchise to construct the Carquinez bridge, it could not thereafter ratify the franchise by special act, citing Stange v. City of Dubugue, 62 Iowa, 303 [17 N. W. 518]. The act is claimed to be special because it operates only upon persons holding franchises granted between 1881 and 1923 for toll bridges over the enumerated waters, and to be local because it does not apply throughout the state, but only to the places designated.

The first acts of the legislature on the subject prohibited the construction of toll bridges over navigable waters. (Stats. 1854, p. 123; Stats. 1855, p. 182.) In 1863 boards of supervisors in their several counties were vested with control of toll bridges across streams that were not navigable. (Stats. 1863, p. 720.) In 1869 the legislature for the first time authorized the construction of bridges over navigable waters, but, with the specific prohibition against the licensing of “bridges across the Sacramento or San Joaquin Rivers, the Petaluma, Napa or Sonoma creeks, or San Francisco, San Pablo or Suisun bays”. (Stats. 1869-70, p. 887.) From the time of its enactment in 1872 until its amendment in 1923, section 2872 of the Political Code contained the following proviso: “provided, that the board of supervisors shall not have power to license bridges across the Sacramento or San Joaquin rivers, the SuiSun bay, or Carquinez straits, the Petaluma, Napa or Sonoma creeks, except at points above the head of navigation on said streams ’ ’.

This proviso was declared to be repealed by implication by the act of March 14, 1881 (Stats. 1881, p.' 76), which authorized boards of supervisors to do generally what was specifically prohibited by the proviso of 1872. (Chico Bridge Co. v. Sacramento Transp. Co., 123 Cal. 178 [55 Pac. 780].) It is contended by the plaintiff that the ratifying act of 1923 may be said to have encompassed every franchise to construct a bridge over the navigable streams and bodies of water mentioned in the proviso of 1872 which could have been granted lawfully prior to 1923, and therefore that the amendment of 1923 was uniform in its operation.

It is readily observed that whenever the legislature has directed its attention to the subject of toll bridges across navigable waters it has dealt with it by specifically mentioning the principal navigable streams and bodies of water in this state. Without further consideration it may not be said with certainty that in dealing with such an important local problem as the proper construction, maintenance and operation of a toll bridge across Carquinez Straits the legislature could not have done so by special act. The fact that the franchise in question was granted under the general act makes the question more difficult. However, it is deemed unnecessary to determine the question at this time for the reason that power in the board of supervisors under the general act appears -to have been sufficiently clear to justify the judgment of the trial court on that ground.

Certain it is that the legislature by its enactment in 1923 sought to do everything that could have been done by an act more general in terms, in order that the defendant’s franchise might be secure and its securities free from attack. It is asserted by counsel for the plaintiff and is not denied that the ratifying statute was passed at the instance and for the benefit of the holder of the franchise. This defendant as holder is not, for obvious reasons, taking the position that the board of supervisors was wholly lacking in power to grant the franchise in the first instance. Having obtained the advantages that have flowed from the grant the holder may not now with good grace, if at all, effectively resist the performance of an obligation thereunder which it voluntarily and lawfully agreed to undertake. (See Hershey v. Reclamation Dist. No. 108, 200 Cal. 550, 564 [254 Pac. 542]; Gregory v. Hecke, 73 Cal. App. 268, 284 [238 Pac. 787]; 12 Cor. Jur., p. 773.)

The plaintiff’s appeal from a portion of the judgment is not pressed. No briefs have been filed in support thereof. We are therefore not called upon to pass upon its merits. In its briefs as respondent the plaintiff has requested an affirmance of the judgment in toto. The order about to be made will dispose of both appeals.

The judgment is affirmed.

Waste, C. J., Curtis, J., Langdon, J., Houser, J., and Seawell, J., concurred.

EDMONDS, J., Concurring.

I concur in the judgment upon the ground that the toll bridge company, having accepted the benefits of the franchise granted by the ordinance of Contra Costa County and still continuing to do so, is estopped from challenging its provisions. The company cannot claim both under and against the enactment by which the franchise was created and now exists. It is a contract between the corporation and the county. “One cannot in the same proceeding both assail a statute and rely upon it,” (Hurley v. Commissioner of Fisheries, 257 U. S. 223 [42 Sup. C.t. 83, 66 L. Ed. 206 ]); nor can he claim under a franchise and at the same time repudiate some of its provisions. (Crittenden County v. McConnell, 237 Ky. 806 [36 S. W. (2d) 627].) The appellant acquired from the original grantee of the franchise the rights which it enjoys and cannot now question the validity of the challenged requirement. (State v. Portland General Elec. Co., 52 Or. 502 [95 Pac. 722, 98 Pac. 160].)

Rehearing denied.


author: NOURSE, J., pro tem.

text:
    [L. A. No. 14793.
    In Bank.
    December 16, 1937.]
    B. C. STOCKWELL et al., Respondents, v. B. D. McALVAY et al., Appellants.

      Harry M. Irwin and Andrew H. Rose, in pro. per., and D. H. Laubersheimer, Joseph L. Lewinson, Morris E. Cohn, John W. Preston and Preston & Preston for Appellants.
    Newby & Newby, Nathan Newby and Dee Holder for Respondents.
   NOURSE, J., pro tem.

Defendants have appealed from a judgment in favor of plaintiffs setting aside a sheriff’s sale of shares of Consumers Salt Company.

Plaintiffs V. E. Stockwell and B. C. Stockwell are husband and wife. Defendants Irwin and Rose are attorneys for defendant McAlvay. On June 18, 1925, McAlvay obtained a judgment, hereinafter referred to as the fraud judgment, against V. E. Stockwell in the sum of $16,000 based upon the fraud of the latter in the sale of real estate to Mc-Alvay. Prior to the entry of this judgment, but subsequent to the accrual of the cause of action therein and after a threat of suit had been made, Y. E. Stockwell conveyed his residence property to his wife, B. C. Stockwell, by deed of gift. In a separate action, a judgment was rendered on April 13, 1926, in which it was determined that this deed was “executed by said V. B. Stockwell with intent to delay and defraud his said creditor, said B. G. McAlvay’’. It was further determined that the title to the property was vested in the trustee in bankruptcy of V. B. Stockwell. Execution was issued on the fraud judgment, and on October 1, 1925, the sheriff levied upon 225,000 shares of stock of Consumers Salt Company, shown by the records of the company to be in the name of B. C. Stockwell. Consumers Salt Company made and delivered to the sheriff an answer in writing, signed by V. E. Stockwell as president and J. R. Riggins as secretary, to the effect that V. E. Stockwell did not own any interest in the shares so levied upon. The trial court found that on July 9, 1925, the shares were the property of V. E. Stock-well and that on that date he caused them to be transferred to B. C. Stockwell. The shares were sold by the sheriff to McAlvay on November 17, 1925, for the sum of $50.

