text:
    [S. F. No. 15075.
    In Bank.
    August 6, 1934.]
    THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA (a Public Corporation), Petitioner, v. CHARLES H. TOLL, as Treasurer, etc., et al., Respondents.

      James IT. Howard, Alan Patten and Charles C. Cooper, Jr., for Petitioner.
    Robert IT. Dunlap and George R. Larwill for Respondents.
   SHENK, J.

Mandamus to compel the respondents as treasurer and controller of the petitioner district to transfer the sum of $352,800 from the “Colorado River Waterworks Bonds Election 1931 Fund” to the “Colorado River Waterworks Bonds Election 1931 Interest and Sinking Fund” pursuant to an ordinance of the board of directors of the district, adopted November 17, 1933, requiring them to do so. A general demurrer to the petition has been filed as a return to the alternative writ.

The district was organized and is functioning under the act of 1927. (Stats. 1927, p. 694.) On September 11, 1931, the board of directors of the district adopted an ordinance calling an election for the purpose of authorizing the issuance of $220,000,000 of bonds of the district for “acquisition and construction by said district of a certain public improvement, towit:” (describing it in detail). The purpose was to construct works for conducting water from the Colorado River to and for the use of the inhabitants in the district. On September 29, 1931, the election was held and the issuance of bonds in the sum above stated was authorized. After proceedings regularly taken the Reconstruction Finance Corporation of the United States offered to purchase $40,000,000 of such bonds bearing interest at the rate of five per cent per annum, payable semi-annually. Of this amount bonds in the sum of $6,048,000 had been issued and delivered at the time the petition herein was filed, to wit, December 28, 1933. Interest in the sum of $352,800 must be paid by a tax levy during the current year unless such interest may be paid from the proceeds of bonds sold.

Construction work is in progress, but the improvement has not reached the stage where- it is revenue-producing, and will not reach that stage in 1934 and probably not for several years to come. On November 17, 1933, the board of directors adopted an ordinance appropriating from the 1931 bond fund, being the proceeds from the sale of the bonds, said sum of $352,800 for the payment of said interest and authorizing and directing the respondents to transfer said sum from the 1931 bond fund to the 1931 interest and sinking fund for the purpose of making such payment from the latter fund. The respondents refused to make the transfer, assigning as the reason for their refusal the claim that such transfer is unauthorized and would be contrary to the laws governing the payment of interest on said bonds.

In 1931, when the bond issue was authorized by vote of the electors of the district, section 7 (a) of the act, pursuant to which the district was created, provided and now provides that the board of directors thereof, in initiating proceedings for the issuance of bonds of the district, shall by ordinance declare the necessity therefor and shall recite therein “the objects and purposes for which the indebtedness is proposed to be incurred”. Section 7 (h) then provided that the proceeds of the bond issue “excepting premium and accrued interest, shall be placed in the treasury of said district to the credit of the proper improvement fund, and shall be applied exclusively to the purposes and objects mentioned in said ordinance. Premium and accrued interest shall be placed in the fund to be applied to the payment of interest on, and the retirement of, the bonds so sold.” Section 7 (j) then provided and now provides as follows: “The board of directors shall fix such rate or rates for water furnished as will pay the operating expenses of the district, provide for repairs and depreciation . . . pay the interest on any bonded debt, and, so far as practicable, provide a sinking or other fund for the payment of the principal of such debt ... ; it being the intention of this section to -require the district to pay the interest and principal of the bonded debt from the revenues of such district, so far as practicable. If, however, . . . the revenues . . . shall be inadequate to pay the interest and principal . . . the board of directors shall . . . levy and collect annually ... a tax sufficient to pay the annual interest on such bonds, or such part thereof as shall not be met from revenues of the district ...” Section 8 then provided and now provides: “On or before the twentieth day of August the board of directors of the district shall . . . determine the amount of money necessary to be raised by taxation during the fiscal year . . . and shall levy a tax accordingly; (1) sufficient to meet the interest and sinking fund requirements on all outstanding bonded indebtedness of said district; and (2) for all other district purposes.”

In 1933 section 7 (h) was amended by adding thereto the following: “Provided that the interest on said bonds accruing during the construction period and for one year thereafter shall be deemed to be a construction cost within the meaning of the purposes and objects mentioned in said ordinance and such interest may be paid from said proceeds of the sales of such bonds.”

The question is whether proceeds from the sale of bonds issued for the acquisition and construction of the improvement may be used for the purpose of paying interest on such bonds during the period of construction.

As a problem of financing and accounting in the construction of buildings of a private nature it appears to be the accepted theory and practice to charge to the building account the interest paid to the mortgagee or bondholders during the period of construction. It is asserted by the petitioner, supported by appropriate references to textbooks and writers on economics, finance and accounting, and adjudicated cases in other jurisdictions, that in the public utility field generally, interest charges, while normally an unquestioned charge against revenue, may be and are now quite universally considered as capital expenditures. Such a concern borrows money with which to construct its plant, an enterprise which may require several years. During the period of construction and when no revenue is accruing, interest must be paid. To produce a plant or system ready for operation and the resulting revenue therefrom, there must be paid not only the cost of labor, materials, equipment and supervision, but also interest on borrowed money in order to finance the building operations. This interest is considered a part of the cost of construction and may be paid from the capital account as a part of the cost of construction. In the field of eminent domain it has been said a fair rate of interest “upon the money invested in a plant during construction, and before completion, is as much a part of the cost of construction as is the money itself which is expended for materials and labor”. (Brunswick & Topsham Water District v. Maine Water Co., 99 Me. 371 [59 Atl. 537].) In the fixing of rates to be charged by public utilities, the practice of including interest during construction as a part of the cost of the property and therefore a capital expenditure has been recognized and approved. (Des Moines Gas Co. v. Des Moines, 238 U. S. 153 [35 Sup. Ct. 811, 59 L. Ed. 1244] ; Ohio Utilities Co. v. Public Utilities Com., 267 U. S. 359 [45 Sup. Ct. 259, 69 L. Ed. 656] ; Pioneer Telephone & Telegraph Co. v. Westenhaver, 29 Okl. 429 [118 Pac. 354, 38 L. R. A. (N. S.) 1209].) Mr. John H. Bickley, engaged in financial and accounting work for the Pennsylvania Public Service Commission and a recognized authority on the subject, has said: “An examination of the uniform classification of accounts prescribed by the various state public service, commissions, the Interstate Commerce Commission, the Federal Power Commission, and those recommended by national associations of utilities, reveals that they agree in charging to fixed capital interest paid on moneys borrowed for construction.” (See article in Journal of Land & Public Utility Economics, vol. 1, No. 4, October, 1925, pp. 414r-424.) The railroad commission of California is in accord with this practice (City of Los Angeles, 32 C. R. C. 579, 583; Los Angeles Gas & Electric Corp., 35 C. R. C. 442, 451, and note 6, 453, and note 8.) This court has recognized the same rule in principle in Reclamation District No. 1500 v. Reclamation Board, 197 Cal. 482 [241 Pac. 552].)