No charge is made that the sale was not made in accordance with law. Between the date of the levy and the date of the sale, certain negotiations occurred between Attorney Rose for McAlvay and Attorney Newby for V. E. Stockwell. On October 22, 1925, V. E. Stockwell verified a petition to be filed in bankruptcy proceedings and appended thereto a list of his property, except the residence property and the 225,-000 shares levied upon. This petition was exhibited b3 Newby to Rose on October 28, 1925, with the assertion that V. E. Stockwell had stated that the list included all his property. Rose was informed that V. E. Stockwell did not wish to commence bankruptcy proceedings, but would do so unless the property listed was accepted by McAlvay in satisfaction of his judgment. Rose undertook to investigate the property listed and being satisfied that said property was of no value, ordered the sale to proceed. The day after the sale, the petition in bankruptcy was filed. On November 19, 1925, V. E. Stockwell was adjudged bankrupt, and on December 17, 1925, a trustee was appointed.

On November 27,1925, McAlvay commenced an action against Consumers Salt Co. and B. C. Stockwell under provisions of section 328 of the Civil Code, as it was then in force. Y. E. Stockwell is not bound by this judgment. He was not a party to the action and filed no pleading therein. While he appeared as a witness and testified in behalf of B. C. Stockwell, this alone is not enough to make the judgment binding upon him. On the first trial of this action, judgment was rendered against McAlvay, but his motion for new trial was granted. Upon the second trial, it was adjudged that B. 0. Stockwell had no interest in the shares and that they were the property of McAlvay. This judgment was affirmed on appeal. (McAlvay v. Consumers Salt Co., 112 Cal. App. 383 [297 Pac. 135].) In that action B. C. Stockwell filed a cross-complaint in which Rose and Irwin were made defendants and in which she alleged the fraud committed by appellants in the execution sale and sought to have the sale set aside. Appellants demurred to the cross-complaint and made a motion to strike parts of it. This motion was granted to such an extent that the question of fraud was eliminated. Since appellants prevented respondent’s attempt to have the present issues tried therein, appellants cannot now assert that the former action is a bar to this action. (Corona Investment Co. v. Riedman, 11 Cal. App. (2d) 648 [54 Pac. (2d) 85]; United Bank & Trust Co. v. Hunt, 1 Cal. (2d) 340 [34 Pac. (2d) 1001].)

The trial court found in substance that appellants Rose and Irwin falsely represented to Newby that they were investigating the value of the property listed in the bankruptcy petition; that appellants Rose and Irwin pretended to be negotiating a settlement for the purpose and with the intention of preventing V. E. Stockwell from filing his petition in bankruptcy until they could cause the shares of Consumers Salt Company to be sold; that by reason of their representation Newby was lulled into security and failed to file said petition in bankruptcy and to take action to prevent the sale; that the sale was made without any actual notice to Newby or Y. E. Stockwell; and that the reasonable value of the shares sold was $60,000. The evidence supports these findings and the judgment based thereon.

It is argued by appellants that McAlvay is not bound by the acts of his attorneys Rose and Irwin. However, it is clear that except for the fraud of Rose and Irwin the sheriff’s sale of the shares could have been prevented. Mc-Alvay received the shares so obtained and retained them after he had notice of the fraud. Under these circumstances, he cannot contend that he is not bound by the fraud of Rose and Irwin. (A. L. I., Restatement of the Law, Agency sec. 99 and cases cited in the California Annotations thereto.)

The evidence discloses that V. B. Stockwell attempted to place his property beyond the reach of his creditor Mc-Alvay. He conveyed the residence property to his wife. He caused the shares of Consumers Salt Company to be transferred to her. He verified a petition in bankruptcy in which he failed to list all his assets, and caused it to be offered to McAlvay with the veiled threat that if McAlvay did not accept the assets therein listed in satisfaction of the fraud judgment, he would cause the petition to be filed. Appellants argue that because V. E. Stockwell fraudulently attempted to prevent the satisfaction of the fraud judgment, the doctrine of clean hands applies, and respondents have no standing to seek relief against the fraud of McAlvay’s attorneys in attempting to obtain satisfaction of said judgment. However, this contention is without merit for two reasons. The trial court found that none of the acts above complained of were done with intent to defraud McAlvay and that appellants did not rely upon any of the declarations of V. E. Stockwell in which he disavowed ownership of the shares of Consumers Salt Company and were not misled by any of these transactions. There is a conflict in the evidence which, when considered with the presumption that private transactions have been fair and regular, amply supports these findings. (Code Civ. Proc., see. 1963, subd. 19.) The second and more persuasive reason is that appellants have not been injured by the acts complained of. Upon the execution sale, which respondents seek to set aside, Mc-Alvay purchased for $50 the shares herein involved. The trial court has found the reasonable value of these shares to be $60,000. On April 26, 1926, McAlvay presented to the trustee in bankruptcy of V. E. Stockwell his claim for the balance of the fraud judgment. In June, 1926, there was paid from the separate property of B. C. Stockwell the sum of $25,000 to the trustee in bankruptcy under a stipulation that the claims against Y. E. Stockwell should be paid in full and the assets held by the trustee transferred to B. C. Stockwell. This stipulation was performed. As a result of it, McAlvay’s claim was paid in full by the trustee in bankruptcy and the fraud judgment satisfied. Thus McAlvay has been paid in full and yet is seeking to retain shares worth $60,000 for which he paid only $50. Under these circumstances McAlvay has not been injured by the fraud of Y. E. Stockwell and V. E. Stockwell has been purged of his fraud. It follows that the doctrine of clean hands has no application in this. case. (McNair v. Benson, 63 Or. 66 [126 Pac. 20]; 4 A. L. R, pp. 44, 59; 21 C. J., p. 187, sec. 172.)

Appellants contend that the title to the shares vested in the trustee in bankruptcy of V. E. Stockwell, and therefore respondents have no interest in the shares sufficient to support this action. It is true that V. E. Stockwell did not list the shares as an asset with the trustee in bankruptcy. Where the bankrupt conceals or fails to list an asset with the trustee in bankruptcy, the bankrupt cannot, even after discharge, assert any right to the asset so concealed against a creditor of the bankrupt. (First Nat. Bank v. Lasater, 196 U. S. 115 [25 Sup. Ct. 206, 49 L. Ed. 408].) But if the bankrupt presents the asset to the trustee in bankruptcy and the trustee abandons or rejects the asset, the bankrupt may assert his rights in said asset against his creditors. (In re Webb, 54 Fed. (2d) 1065; In re Frazin, 183 Fed. 28 [33 L. R A. (N. S.) 745]; Dow v. Bradley, 110 Me. 249 [85 Atl. 896; 44 L. R A. (N. S.) 1041].) In this case the trial court found that in April, 1926, the respondents demanded of the trustee in bankruptcy of V. E. Stockwell that he assume the title of the shares of Consumers Salt Company, and that he refused to do so. The court further found that the trustee in bankruptcy rejected any right to any cause of action pertaining to said shares. The evidence discloses that respondents filed with the trustee in bankruptcy a petition for an order directing McAlvay to surrender the shares to the trustee in bankruptcy as an asset of V. E. Stockwell. In the petition, the facts surrounding the execution sale were alleged. The order sought was made, but the Federal District Court made its order canceling and annulling this order. Under these facts, the findings of the trial court are amply supported, and, since the trustee rejected the right to sue to set aside the execution sale and disclaimed any interest in the shares after full disclosure by the bankrupt, no title to the shares ever vested in the trustee in bankruptcy of V. E. Stockwell.

The original complaint in this action was filed on October 27, 1926. Nothing was done in the action until June of 1932. On June 3, 1932, and again on June 7, 1932, amendments to the complaint were filed, the latter amendment being the first in Avhich there was an allegation that V. B. StockAvell had any interest in the shares. Trial was commenced on June 6, 1932. Appellants argue that the amendment of June 7, 1932, does not relate back to the time of filing of the original complaint because the last amendment changed the status of the plaintiff V. E. Stockwell, and therefore the action was barred by the statute of limitations. It must be noted that there was no change in the cause of action by the last amendment. It remained an action to set aside the sheriff’s sale for fraud. It must be further emphasized that no substitution of a party is involved. At all times V. B. Stockwell was a party to this action and the sole effect of the amendment was to add a specific allegation that he had an interest in the shares. As Avas said in Doolittle v. McConnell, 178 Cal. 697, 701 [174 Pac. 305] : “Where there is no attempt to state a new cause of action in an amended complaint, but merely the addition of matters essential to make the original cause of action complete, the amendment, though made after the expiration of the period of limitation, relates back to the time of the commencement of the action.” There has been no change in the relief sought, and the situation presented in the original complaint does not differ essentially from that pleaded in the amended complaint. The mere fact that a new cause of action is pleaded does not prevent the relation back of the amendment to the time of the original complaint. (Cowell v. Snyder, 171 Cal. 291, 294 [152 Pac. 920].) It is only where the plaintiff seeks by amendment to recover upon a set of facts entirely unrelated to those pleaded in the original complaint.

Appellants make the further contention that respondents are barred by laches. In making this contention, it is apparent that appellants are not using the term laches in a technical sense, because it is clear that this action was commenced promptly after the sale. Appellants’ argument seems to be that because of the delay of six years prior to the amendment, respondents should be barred. However, in view of the practically continuous litigation between the parties and the fact that no evidence was taken before the amendment was made, no abuse of discretion by the trial court appears in the allowance of the amendment. (Mackroth v. Sladky, 27 Cal. App. 112 [148 Pac. 978].)

Part of the shares sold at the sheriff’s sale were transferred by MeAlvay to Irwin who in turn pledged the stock as security with one Henry Merton. The court adjudged that certificate No. 53 for 112,500 shares issued to and held by Henry Merton “be declared null and void” and Merton was commanded to deliver the certificate to the clerk of the court. Merton was not a party to the action and his rights as an innocent holder for value could not properly be adjudicated. Therefore, appellants argue that the judgment must be reversed. But Merton is in no way bound by this judgment, and therefore appellants, standing in the position of a pledgor gratuitously protecting his pledgee’s title, have no standing to object to this portion of the judgment.

For the reasons above given the judgment is affirmed.

Curtis, J., Seawell, J., Edmonds, J., Langdon, J., Waste, CL J., and Shenk, J., concurred.

Rehearing denied.


author: WASTE, C. J.

text:
    [L. A. No. 15982.
    In Bank.
    December 16, 1937.]
    EMPIRE WEST SIDE IRRIGATION DISTRICT et al., Appellants, v. STRATFORD IRRIGATION DISTRICT et al., Respondents.

      Clark Clement for Appellants.
    Harris, Willey, Griffith & Harris, Ronald B. Harris and Everett G. Harris for Respondents.
   WASTE, C. J.

This is an action for declaratory relief by which it is sought to have interpreted and made certain the provisions of a contract relative to the water and water rights represented by shares of stock in a mutual water company. From a decree construing the same favorably to the defendants, the plaintiffs have appealed.

It appears that in 1905 a corporation known as the Empire Investment Company, hereinafter referred to as the land company, was the owner of a large tract of land in Kings County, containing in excess of 18,000 acres and lying on both sides of the Kings River and riparian to it. As a riparian owner the land company possessed the right to its proportional share of the water of the river. In addition, the land company also owned 8% shares of stock in the Lemoore Canal and Irrigation Company, a mutual water company, which ownership entitled it to receive from that company a specified quantity of water for use on its lands. In order to facilitate a proposed subdivision and sale of the lands, the land company organized the defendant Empire Water Company and transferred to the latter its irrigation works and, without transferring its riparian right, authorized and empowered the water company as its agent to divert the riparian water to which it was entitled and supply the same to its lands, in accordance with the terms of a contemporaneously executed agreement, for an annual charge of one dollar an acre. The land company also transferred to the water company its 8% shares of stock in the Lemoore mutual water company, as agent or trustee, for the purpose of distributing the water represented thereby in accordance, likewise, with the provisions of the contemporaneously executed agreement.

The arrangement so outlined was made by a deed and written contract, bearing date of January 8, 1906, between the land company and the water company. It is expressly provided in the deed that it is not the intention to convey to the water company any riparian right, but that such right shall remain a part of and appurtenant to the lands. The contract recites that it is the desire of the parties to make a binding and permanent arrangement whereby the system for supplying the lands with water may be maintained, and water be delivered perpetually to all of the lands of the land company for use thereon by it and by persons succeeding to its title. Upon completion of this arrangement, the land company proceeded with its subdivision project and succeeded in selling substantially all of its lands. Reference was made in the sales contracts and deeds to th'e aforesaid contract between the land and water companies.