No good reason has been advanced why the same rule should not apply generally to the construction of publicly owned revenue-producing utilities financed by borrowed money. To follow the same accounting procedure would be within the necessarily implied powers of the district unless specifically or by necessary implication denied by the act of its creation or by some other statutory or constitutional limitation.

It is contended by the respondents that the enabling act, at the time the bonds were voted, should be construed so as to deny the power, although it did not specifically do so, and that the amendment of 1933, definitely conferring such power, was a legislative determination that the power did not theretofore exist. The purpose of the act was to provide for the acquisition and construction of such an improvement as is now under construction; and Considering the act as a whole it was unquestionably intended that it should be a self-sustaining revenue-producing utility. It was found to be such by the federal government as a necessary condition in the purchase of the bonds from the federal treasury. It was contemplated that rates to be fixed by the board should provide sufficient revenue to pay the cost of the improvement, including all interest and principal on the bonds, and that direct taxation of property in the district should be resorted to only in the event such revenue shall be insufficient. Obviously no revenue would be forthcoming until the improvement was completed and in condition to produce revenue. If interest paid on outstanding bonds during construction may, as we hold, be classed as a capital expenditure, then it would seem that resort to taxation to pay the same would be justified only in the event the statute clearly commanded it. When section 7 (j) of the act lays upon the board the duty to levy a tax to pay the bond obligations, such duty is imposed when the revenue shall be inadequate to pay the same. The possibility of revenues permitting a reduction in the tax rate otherwise required was clearly contemplated. Since the district is still in its construction period and the system is not yet completed and no revenues are available, we do not at this time feel justified in declaring that a tax levy to pay interest is mandatory. This is especially true when the statute by its own terms and the entire bond proceedings indicate without question that the improvement was intended to be self-liquidating both as to the initial cost and the subsequent operation, and that the taxation features of the entire plan be a safeguard or insurance that the bond obligations will certainly be paid when due, by taxation if necessary.

The argument that the amendment of 1933 in providing that interest during the construction period shall be deemed a construction cost within the meaning of the purposes and objects mentioned in the ordinance and may be paid from the proceeds of the sale of the bonds, necessarily implied a legislative determination that the statute prior to the amendment foreclosed the consideration of interest during construction as a construction cost, has been given due consideration. If the statute were clear to the effect that such interest could not be deemed a construction cost the contention of'the respondents might well be sustained; but the amendment of 1933 may as well be deemed a legislative determination that the meaning of the prior statute was uncertain or doubtful and the amendment adopted for the purpose of clarification.

The respondents call attention to the fact that the legislature in 1923 in adopting the Bridge and Highway District Act (Stats. 1923, p. 452), provided specifically in section 21 that interest during construction might be paid from the principal obtained by the sale of the bonds; and the rule is invoked that where a statute with reference to one subject contains a given provision the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed. The rule is established, but its application here need not be recognized. This is so for the reason that while both statutes treat of related subjects, the specific right conferred and duty imposed by the one to pay such interest from capital should not be deemed a denial of the right necessarily implied by the other to follow the generally accepted practice.

We find nothing in In re Metropolitan Water District, 215 Cal. 582 [11 Pac. (2d) 1095], to compel a different conclusion. The statement there relied upon by the respondents is to the effect that current expenses of the district will have to be met by taxation, if necessary, before any revenue is produced from the new system. As has been seen, the paying of interest during construction is not a current expense as distinguished from a capital expenditure and resort to taxation is not necessary, when, as here, funds are • available from the capital account. Other cases such as City of Oakland v. Williams, 107 Cal. App. 340 [290 Pac. 1044], and Murphy v. City of Spokane, 64 Wash. 681 [117 Pac. 476], are readily distinguishable on the facts and are not applicable here.

It is further contended by the respondents that the amendment of 1933 is invalid as applied to the entire bond issue as in violation of the federal and state Constitutions against impairment of contract obligations. The first contract claimed to be violated is the alleged contract between the taxpayer and the district arising under the statute and the bond proceedings leading up to the election, citing the familiar cases of Merchants Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329 [77 Pac. 937] , Peery v. City of Los Angeles, 187 Cal. 753 [203 Pac. 992, 19 A. L. R. 1044], O’Farrell v. County of Sonoma, 189 Cal. 343 [208 Pac. 117], and others to like effect. The argument seems to be that the taxpayers have a contractual right to be taxed immediately for the payment of such interest and should not be compelled to await the uncertainty of having to be taxed later on in the event the revenues of the district be insufficient to retire the bond issue, both principal and interest. The novelty of such a claim suggests itself. The existence of a contract may not be questioned, but it would seem to be a benefit to the taxpayer to be relieved of present taxation with the prospect of relief altogether.

The second contract claimed to be violated is that arising between the bondholder and the district. The argument in this behalf proceeds upon the theory that the use of principal to pay interest during construction is an unauthorized diversion of the principal fund, that a different method for securing funds to pay such interest is substituted and the value of the investment diminished. The right of the bondholder is to have his interest and principal paid when due and it would seem to be of little' concern to him from what fund his obligation is currently paid so long as that fund is, as to him, used for the objects and purposes for which the bonds were voted, viz., the Construction of the improvement and he is secure in the ultimate payment by resort to taxation if the revenues be insufficient.

The whole argument as to the impairment of contract rights is based on the theory that under the original statute and proceedings thereunder certain contractual obligations arose and that under the amendment of 1933 a different contract is attempted to be evolved. Having in mind the conclusions first announced, namely, that the board had under the original statute the necessarily implied power to pay interest during construction from the proceeds of the sale of the bonds, then the contract before and after the amendment of 1933 was not materially different and consequently no impairment has taken place.

It was settled in the case Golden Gate Bridge & Highway District v. Filmer, 217 Cal. 754 [21 Pac. (2d) 112, 91 A. L. R. 1], that an amendment to the statute extending the time for the payment of interest during construction for a period of six months after the completion of the improvement did not impair the obligation of any contract arising under the statute and proceedings for the issuance and sale of the bonds prior to the amendment. No reason has been suggested .why the same rule should not apply to the provisions of the 1933 amendment of the Metropolitan Water District Act extending such time for a period of one year. Considering the magnitude of the undertaking we think the same rule should apply in the present case.

The foregoing disposes of all of the points made by the parties essential to a proper determination of the matter.

Let the peremptory writ issue as prayed.

Curtis, J., Waste, C. J., and Thompson, J., concurred.


source: Caselaw Access Project

author: WASTE, C. J.

license: Public Domain

text:
    [Sac. No. 4784.
    In Bank.
    August 16, 1934.]
    A. HENDRICKSON, Respondent, v. C. S. BERTELSON et al., Appellants; LEON T. SMITH et al., Cross-Complainants and Respondents.

      Breed, Burpee & Robinson and A. W. Wylie for Appellants.
    J. S. Henderson and C. S. Baldwin for Respondents.
   WASTE, C. J.

Appeal from a judgment of the Superior Court of Modoc County foreclosing liens of materialmen, and ordering a sale of real property to satisfy the same.

The defendant Bertelson engaged in the construction of six dwellings upon six adjacent lots in Mountain View subdivision of Alturas. The building operations were to be financed by construction loans advanced by the defendant and appellant, California Mutual Building & Loan Association, secured by trust deeds bn each of the six lots. The contracts with the plaintiff and the defendant and cross-complainant Alturas Building Material Company were what are known as “lump sum” contracts, with but one consideration, and the building materials were to be furnished for all six dwellings without separate designations. The building and loan association commenced making advances when it was discovered that deliveries of material to three of the lots had been made, which would have affected the priority of its liens. It thereupon refused to make further advances. To meet this situation, both lien claimants executed waivers of liens as to these three lots, and the construction work thereupon proceeded upon all six houses. Thereafter it became necessary for the materialmen to file liens against the three lots, as to which waivers had not been given, for the unpaid balances due upon the lump sum contracts for the materials furnished. For the reasons hereinafter explained, they could not make separate designations of materials furnished each construction, as required by section 1188 of the Code of Civil Procedure. The plaintiff’s claim was for $249.90, and the cross-complainant’s claim was for $1210.93. No question of value is raised, and no notice of completion was ever filed.

The action having been tried, the court rendered judgment for the full amount of plaintiff’s claim, and costs, and for cross-complainant’s claim, and costs, and decreed that plaintiff and cross-complainant have liens for one-half the amount of their respective claims with costs as against said three lots, apportioning the said amounts in equal portions as against each of said lots. It was decreed that no priority existed in favor of either of said liens, and that the same were prior and superior to all rights of the California Mutual Building & Loan Association, holder of the trust deeds, and that said liens be foreclosed and the lots sold to satisfy the same.

Appellants contend that the liens are void by reason of the failure of the lien claimants to designate the amounts of their claims as against the individual lots, as required by section 1188' of the. Code "of Civil Procedure, and that the trial court was without power to make any apportionment of the liens as against the waiver-free lots.

The mechanics’ lien law is remedial in character, and should be liberally construed in its entirety with a view to effect its objects and to promote justice. (Hammond Lumber Co. v. Barth Investment Corp., 202 Cal. 606, 610 [262 Pac. 31].) While section 1188 does provide that where a claim of lien is filed against two or more buildings, the lien claimant must, at the same time,' desigonate the amount due on each of such buildings, it has been held not to require impossibilities, and that “the only effect of a failure to designate the amount due on each of two or more structures for which one claim is filed is to postpone the lien to those of other claimants”. (17 Cal. Jur., p. 145.) In Warren v. Hopkins, 110 Cal. 506, 510 [42 Pac. 986], it is said: “While section 1188 requires the claimant who files a lien against two or more buildings, or other improvements, to designate the specific amount for which he claims a lien upon each of such ‘improvements’, it does not require him to make such designation unless there is in fact a specific amount due to him on each of such improvements, and it might frequently happen that a contractor would construct several buildings under one contract, and there would not be any specific amount due to him on each of such buildings.” The District Court of Appeal for the Third Appellate District said in Southern California Lumber Co. v. Peters, 3 Cal. App. 478, 479 [86 Pac. 816] : “It will not be held that the legislature intended to defeat the application of the lien law to a particular class of cases by requiring the performance of something impossible; but, on the contrary, the mechanics’ lien law, being remedial in its nature, will be given a liberal interpretation to promote justice and carry out its general purpose, and it will be presumed that in enacting section 1188, Code of Civil Procedure, the legislature had in mind those cases only where it was possible to designate the amount due on each of several buildings and did not intend that the section should apply to any other class of cases.”