No question here arises as to the distribution of the riparian water among the numerous purchasers. The sole issue concerns the distribution of the so-called Lemoore water represented by the 8% shares of stock in the mutual water company. It is the contention of the plaintiffs and appellants, all of whom own portions of the original ranch lying on the west side of the Kings River, that said Lemoore water, like the riparian water, was intended to be, and is, distributable ratably to both west and east side owners. The defendants and respondents all of whom are east side owners, contend, on the other hand, that the Lemoore water, unlike the riparian water, was intended to be, and is, distributable exclusively to those lands lying on the east side of the Kings River. The solution of this controversy, obviously, turns upon a construction of the provisions of the 1906 contract between the land and water companies. As already stated, the trial court construed the same in accordance with the contention of the respondents, or east side owners.

In passing, it should be stated that this action is representative in character, the appellants and respondents representing, respectively, all west and east side owners. It should also be stated that other actions have been prosecuted from time to time in which various provisions of the deed and contract between the land and water companies have been, either directly or indirectly, brought before the courts for consideration. (Stratton v. Railroad Com.., 186 Cal. 119 [198 Pac. 1051]; Quist v. Empire Water Co., 204 Cal. 646 [269 Pac. 533]; Braley v. Empire Water Co., 130 Cal. App. 532 [20 Pac. (2d) 75].) None of such actions involved the precise point here presented and, therefore, any reference therein to the same was wholly unnecessary to the disposition of such actions and oloiter.

Respondents, however, refer us to the so-called Ferrasei proceeding instituted in 1913 before the railroad commission of this state by certain west side owners to have it determined that they, as well as east side owners, were entitled to share in the ratable distribution of the Lemoore water, here in dispute. That proceeding, involving the identical issue here presented, was directed against the water company but many east side owners intervened.

The commission, after hearing, ruled, as did the trial court herein, in favor of the east side owners who, as respondents upon this appeal, now cite said ruling, which failed to come under the scrutiny of the courts by way of writ of review or otherwise, as res judicata of the present controversy. Appellants contend, on many grounds, that the order of the railroad commission is not determinative or res judicata of the present controversy.

We find it unnecessary to pass upon the point for in our opinion, and contrary to appellants’ contention, the evidence herein is sufficient to support the finding of the trial court that it was the intention of the parties to the 1906 contract that the Lemoore water was to be used on and distributed to the east side lands to. the exclusion of the west side lands, other than when available to the latter as surplus or waste water. In so concluding, we are aware of appellants’ evidence to the effect that when they purchased their west side lands they did so in reliance upon representations that the Lemoore water, like the riparian water, was to be ratably distributed to the lands on either side of the river. However, and over against this evidence, there exists the very clause in the 1906 contract between the land and water companies, the indefiniteness in which gives rise to this action, to the effect that the Lemoore “water may be delivered and distributed through said system to a part of said lands for all or any of said purposes. ’ ’ While the agreement does not expressly declare to what part of the lands the Lemoore water is to be delivered, it does contain an additional clause to the effect that “it is understood that all of said lands cannot be supplied from any one canal, but that subdivisions thereof will be supplied only from the canal from which water can be carried by gravitation to such subdivisions, and that [the water company] is only required to deliver water by gravitation . . . ”• The record before us indicates, and the trial court found, in substance, that within the conception of the contract, the canals through which the Lemoore water will flow by gravity are all located on the east side of the river. This is also indicated in the petition, already referred to, filed by certain of the west side owners before the railroad commission in 1913 wherein it was alleged “that the Lemoore Canal and Irrigation Company’s canal and ditches and irrigation system, and all thereof, are situate on the East side of said Kings River”. In addition, the record indicates, and the court found, that the Lemoore water for many years has been used in irrigating lands on the east side of the river. This latter fact is also attested to by the unsuccessful 1913 effort of certain of the west side owners to procure from the railroad commission an order directing ratable distribution of Lemoore water to them. These attendant and surrounding circumstances, and the inferences deducible therefrom, may properly be considered in arriving at a conclusion as to the intent of the contracting land and water companies when, in their 1906 agreement, they provided that the Lemoore “water may- be delivered and distributed ... to a part of said lands . . . ”. They indicate that the east side lands are the “part of said lands” intended.

Moreover, there is before us the testimony of the engineer who laid out the canals for the land company wherein he stated that there are about 3,500 acres of east side lands that cannot be served with riparian water by gravity, thus leading to the construction in 1905-1906 of a series of laterals or canals to carry Lemoore water by gravity to said east side lands. This fact undoubtedly influenced the contracting parties in 1906 to provide that the Lemoore water may be distributed “to a part” of the lands and warrants the construction given to said contract and phrase by the court below, viz., that the “part” of the lands intended were situate on the east side of the river.

The ditch tender for the Lemoore canal company testified, among other things, that there are two distinctive canal systems on the Empire ranch; that they were distinctive in the sense of distributing distinctive sources of water supply (riparian and Lemoore); and that the canal system on the west side of the river, where appellants’ lands are located, indicates that it was not adapted for the distribution of Lemoore water. The court below made findings to this effect.

Other evidence might be referred to but we are of the view that sufficient has been said to indicate the propriety and reasonableness of the trial court’s construction of the 1906 contract in a manner to cause the Lemoore water to be distributable exclusively to east side lands, other than when available to west side lands as surplus or waste water. There is support in the evidence for the trial court’s award of surplus Lemoore water to the west side lands, which award, in our opinion, explains what the appellants refer to as an inconsistency in the findings.

In addition, we are satisfied that there is ample evidence to support the lower court’s finding that the appellants are chargeable with laches in the prosecution of the claim or asserted right relied on herein. As already stated, the contract between the land and water companies was executed January 8, 1906. The testimony of some of the appellants’ own witnesses indicates that since that time there has been a continual controversy between the west and east side landowners over the Lemoore water, the former making yearly demands therefor. One of the appellants’ witnesses testified that the east side landowners denied that the west side landowners had any right to the Lemoore water. This evidence, coupled with the inactivity of the west side landowners from the time of the order of the railroad commission in the Ferrasci case (1915) purporting to award said Lemoore water to the east side landowners, whether res judicata or not, discloses an inexcusable apathy and tardiness of the appellants in the prosecution of any claim or right they may have had under the 1906 contract, in and to the Lemoore water and supports the finding of laches made against them. It must be concluded that by the commencement of this action on December 21, 1934, the appellants were seeking to prosecute, at best, a stale claim.

The trial court found in favor of respondents on other defenses advanced by them. In view of the conclusions already announced, it is unnecessary to consider or pass upon such other defenses urged by the respondents and the findings thereon, including the defense and finding that the order of the railroad commission in the Ferrasci proceeding is res judicata of the present controversy. The findings on said defenses may be disregarded as surplusage. (Baird v. Ocequeda, 8 Cal. (2d) 700 [67 Pac. (2d) 1055]; Epstein v. Gradowitz, 76 Cal. App. 29, 31 [243 Pac. 877].)

We cannot agree that an estoppel exists against the respondents by reason of their inactivity during the construction by the appellants of a siphon intended, reputedly, to carry Lemoore water. The trial court properly found that said siphon was constructed on a right of way belonging to the appellants; that no invasion of any rights of respondents resulted therefrom; that no cause of action arose thereby to the respondents; and that none of the Lemoore water was at any time transported through said siphon.

Other points not herein mentioned present nothing of merit.

The judgment is affirmed.

Shenk, J., Langdon, J., Edmonds, J., and Seawell, J., concurred.


author: THE COURT.

text:
    [L. A. No. 16239.
    In Bank.
    December 16, 1937.]
    THOMAS MacLEOD, Respondent, v. FOX WEST COAST THEATRES CORPORATION (a Corporation) et al., Appellants.

      Loeb, Walker & Loeb, Charles A. Buckley, Albert W. Leeds, John B. Bertero and Herman F. Selvin for Appellants.
    Sparling & Teel for Respondent.
   THE COURT.

The facts that are decisive of the instant case in substance appear to be that the defendant Fox West Coast Theatres had agreed with Charles Chaplin Film Corporation to the effect that for the purpose of testing the ‘ ‘ sound track” and of correcting any slight imperfections which might be detected in a “film” which theretofore had been produced by the latter, it would be “run through” at a theatre that was owned and operated by the former. By Fox West Coast Theatres it was deemed advisable, and was so stated by it to Charles Chaplin Film Corporation, that the persons who would be permitted to witness such “preshowing” would be limited to representatives of the press, and to one hundred employees of Charles Chaplin Film Corporation. Notwithstanding such direction on the part of the owner of the theatre, but in conscious disregard thereof, the publicity representative of Charles Chaplin Film Corporation, who had been told by her superior officer of that corporation “to use her own judgment” with respect to the persons who should be invited to witness the “preshowing”, at the request of one who was a radio announcer for a rival motion picture producer, extended an invitation to witness said “preshowing” not only to him, to his wife and to the plaintiff, but also to a young' woman who had been invited by plaintiff to accompany him;—none of whom was within either of the classes of persons which theretofore had been designated as proposed invitees by the defendant corporation. In addition to the direct understanding of the parties regarding the limitation which thus had been placed upon the personnel of those who were to be invited on the occasion, for the purpose of checking the several invitees and of preventing uninvited persons from entering the theatre, it was also agreed that on the evening when the “film” was to be “run through”, defendant Sargent, who was the district manager of the defendant corporation, and the publicity representative of the Charles Chaplin Film Corporation would be at the entrance to the theatre where the “preshowing” was to take place. That part of the agreement was substantially executed. However, when at the appointed time plaintiff arrived at and within the “forecourt” of the theatre he was recognized by defendant Sargent and within a short time thereafter, on each of three separate occasions, emphatically was told by Sargent in effect that he would not be permitted to enter the theatre. After some conversation had occurred between the radio announcer and the publicity representative of Charles Chaplin Film Corporation, and the consequent admission of the former into the lobby of the theatre, on plaintiff’s representation to Sargent that he wished to see the radio announcer in order that he might inform him of plaintiff’s inability to witness the “preshowing” of the “film”, plaintiff was accorded leave to enter the lobby of the theatre for that purpose. According to plaintiff’s testimony, after he had thus entered the lobby of the theatre and had been therein “a second or a few minutes” (or, as testified by others, from five to ten minutes), acting under the direct order of defendant Sargent, two police officers approached plaintiff and “by the arm . . . escorted” him from the lobby of the theatre to a position in the “forecourt” thereof,— a distance of approximately thirty feet. Although in being thus ejected plaintiff suffered therefrom no asserted physical violence, yet without giving any details in connection therewith, plaintiff complained that the police officers had been “too rough”. In the course of two weeks next ensuing, plaintiff commenced the instant action, and shortly thereafter he was discharged from his employment, for the reason as given by his employer that it had been “embarrassed . . . because of this suit and the occurrence at the Chinese Theatre”.

From the record herein, it appears that on the trial of the action, in answer to certain "special interrogatories that had been submitted to it, the jury found not only that the removal of plaintiff from the lobby of the theatre was not “justified”, but also that by reason of such ejectment plaintiff had sustained damage in the sum of $1,000; furthermore, that the discharge of plaintiff from his employment was a “proximate result of his ejectment”, for and on account of which his damages were fixed at $4,000. From the ensuing judgment the defendants have prosecuted the instant appeal.

The foundational question in the cause, and the one that is determinative of the appeal herein is whether in the premises any actionable tort was committed by the defendant. In California Jurisprudence, volume 24, page 590, it is said, “In order to constitute an actionable tort there must be a legal duty imposed by statute or otherwise owing by the defendant to the one injured.”

At the outset, it should be remembered that Fox West Coast Theatres was the owner of the theatre and that at any showing of a motion picture therein to which the public was not invited, in the absence of any release or qualification of its rights in that regard, the said defendant alone had the exclusive right to determine who should be permitted to attend.