The trial court found specifically that defendant Bertelson purchased of the lien claimants building materials as specified, and generally, “all to be used, and all of which was used in the construction of said six dwelling houses; that said materials were furnished and delivered upon the ground where the construction of said dwelling houses was in progress on single orders and as one contract without any designation as to the amount of said materials to be used in any particular or specified dwelling house; ...”

This finding is not only fully supported by evidence, but might have been supplemented by the evidence showing that no separate records were kept by the lien claimants as to delivery of particular materials to particular improvements,. the deliveries being on the ground to the job as a whole, and the impossibility, therefore, of segregating and designating the same in the claims of lien. We are constrained, therefore, to hold that the lien claimants, under these circumstances, were not required to do the impossible, and were excused from complying with the statutory requirement of section 1188 that the lien claimants designate the amount due upon each of the structures or improvements to which materials were delivered.

The remaining question, as to the power of the trial court to apportion the liens to the respective lots, finds answer in the fact that actions to foreclose such liens are in this state regarded in the nature of judicial proceedings in equity. (Curnow v. Happy Valley Blue Gravel etc. Co., 68 Cal. 262 [9 Pac. 149]; Coghlam, v. Salvatore Quartararo, 15 Cal. App. 662 [115 Pac. 664]; 17 Cal. Jur. 166; note, Ann. Cas. 1913B, 283.) “When a court of equity has once obtained jurisdiction, it will do complete justice by deciding the whole case.” (Watson v. Sutro, 86 Cal. 500, 528 [24 Pac. 172, 25 Pac. 64].)

It was therefore properly within the jurisdiction of the court as a court of equity, and in line with the spirit of the mechanics’ lien law and constitutional provision, to apportion the amounts of the respective liens decreed as against the lots as to which no waivers were filed, and thereby preserve to the materialmen liens their priority over the liens of the trust deeds. “Equity regards that as done which ought to have been done.” (10 Cal. Jur. 505.)

Other points raised by appellants are deemed immaterial in view of the conclusions reached.

The judgment is affirmed.

Curtis, J., Preston, J., and Shenk, J., concurred.


author: SHENK, J.

text:
    [Sac. No. 4782.
    In Bank.
    August 21, 1934.]
    PERCY F. WOOD, Respondent, v. AGNES PENDOLA et al., Appellants.

      Virgil M. Airola for Appellants.
    Joseph H. Huberty and Huston & Huberty for Respondent.
   SHENK, J.

The plaintiff sued to quiet his title to an alleged appropriation right in the waters of Coyote Creek in Calaveras County, and for injunctive relief to enjoin the defendants’ interference with the right alleged. The defendants appeal from a judgment for the plaintiff.

The plaintiff based his right to recovery on a judgment for the plaintiff rendered on September 21, 1887, in an action commenced in the Superior Court in and for the County of Calaveras by Marinda Wood, the predecessor of the plaintiff, against Lorenzo Péndola, the defendants’ predecessor in interest, and which was affirmed on appeal. (Wood v. Pendola, 78 Cal. 287 [20 Pac. 678].) By that judgment the title of the plaintiff therein to the same right involved in the present action was decreed and the defendant there perpetually enjoined from interfering with that right. The defendants in the present action founded their claim of right on a final judgment of the Superior Court in and for San Joaquin County rendered on November 14, 1929, which established and determined the several priorities, quantities and points of diversion and use by the parties hereto to the waters of Coyote Creek, following an order of determination by the division of water rights, department of public works, pursuant to the provisions of the Water Commission Act. (Stats. 1913, p. 1012, as amended.) The order of the division of water rights established the right of Mrs. Marinda Wood to divert 0.875 cubic feet per second, priority, 1886, in the natural flow of Coyote Creek. The same order determined that Mrs. M. Pendola is entitled to divert 0.270 cubic feet per second priority, 1868, and 0.355 cubic feet per second, priority, 1885, from the natural flow of Coyote Creek. The trial court in the present'action found, and no showing is made that its finding is unsupported, that the right established in favor of Mrs. Pendola by the order of determination is the right involved in the present action, and by the judgment of 1887 decreed to be the property of the mother of the plaintiff herein.

The ground of the appeal is that the court erred in basing its decree herein on the judgment of 1887 rather than on the judgment of the Superior Court in San Joaquin County rendered on November 14, 1929. The defendants rely on the rule that the last judgment in point of time involving the same parties and the same subject matter controls and determines the rights of the parties. If the judgment of November 14, 1929, entered in the proceedings in San Joaquin County, is conclusive and enforceable as against the plaintiff herein, the rule stated governs to effect a reversal of the present judgment. (California Bank v. Traeger, 215 Cal. 346 [10 Pac. (2d) 51]; 15 Cal. Jur. 104, 105, and cases cited.)

In opposing the effect of the rule relied upon by the defendants the plaintiff urges that sections 36a and 36b of the Water Commission Act are in violation of sections 1 and 5 of article VI, section 13, of article I, article III, and section 25 of article IV of the California Constitution.

The Water Commission Act was approved by the voters, pursuant to a referendum petition, at the general election held in November, 1914, and became effective in the same year. The main purpose of the act is to regulate the right to appropriate and the issuance of permits for the appropriation of unappropriated waters of the state, through the administrative offices of a state water commission thereby created. The act defines what are or may become unappropriated waters subject to appropriation. (Secs. 11, 20a.) By section 25 the commission is given power upon its own initiative or upon petition signed by one or more claimants to water of any stream system to proceed to determine the rights based on prior appropriation of all claimants on the stream system. Provisions for notice of the order granting the petition, investigation and compiling of data and information, execution of surveys, preparation of maps, etc., notice of hearing, and hearing of all _claims and contests which may arise out of conflicting claims, and the making of an order establishing the several rights by appropriation of the waters of the stream system by the water commission are provided in sections 26 to 36 of the act. Section 25 of the act refers to a stream, stream system, lake or other body of water as a “stream system”.