It is manifest that to the defendant Fox West Coast Theatres, as the owner and operator of a theatre at which the “film” was subsequently to be shown to the public, it was a matter of some financial importance that the audience at the “preshowing” be limited; but in the instant matter it conclusively appears that said defendant in part had surrendered its exclusive right so to decide, in that it had been agreed by it and Charles Chaplin Film Corporation that the audience would be limited to two designated classes of persons, to wit, members of the press and employees of the Charles Chaplin Film Corporation. Unquestionably, plaintiff could not qualify as a member of either of such classes; so that in line with the understanding of the parties to the agreement, in nowise was plaintiff entitled to admission to the theatre. Clearly if admitted at all, his admission into the theatre would have had to depend upon some understanding between the parties to the agreement other than that which originally was contemplated and agreed upon by them. In other words, in the first place Pox West Coast Theatres was in complete control. It surrendered a limited, restricted right to another which in its exercise was to be supervised jointly by an agent of the respective parties to the agreement. It would seem incontrovertible that the person to whom the restricted right was given had no power to enlarge it, or in anywise to encroach upon the absolute remaining right that was possessed by the owner of the property. Por example, if in addition to the agreement that actually was made with respect to the individuals who were to be invited, the parties thereto had stipulated that members of the white race only were to be admitted to the “preshowing” it would seem unlikely that anyone would contend that Charles Chaplin Film Corporation properly might disregard that element of the contract and as a result legally fill the theatre with persons who were members of a race other than the white race. Prom such a standpoint it would follow that even though plaintiff might have shown that as far as Charles Chaplin Film Corporation was concerned he had been an invited guest, nevertheless since plaintiff’s invitation was in excess of the authority of the Charles Chaplin Film Corporation, plaintiff’s position with reference to being entitled to admission into the theatre was that of one who had not been properly invited thereto, but that in legal effect he was a trespasser on the premises. One who is on the land of others without their consent and against their will, is a “trespasser”. (Brawn v. Boston & M. R. R., 73 N. H. 568 [64 Atl. 194].) Also, “Every wrongful entry upon land in the occupation or possession of the owner constitutes a trespass . . . ”. (Triscony v. Brandenstein, 66 Cal. 514 [6 Pac. 384].)

However, plaintiff contends that the “preshowing” was a “joint venture” of Pox West Coast Theatres and Charles Chaplin Film Corporation, and that as a consequence the parties thereto had equal rights with respect to the matter of issuing invitations. But even assuming (without so deciding), that such was the situation of the parties, it does not follow that plaintiff had any legal right to complain of the treatment that he received. Ordinarily it may be a correct statement of the law that with respect to transactions that are within the scope of a partnership business, one of the partners therein is fully authorized to bind the partnership. (Civ. Code, sec. 2403, subd. 1.) But assuming that that principle of law is applicable herein, it also is indisputable that either partner possesses authority to revoke or to cancel any executory contract, or transaction that legally might be revoked or canceled by the partnership. “When reasonably necessary or proper in the conduct of the firm business, as it is ordinarily conducted, a partner may modify or rescind a firm contract already made; ...” (47 C. J., p. 847; see, also, Bradbury v. McLendon, 119 Miss. 210 [80 So. 633]; MacCaulay v. Palmer, 125 N. Y. 742 [26 N. E. 912]; Harper et al. v. McKinnis, 53 Ohio St. 434 [42 N. E. 251]; Shillito v. Sampson, 61 Iowa, 40 [15 N. W. 572].) In Story on Partnership (Gray’s Ed.), page 205, it is said: “ . . . one partner alone may release, or even compound, or compromise a partnership debt. ... A release by one partner certainly binds all the partners ...” And also, in Bates, Law of Partnership, volume I, section 409, the following statement is found: “A partner can give notice of abandonment for the firm, and can consent to the cancellation of a policy of insurance and bind his co-partner thereby . . . ” (Hillock v. Traders Ins. Co., 54 Mich. 531 [20 N. W. 571].)

It follows that even though it be conceded that on the invitation of one of the parties to the “joint venture” plaintiff lawfully was within the lobby of the theatre, it equally was within the power of the other partner to the “joint venture” at any time to revoke the right or license of plaintiff to be within the said lobby and to order -him to be removed therefrom. And since from the record herein, it affirmatively appears that in ejecting plaintiff from the theatre neither excessive force, nor more force than reasonably was necessary was exerted, it follows that plaintiff had no cause of action against the defendants herein or either of them. In the case of Nakashima v. Takase, 8 Cal. App. (2d) 35, 39 [46 Pac. (2d) 1020], it is said: “The timeworn rule of torts is that a person has a right to use all such force as is reasonably necessary to protect his person or property. Bigelow on Torts, 8th Ed., p. 153.” Also in the case of Phelps v. Arnold, 112 Cal. App. 518, 522 [297 Pac. 31], wherein this rule is discussed, it is said: “ ... in the case of Walker v. Chanslor, 153 Cal. 118 [126 Am. St. Rep. 61, 17 L. R. A. (N. S.) 455, 94 Pac. 606], . . . many of the authorities, ancient and modern, are therein collated. The rule therein announced is the common-law rule that an owner has the right to forcibly eject trespassers and if the force used is not excessive, the trespasser has no personal action against the owner. The correctness of the ruling has never been questioned and now stands as the accepted law of this jurisdiction. ...” (Townsend v. Briggs, 99 Cal. 481 [34 Pac. 116]; Burnham v. Stone, 101 Cal. 164 [35 Pac. 627].)

It becomes unnecessary to discuss either of the several other points that have been presented by the respective parties to the appeal.

The judgment is reversed.


author: SHENK, J.

text:
    [L. A. No. 15933.
    In Bank.
    December 20, 1937.]
    In the Matter of the Estate of ALICE B. STRONG, Deceased. HATTIE STRONG, Executrix, etc., Appellant, v. GEORGIA LACEY BURNS et al., Respondents.

      Le Compte Davis and MacDonald & Thompson for Appellant.
    Bradner & Weil and Jerold E. Weil for Respondents.
   SHENK, J.

Strong, as executrix of the last will and testament of Alice B. Strong, deceased, filed her second account and petition for distribution of the entire estate of the decedent with the exception of sufficient funds to pay-balances due on account of inheritance and estate taxes, attorneys’ fees, and commissions. The court entered its decree of final distribution. This decree provided that Alice L. Lacey, one of the legatees, should be reimbursed for the inheritance tax of $103.71 on the contingent remainder devised to her, which amount had been deducted by the executrix from her cash legacy. The court also decreed that Georgia Lacey Burns was entitled to payment of a legacy of $5,000 provided by clause seven of the will, and designated certain properties out of which said legacy should bo paid. From these two specified portions of the decree of distribution “Hattie Strong, executrix of the estate of Alice B. Strong”, has appealed.

Hattie Strong is a surviving sister of the decedent and the residuary legatee under her will. The respondents urge that Hattie Strong, as executrix, is not a proper party to appeal from the decree of distribution. (Estate of Murphy, 145 Cal. 464, 467 [78 Pac. 960]; Estate of Babb, 200 Cal. 252, 255 [252 Pac. 1039].)

We may assume that if, as such executrix, Hattie Strong had appealed, her appeal should be dismissed. But the notice of appeal does not necessarily preclude the propriety of considering the appeal as having been taken by her as an individual. The notice merely appends opposite her name a designation which indicates that she is the executrix, but it does not necessarily state that she prosecutes such appeal as executrix. Such designation may be considered as mere descriptio personae (Burling v. Thompkins, 77 Cal. 257 [19 Pac. 429]; Scott v. Remley, 119 Cal. App. 384, 386 [6 Pac. (2d) 536]; 47 Cor. Jur., p. 177), and will not defeat the appeal if it may be prosecuted by the appellant in her individual capacity. The appeal may therefore be considered to have been taken by her in that capacity.