In August, 1917, the state water commission on the joint petition of the Oakdale Irrigation District and the South San Joaquin Irrigation District granted an order for the investigation and determination of the rights of claimants to the use of waters of the Stanislaus River and its tributaries based upon prior appropriation. After investigation, notice and hearing on the claims of some sixty persons, including the claims of the parties hereto, to appropriation rights in said stream and its tributaries, the division of water rights, the successor of the state water commission, on September 21, 1922, made and entered its order.

Section 36a of the Water Commission Act provides for the filing of a certified copy of such order, together with the original evidence and transcript of testimony, duly certified, with the clerk of the superior court of the county in which said stream system or any part of it is situated. Pursuant to this provision there was filed with the clerk of the Superior Court in and for the County of San Joaquin a certified copy of the division’s order of September 21, 1922, together with the evidence and transcript. An order of the court setting a time for hearing was procured and served as therein provided.

Section 36b provides for the filing of notices of exceptions to the order by parties in interest who are aggrieved or dissatisfied with it, which notices shall be served in the manner provided on the state water commission and on adverse claimants. The section continues: "The order of determination by the state water commission and the statements or claims of claimants and exceptions made to the order of determination shall constitute the pleadings, but the court may allow such additional or amended pleadings as may be necessary to a final determination of the proceeding. If no exceptions shall have been filed with the clerk of the court as aforesaid, then on the day set for the hearing, on motion of the state water commission, or its attorney, the court shall enter a decree affirming said order of determination. On the day set for hearing all parties in interest who have filed notices of exceptions as aforesaid shall appear in person, or by counsel, and it shall be the duty of the court to hear the same or set the time for hearing, until such exceptions are disposed of, and all proceedings thereunder shall he as nearly as may be in accordance with the" rules governing civil actions. ...”

By section 36c the court may employ experts to investigate and report and may take additional evidence or refer the case back to the commission for that purpose. After the hearing the court is directed to enter a decree determining the right of all persons involved in the proceeding, including the extent, priority, amount, purpose of use, point of diversion, and place of use, and the tracts of land to which the use is appurtenant and other necessary conditions, and may assess the costs. The section also provides for appeals as in civil cases. ¡Section 36d requires that a certified copy of the decree shall be filed for record in each county in which any part of the stream system is located and in the office of the state water commission. Pursuant thereto the commission issues a certificate to each claimant setting forth the right decreed to belong to him. Section 36e makes the decree of the court conclusive as to the rights by appropriation of all existing claimants upon the stream system lawfully embraced in the determination.

A certified copy of the order of determination of September 21, 1922, was filed with the clerk of the Superior Court in San Joaquin County- with the matter and transcript required by section 36a, including also a certified copy of the judgment of the ¡Superior Court in and for the County of Calaveras entered in 1887. The record shows that Mrs. Marinda Wood, represented by her son, the plaintiff herein, and the defendants or their representatives contested the claim herein before the state water commission. The evidence on that contest, including the judgment of 1887, was also before the court of San Joaquin County. Although many of the claimants involved in the proceeding before the water commission filed exceptions to said order of determination with the clerk of San Joaquin County, and a hearing thereon was duly had by the court, neither the plaintiff herein nor his mother, Mrs. Marinda Wood, nor the defendants herein nor their predecessor, filed any exception to the order of the division of water rights. After an extended hearing the court in San Joaquin County, on November 14, 1929, entered its order and decree adjudging and defining in detail as required the rights of each of the claimants who appeared and contested the order of determination, and of the other claimants who made no appearance in said proceeding. As to said latter claimants, including the parties hereto, their appropriative rights were adjudged and described as in said order of determination with the exception that the right as described therein was amended to include the right of the parties hereto among other claimants to the use of the water for domestic and stock-watering purposes throughout the year unlimited by the period specified for irrigation purposes. Neither of the parties hereto or their predecessors in interest prosecuted an appeal from the judgment of the Superior Court of San Joaquin County, and that judgment has become final. The question presented here is whether it is conclusive upon the plaintiff herein.

The question of the constitutionality of sections 36a and 36b of the Water Commission Act was litigated and decided adversely to the contentions of the plaintiff in the case of Bray v. Superior Court, 92 Cal. App. 428 [268 Pac. 374, 1081]. In that case it was held that section 36b was not a local law nor a special law regulating the practice of courts of justice in violation of section 25 of article IV of the Constitution. It was pointed out in that case that the proceedings in the superior court conducted upon the filing therein of the order of determination are not in the nature of a review of nor an appeal from that order, but constitute a trial of the issues presented by the order and the objections thereto which may be filed as in ordinary civil cases, and as in other civil cases that an appeal lies from the judgment of the superior court. The sections involved do not, therefore, violate section 1 of article VI of the Constitution lodging the entire judicial power of the state in ■ the tribunals therein specified, nor article III prohibiting the exercise by one department of the state government of powers properly belonging to either of the other departments. It has long been settled that the water commission exercises only administrative functions. (Tulare Water Co. v. State Water Com., 187 Cal. 533 [202 Pac. 874] ; Department of Public Works v. Superior Court, 197 Cal. 215 [239 Pac. 1076].) That this conclusion, as held in Bray v. Superior Court, supra, governs in respect to the functions performed by the commission pursuant to sections 25 to 36 of the act becomes apparent when it is considered that there is no finality to its order establishing the appropriative rights of claimants in the stream system. In respect to those functions it becomes an administrative arm of the superior court where proceedings in the nature of a civil action in which the trial of the rights of claimants established by the commission’s order must be had before any order becomes binding on the parties interested. The foregoing also disposes of the contention that section 36b violates article YI, section 5, of the Constitution prescribing the limits of the appellate jurisdiction of the superior court, and the plaintiff’s reliance on the ease of Mojave River Irr. Dist. v. Superior Court, 202 Cal. 717 [262 Pac. 724], which was fully discussed and distinguished in the case of Bray v. Superior Court, supra. No appellate jurisdiction is vested in the superior court by section 36b of the act. The mere fact that the superior court is directed to affirm the order of determination when no objections thereto are filed does not change the conclusion in this respect. The proceeding where no objection is filed is in no substantial respect different from an entry of judgment on evidence before the court upon the default of a party who has been served with summons or other appropriate prescribed process.