Alice B. Strong died on February 19, 1933. By her will she left the sum of $5,000 to Alice L. Lacey. In connection with the portion of the decree appealed from directing that Alice L. Lacey be reimbursed in the sum of $103.71 deducted from her cash legacy, it is pertinent to consider the provisions of clause ten of the will. By that clause the testatrix devised a certain described parcel of real property to a trustee to pay the income therefrom to Hattie Strong in her lifetime. The trust was to terminate upon her death and the trust property distributed to the living issue of Hattie Strong, and if there were none, then one-half thereof to go to Helen McOreery, and the other half share and share alike to certain named persons including Anna Carlat, Catherine Carlat, Alice L. Lacey and Georgia Lacey Burns, or the survivors of them. The decree provided that “the inheritance taxes on the contingent interests of Helen McCreery, Alice L. Lacey, Georgia Lacey Burns, Anna Carlat and Catherine Carlat under clause ten of the will should be paid by the executrix out of the corpus of the hereinafter described property devised and bequeathed in trust under clause ten of the will, and should not be collected by the executrix from the said contingent beneficiaries; that said Alice L. Lacey should be reimbursed for the amount of said tax on the contingent interest of Alice L. Lacey heretofore deducted from the cash legacy of Alice L. Lacey and paid to the State of California in the amount of $103.71. ’ ’ It should be noted that Hattie Strong appealed only from that portion of the foregoing order following the semicolon to the end of the quotation. If she is content with the payment out of the trust property of the inheritance taxes on the contingent interests other than that of Alice L. Lacey, she should not be heard to complain of the payment from the same source of the amount assessed against the portion of the contingent remainder devised to Alice L. Lacey. However, the direction to pay the taxes from the trust property is in accordance with subdivision (3) of section 8 of the Inheritance Tax Act (Stats. 1921, p. 1500, as amended by Stats. 1929, p. 1834) in effect at the time of the death of the testatrix. By that section and subdivision the tax imposed on the interests or estates which are dependent upon contingencies whereby they may be defeated are payable forthwith by the executors or trustees out of the property transferred, namely, in this case the property distributed to the trustee under clause ten of the will. The court was therefore not in error in ordering that Alice L. Lacey be reimbursed for the amount of the tax on the contingent interest deducted from the cash legacy bequeathed to her. The provisions of subdivision 1 of section 9 of that act, relied upon by the appellant, are in harmony with this conclusion and do not compel a different holding.

Clause seven of the will provided: “If, after paying all my just debts, funeral expenses and costs of administration of my estate and after the distribution of the personal property hereinbefore bequeathed, there still remain notes and mortgages or other interest bearing securities in an amount equal to or in excess of” $5,000, that sum should be transferred to a trustee to "pay the income therefrom to Georgia Lacey, now Georgia Lacey Burns, until she attain the age of twenty-five years, and then to pay to her the principal sum; but “that in the event the amount of such securities so remaining does not exceed” $5,000 the trust should be void and of no effect. At the time of the decree of distribution Georgia Lacey Burns had passed her twenty-fifth year.

The court found that at the time of her death the testatrix was the owner of eleven secured notes, having an aggregate face value of $50,662.50, and an aggregate appraised value of $44,162.50. Since the commencement of her administration as executrix of the will, Hattie Strong had caused foreclosure proceedings to be prosecuted as to all except two of said securities. Pursuant to foreclosure sales the estate became the owner of the real property which had served as the security for the payment of the notes, and such parcels were still a part of the estate at the time the decree herein was entered. The total appraised value of the two remaining secured notes did not exceed $2,100, which was also their aggregate face value. The appraised value of the real property derived from the foreclosure proceedings, plus the two remaining secured notes, after payment of all debts, funeral expenses, costs of administration, taxes and attorney’s fees, was $41,100, subject to encumbrances of $6,250 placed against two of said parcels of real property. Sufficient therefore remains after payment of debts, administration expenses and personal property bequests, without reference to the present character of the property, to pay the legacy to Georgia Lacey Burns. The court found that it was the intention of the testatrix that Georgia Lacey Burns should not be deprived of the legacy provided in clause seven of the will by reason of the foreclosure proceedings mentioned; but it was her intention, that except only as the securities may be reduced below $5,000 by the payment of debts, funeral expenses and costs of administration, Georgia Lacey Burns should receive the legacy provided by said clause, regardless of whether the securities should be converted to the form of real property at the time of distribution.

The appellant objects to the portion of the decree based upon the foregoing findings and ordering distribution to Georgia Lacey Burns of the $5,000 legacy from enumerated parcels of property in the converted as well as from those in the original form. The appellant contends that the will is to be read as though it stated that if, at the time of distribution, there does not remain in the estate sufficient secured notes to be applied to the payment of the legacy to Georgia Lacey Burns, the legacy as to her is defeated. But such an interpretation of clause seven of the will is neither necessary nor permissible. The testatrix expressly made the legacy operative out of the designated properties remaining after payment of debts, funeral expenses and costs of administration, and distribution of certain personal bequests. She provided that in the event the amount of securities so remaining did not exceed $5,000, the legacy should be void. She did not say, nor can we discern from anything stated in the will that she intended the legacy to be payable from such property remaining after payment of the charges specified and any foreclosure proceedings. It is quite apparent that she intended the legacy to be effective if there was sufficient property remaining from the original source after payment of debts and the other specified charges. It is well recognized that a sale of real estate in administration proceedings will not, for purposes of distribution, effect a conversion of the proceeds therefrom into personal property. {Estate of Hills, 176 Cal. 232 [168 Pac. 20]; Estate of Gracey, 200 Cal. 482 [253 Pac. 921].) The converse of this proposition should likewise be true and make the rule applicable in the present case to prevent the foreclosures of the securities during administration from changing the form of the securities so as to defeat the obvious intent of the testatrix. It is true, as found by the court, that the foreclosure proceedings were initiated after defaults had occurred; but it was also found that not all of said foreclosures were necessary in the interest of fhe estate and that some of them were had at an actual loss to the estate. It is to be assumed also that the testatrix intended that the disposition of the securities should include the power to enforce their collection. (Estate of McLaughlin, 97 Cal. App. 485, 489 [275 Pac. 875]; 69 Cor. Jur., p. 398.)

The decree is affirmed.

Curtis, J., Edmonds, J., Langdon, J., Waste, C. J., and Seawell, J., concurred.


text:
    [L. A. No. 16080.
    In Bank.
    December 20, 1937.]
    In the Matter of the Estate of JOHN D. MARTENS, Deceased. PEARL E. TRAIN, Appellant, v. HENRY E. SHERER, Respondent.

      Marshall & Farnham for Appellant.
    Ben A. Hill for Respondent.
   WASTE, C. J.

The decedent, John D. Martens, executed a last will and testament dated October 17, 1929, by which he devised and bequeathed his entire estate to his son and daughter in equal parts. Paragraph 5 of the will, relating to the appointment of an executor, read: “Fifth: I hereby appoint and nominate Sylvester Rocco of San Pedro, California, as Executor of this my Last Will and Testament, and in the event he cannot or does not act as such executor, then and in that event, I nominate Henry E. Sherer of San Pedro, California, as executor in his place and stead. ’ ’

The will was placed in the custody of a bank in San Pedro, with which institution Rocco and Sherer were associated, and there remained until some time in March, 1933, when the testator secured it. It thereafter remained in his possession. The evidence, beyond dispute, shows that on May 10, 1933, Martens, in the presence of his daughter, Pearl E. Train, and her husband and son, requested the husband to draw a line by means of a typewriter through the words in Paragraph Fifth “Sylvester Rocco of San Pedro” and “in the event he cannot or does not act as such executor, then and in that event, I nominate Henry E. Sherer of San Pedro, California, as executor in his place and stead”. After some general conversation at this time as to who should be named as executor, Martens requested that the names “Pearl E. Train and Arthur R Martens”, his daughter and son, respectively, be inserted in paragraph 5. The testator then directed the husband of Mrs. Train to write at the bottom of the will the following: “Article No. 5 above was changed by myself on this ten day of May, 1933.” Martens then signed his name to the memorandum written by Train, and Train witnessed his signature.

On Martens’ death, the daughter and son filed their petition for probate of the will and for their appointment as executors thereof. Henry E. Sherer also filed a petition for probate, asking that letters testamentary be issued to him, setting forth in his petition that Sylvester Rocco had declined to act as executor and had filed his waiver to that effect. Pearl E. Train and Arthur R. Martens thereupon filed their written opposition and contest to Sherer’s petition for probate, and by separate petition sought appointment as administrators with the will annexed. After due hearing the trial court admitted the will to probate and granted letters testamentary to Henry E. Sherer. Pearl E. Train, the decedent’s daughter, alone appeals.

Paragraph 2 of section 74 of the Probate Code provides that a written will, or any part thereof, can be revoked by being burnt, torn, canceled, defaced, obliterated, or destroyed, with the intent and for the purpose of revolting the same, by the testator himself, or by some person in his presence and by his direction. We are of the view that the action of the testator and what was done when he directed the witness Train to draw a line, using a typewriter, through the words indicated in the foregoing recital, effected a sufficient revocation of the provisions of the "will relating to the appointment of the executor originally named in the will. As in Estate of Wikman, 148 Cal. 642, 645 [84 Pac. 212], the only question is whether the evidence sustains the conclusion that the cancellation was done by the testator with the intent and purpose of revoking that part of the will by which Sherer was appointed executor.

The facts of the Wikman case are closely parallel to the facts here. The testator had obtained possession of the will before executing the cancellation, and it remained in his possession until his death. The facts here are stronger than those held sufficient in Estate of Wikman, supra, for, in this case, the action of the testator was testified to by a number of witnesses who were present at the time the obliteration marks were made by the typewriter in the hands of witness Train. Furthermore, the memorandum written by Train at the bottom of the will and signed by the testator constituted competent evidence of the testator’s intent, although ineffective for the purpose of legally appointing the executrix and executor desired by the testator. From this evidence there arises the presumptions (1) “that the cancellation was the act of the testator; and (2) that it was performed with the intent and purpose of revoking” that portion of the will relating to the appointment of Boceo and Sherer. (Estate of Wikman, supra.) Estate of Olmsted, 122 Cal. 224, 232 [54 Pac. 745], cited approvingly in the Wikman case, supports the contention of the appellant here. The acts here taken by the testator fall squarely within what was held sufficient in Estate of Streeton, 183 Cal. 284 [191 Pac. 16], in which it was said (p. 291) that the slightest act with intent to revoke a will is sufficient for the purpose. It is the animus which must govern the extent and measure of operation to be attributed to the act. In the Wikman case, supra, when the will there in question was produced in court there were black ink lines through and over the words designating the executrix. “By these lines,” said the court (p. 643), “the said words were nearly, although not entirely, obliterated, but they were beyond doubt sufficient as a physical fact to constitute a cancellation of the words over which they appear if they were put there by the testator or at his direction for the purpose of cancellation.”

In view of these authorities, we are of opinion that the trial court was correct in finding that the portion of the will relating to executors had been canceled with intent to revoke it and the balance of the will was entitled to probate. The insertion of the names of an executrix and executor in the will at the instance of the testator amounted merely to an empty and illegal appointment. It did not amount to the execution of a codicil. There was, therefore, a sufficient revocation of a portion of the will relating to an executor, but an illegal effort to nominate other persons. The authorities hold that such a revocation, under the circumstances here existing, is valid, even though the substituted persons named cannot act because of a defect in the execution of the change. (Watson v. Hinson, 162 N. C. 72 [77 S. E. 1089, Ann. Cas. 1915A, 870].) It was there held that the erasure from a will of the name of a person therein designated as executor, and an insertion in place thereof of another name, had no effect on the instrument as a whole and the testator died testate without naming an executor. The insertion being inoperative because not properly made or witnessed, the office of executor was left vacant.

Therefore, while the court was correct in its appraisal of the effect of the cancellation, it was in error in the appointment of Sherer as executor. Persons are entitled to appointment -as administrators with the will annexed in the same order of priority as in the appointment of administrators. (Prob. Code, sec. 409.) Under section 422 of the same code, the appellant Pearl E. Train, daughter of the testator, and Arthur R. Martens, his son, are entitled to be appointed administrators with the will annexed.

The judgment of the trial court granting, letters testamentary to Henry E. Sherer is reversed. The" cause is remanded to the trial court with directions to cancel the order and in lieu and place thereof to enter its order appointing Pearl E. Train and Arthur R. Martens, daughter and son, respectively, of the testator, administrators with the will annexed of John D. Martens, deceased.

Shenk, J., Edmonds, J., Langdon, J., and Seawell, J., concurred.

Rehearing denied.