A further contention is made that the sections involved violate the due process clause (art. I, sec. 13', Constitution). The plaintiff contends that “due process of law” means law in its regular administration through courts of justice according to those rules and principles which have been established by our system of jurisprudence for the enforcement and protection of private rights. That the opportunity for a trial governed by the same established rules of evidence and procedure as are applied in other eases under similar conditions was given to the parties in the proceeding in the Superior Court in San Joaquin County was also decided by the case of Bray v. Superior Court, supra, at page 435. It is unnecessary to add to the remarks contained in the opinion in that case, where it is pointed out that the fact that the process prescribed for the purpose of obtaining jurisdiction of the parties is not a summons does not invalidate the proceedings so long as the court acquires jurisdiction of the parties and the cause. No claim is made that, the plaintiff or his predecessor was not named in said order of determination as a party interested or that he was not served with notice as required by the provisions of the act, or that he was in any manner deprived of the opportunity afforded by the act of appearing in said proceedings in San Joaquin County and entering his objections to the order of determination filed therein. Thus the contention that the plaintiff or his ancestor was not a party to the proceeding in San Joaquin County and that no valid judgment was rendered as against him because in fact neither he nor his ancestor made an appearance therein cannot avail him on the record presented here. That the mere procedure by which jurisdiction is ’ to be exercised may be prescribed by the legislature has been long recognized. (Ex parte Harker, 49 Cal. 465; In re Jessup, 81 Cal. 408, 470 [21 Pac. 976, 22 Pac. 742, 1028, 6 L. R. A. 594].) The sections involved herein regulate procedure merely, and do not have the effect to impair the constitutional power of the court or to defeat the exercise of- its jurisdiction, nor do they attempt to regulate what jurisdiction it shall possess. This is the distinction between section 36b and section lb of the act pointed out by the court in the case of Bray v. Superior Court, supra.

The plaintiff contends that by the commencement of the proceeding in the Superior Court in San Joaquin County there occurred a violation of the proviso of section 5 of article VI of the California Constitution that all actions for the recovery of the possession of, quieting the title to or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated, and of subdivision 4 of section 25 of article IV prohibiting the legislature from passing local or special laws providing for changing the venue in civil or criminal actions. The legislature obviously had in mind those sections of the Constitution when it provided by section 36a of the act that the order of determination of the water commission, transcript and evidence shall be filed in the county in which the stream system, or some part thereof, is situated. No reason is presented, and none is perceived, why the Stanislaus River and all of its tributaries may not constitute a stream system within the meaning of the act. The joint petition initiating the proceeding before the water commission claimed appropriative rights in the waters of the Stanislaus River. The claims of all of the upper appropriators, including the parties hereto, on that river or its tributaries, formed the proper subject of an action or proceeding to determine the respective rights of the petitioners and such other users. No contention is made that such an action or proceeding could not have been commenced by the same petitioners in the Superior Court in San Joaquin County, a portion of the southern boundary of which is formed by the Stanislaus River, to determine the same rights as are determined by the judgment of the Superior Court in San Joaquin County in the present case. (See E. C. Horst Co. v. New Blue Point Min. Co., 177 Cal. 631 [171 Pac. 417] ; Last Chance Water Ditch Co. v. Emigrant Ditch Co., 129 Cal. 277 [61 Pac. 960]; Lower Kings River Water Ditch Co. v. Kings River & Fresno Canal Co., 60 Cal. 408; SufterButte Canal Co. v. Great Western Power Co., 65 Cal. App. 597 [224 Pac. 768] ; Yolo County Cons. Water Co. v. Adamson, 22 Cal. App. 493 [135 Pac. 48].) Coyote Creek is an upper tributary of the Stanislaus River, and flows entirely in Calaveras County. The fact, however, that no part of Coyote Creek lies in San Joaquin County does not invalidate the judgment rendered by the Superior Court in San Joaquin County determining the respective appropriative rights in and to the waters of that creek of the parties hereto.

Further, it is urged that the proceeding in the Superior Court in and for San Joaquin County permits a taking of private property for public use without compensation. The proceeding was brought merely to determine and establish conflicting private rights. No taking or public right or use was involved.

The contention of the plaintiff that the Calaveras County judgment of 1887 could not be attacked collaterally in the proceedings before the state water commission is not available to him in the present action. It might have formed the basis of an objection in the proceedings before the Superior Court in San Joaquin County. The contention now made amounts to a collateral attack upon the judgment of the latter court. Because of the finality of that judgment the plaintiff is now in the position where he is unable to attack collaterally such a judgment, which is valid on its face.

Finally, it is stated that the rights of Percy F. Wood, the plaintiff here, were not adjudicated by the judgment of the Superior Court in and for San Joaquin County. It is shown that by a deed dated December 11, 1916, Mrs. Marinda Wood conveyed all of her right and interest in and to the subject of the present action to her three children, one of whom is the plaintiff. The proceedings before the state water commission were commenced on August 14, 1917. The order of determination was made and entered in its office on September 21, 1922, and thereupon the court proceeding was duly commenced in the county of San Joaquin. The deed from Mrs. Marinda Wood to her children was recorded subsequently on the tenth day of July, 1923, and after the order setting the time for hearing had been made by the superior court and notice had been served in accordance with the provisions of the, act. So far as the public records showed at the time of the proceedings before the commission and the commencement of the proceeding in the superior court the plaintiff’s mother owned the title to the property. Furthermore, the plaintiff testified on the trial of the present action that he gave evidence before the state water commission and submitted the proof of claim in his mother’s name in those proceedings. We fail to see, therefore, how he is not a claimant whose right was lawfully embraced within the determination and as to which the decree of the superior court is conclusive pursuant to the provisions of section 36e of the act.

The foregoing views compel a conclusion that the judgment in favor of the plaintiff herein should be, and it is hereby, reversed.

Preston, J., Curtis, J., Plummer, J., pro tern., and Waste, C. J., concurred.

Rehearing denied.


author: THE COURT.

text:
    [S. F. No. 15076.
    In Bank.
    August 29, 1934.]
    JOSEPHINE N. S. CALLAHAN, Respondent, v. HAHNEMANN HOSPITAL et al., Defendants; THOMAS H. McGAVACK et al., Appellants.

      Redman, Alexander & Bacon and Herbert Chamberlin for Appellants.
    Garton D. Keyston, Grove J. Fink and "M. Mitchell Bourquin for Respondent.
   THE COURT.

This cause was ordered transferred to this court after decision by the District Court of Appeal for the reason that we desired to give further consideration to some of the questions presented on the appeal and determined by said decision. After a careful study of the briefs and arguments of the parties hereto, we are of the conclusion that the opinion of the District Court of Appeal, with the deletion of certain portions not necessary to said decision, correctly determines all questions both of law and fact in issue between said parties. The opinion, written by Mr. Justice Spence, as modified, we approve and adopt as the opinion of this court. It is as follows:

“Plaintiff sought to recover damages for alleged malpractice. The defendants were the Hahnemann Hospital, at which plaintiff was treated; C. J. Burnham, now Dr. Burnham, who was then an externe at the hospital and who administered to plaintiff certain injections; A. Walter, a nurse who assisted Mr. Burnham, and Doctors Thomas H. McGavack and James W. Ward, the doctors in charge of the treatment of plaintiff. A nonsuit was granted as to the defendant A. Walter and the jury returned a verdict in favor of the defendant hospital and the defendant Burnham. From a judgment on the verdict in favor of plaintiff and against the defendants, Dr. McGavack and Dr. Ward, said defendants appeal.
“The main questions involved on this appeal relate to the sufficiency of the evidence to sustain the verdict and judgment. We shall therefore proceed to set forth the evidence in some detail. In doing so we are mindful of the general rules controlling the action of appellate courts where the claim is made that the evidence is insufficient, but before testing the sufficiency of the evidence offered on behalf of plaintiff, we believe it proper under the circumstances before us to set forth some of the evidence of the attending physicians who were the only experts who saw plaintiff at or near the time of the treatment.
“Plaintiff’s claims arise out of the treatment given her following an operation necessitated by a ruptured appendix: The results of the operation appear to have been entirely satisfactory and it is apparently conceded that said operation was skilfully performed. The subsequent treatment complained of consisted of the subcutaneous injection of a saline solution containing glucose.
“Plaintiff was a woman approximately 65 years of age. As early as 1890 she had experienced trouble with her appendix, but after being taken to a hospital she had jumped off the operating table. In July, 1928, the condition of her appendix became acute and she consulted Dr. McGavack. With plaintiff’s consent, Dr. Ward, a surgeon of 49 years’ experience and a specialist who had performed some 4000 abdominal operations, was called into consultation. The doctors recommended immediate operation and plaintiff was taken to the hospital. All preparations for the operation were made, but plaintiff changed her mind and left the hospital in an ambulance against the advice of the doctors. Her condition finally became very critical and she again consulted the doctors and agreed to undergo the necessary operation. On July 27, 1928, she was rushed to Hahnemann Hospital in an ambulance and was operated upon without delay. The anesthetic was administered by Dr. Mc-Gavack while the operative work was performed by Dr. Ward with the assistance of Dr. Cookingham. The operation revealed that the appendix had ruptured and that plaintiff was in the last throes of peritonitis.
“Before describing the treatment which followed we will quote some of the testimony relating to plaintiff’s condition before and immediately after the operation. Dr. McGavaek testified: ‘A. We found conditions again worse, evidently with an appendix that had already ruptured, as her pain had become general through the entire abdomen, and she ceased to breathe with the abdominal muscles at all, and her temperature was somewhere around 102 and 102%, her pulse was much weaker, and at times intermittent, in contrast to what it had been on July 19th. She was beginning to show the type of face that we find with peritonitis, which is a pinched drawn expression, more or less of shock and fear, with cold extremities,. and at that time some failing of the extremities in the hands and feet. Needless to say, at this time hospitalization seemed imperative, and every measure was attempted which might help her, even though she refused hospitalization. I might add that another feature, of course, was the onset by this time of marked dehydration, inasmuch as from July 19th until July 24th she had taken practically no fluid, and what fluid had been taken had been vomited, so that we were dealing with a very much dehydrated and toxic individual. Q. Dehydrated means what, Doctor? A. Decreased water in the tissues; removal of necessary fluids from the tissues. Those that are necessary for proper circulation. Q. And that she was very toxic means what? A. That she was very toxic means somewhat the picture I described, that she was absorbing poisons through an area in her abdomen, which was affecting her whole system, paralyzing the circulation, and paralyzing almost every function of the body. Q. And if that condition is not changed what is the ultimate result? A. The ultimate result could only be one thing. Q. What is that? A. Death.’
“Dr. Ward testified as to her condition at the hospital just before the operation as follows: ‘A. Very bad; she had gone from bad to worse; she was in the throes of general peritonitis; the abdomen was distended and very tender; she was mentally dull and the lips blue and the fingernails blue and the nose pinched; the temperature was about 102 or 103—I don’t exactly recall; the pulse accelerated and intermittent — only a certain number of beats coming through to the wrist. In all, a very bad picture. Q. You mean that the chance to save life seemed slim? A. Very slim. It was with a good deal of courage that I undertook to do for her, but I wanted to save her if I could. Q. You had a fear that she would die on the table? A. A very great fear.’
“Plaintiff’s condition immediately after the operation was described by Dr. McGavack as follows: ‘A. When she returned from the surgery her condition was even mgre critical, owing to the necessary shock of an operative procedure. She. returned to her room with cold extremities, blue cyanosed extremities; her heart beats were much more weakened than before; her pulse was. very rapid, running from 140 to 150 at the heart, and at the pulse the circulation was so weak the patient would not come through to the pulse, the wrist, and it was possibly only about 30 or 40 beats each minute. The pinched and drawn toxic expression of the face was present, and all the tissues were dehydrated. In other words, she was suffering from the shock of an operation, plus the most toxic type of absorption from the appendix' that had been ruptured at least eight days. Q. Was she dying? A. Yes.’
“Dr. Cookingham gave the following answers to questions relating to plaintiff’s condition at that time: ‘Q. What opinion did you have—did you have following the operation—of the chances for the lady to live or die? A. That she would not recover. Q. You thought she would die? A. I did.’
“Dr. Ward stated that during all of his experience with cases involving abdominal surgery he had never encountered a worse ease than plaintiff’s in which the patient had recovered.
“Following the operation the doctors were confronted with the problem of sustaining the life of the patient. Dr. McGavack, Dr. Ward and Dr. Cookingham held a consultation and formed the judgment that it was essential to inject a saline solution containing 10 per cent of glucose in order to save plaintiff’s life. The soundness of their judgment in this regard is not questioned. It further appears that the use of such solutions containing up to 50 per cent glucose is a recognized and approved method of treatment. Having arrived at the above-mentioned conclusion, the three doctors then discussed the question of the method of injecting the necessary fluid and nourishment. It appears that there are two recognized and approved methods of making such injections: First, into the veins, which is called the intravenous method; and second, under the skin, which is called the subcutaneous method. There is a third method referred to in the testimony as the ‘Murphy Drip,’ but it appears that this method is merely used as an auxiliary of the two principal methods of injection above mentioned. It further appears that such solutions containing a high percentage of glucose are not ordinarily injected by the subcutaneous method because of the likelihood of the sloughing of the tissue at the places where the injections are made. The doctors concluded, however, that due to the toxic condition of plaintiff the intravenous method could not be used as plaintiff’s circulation was failing and such injections would overload ‘the already poisoned heart’. They therefore ordered the injections containing 10 per cent glucose to be given subcutaneously. Pursuant to the doctor’s directions, the injections were given subcutaneously in plaintiff’s thighs by the externe at the hospital. Plaintiff’s life was saved, but there was a sloughing of the tissues at the places where the injections were made. This action was brought to recover for the alleged damage sustained by reason of such sloughing.
“We will repeat here some of the testimony of the attending physicians. A portion of the testimony of Dr. Mc-Gavack was as follows: ‘Q. Now, doctor, how did you determine upon the 10 per cent solution of glucose in 2 per eent_ saline. Will you tell us how and why that conclusion was reached? A. Yes, surely. Here was a patient who was extremely toxic; here was a patient who needed fluid extremely badly; here was a patient who had a failing— almost completely failing circulation. It was necessary to give this patient nourishment. It was necessary to give this patient fluid. It was impossible to give this patient nourishment or fluid through the most readily accessible channel, that is, the veins. Within 24 seconds anything going into the veins has gone entirely through your body. It was absolutely out of the question to give it by this route, because the circulation was failing, and as I say, almost stopped. Had we done so we would have given this patient a quart or more of fluid for a failing, weakened, practically moribund heart, to pass through the circulation. Q. Moribund means what? A. Dying. It was necessary that both nourishment and fluid go in. The next most readily accessible means of absorption is by giving the fluids under the skin, and consequently we resorted to this route. We utilized the strength of the solution, as mentioned, because we wanted her to have the maximum amount we could possibly put into this particular area at one time. This was followed by the third most readily accessible method of giving fluid, and that was the Murphy Drip, or the fluid per rectum. Q. Now, Doctor, at the time that you prescribed the 10 per cent solution for the hypodermoclysis, did you know at that time the possibility that it might cause sores. A. Yes. Q. And knowing that it might cause sores on her leg why did you do it? A. We would much rather have a chance of having our patients live than have them die with clear legs. Q. In other words, it was a case of saving her life? A. It certainly was. Q. And before you actually did it did you take consultation with Dr. Ward? A. I did. Q. And did he share your view? A. He did. Q. If the situation had not been so critical would you have used 10 per cent? A. Probably not. Q. Probably not. But it was because of the crisis? A. That is right.’ “Dr. Cooldngham testified: ‘Q. . . . From the condition that you found there, would you say that she was toxic? A. Very. Q. What does that mean? A. Poisoned by absorptions. Q. And if, under this condition, some outside material had been put in the blood stream,—say glucose intravenously,—what effect would it have? A. It would have overloaded the already poisoned heart and possibly have resulted seriously. Q. It has been testified in this case there was a prescription of ten per cent of glucose— 1000 centimeters—and two per cent of saline, given subcutaneously. As a medical man, in your judgment, was that good medical practice? A. It was.’
“Dr. Ward testified: ‘A. The situation was one of sustaining the patient’s vitality, which was very low, and she had but a single thread to hang on. Her toxemia was very great, and it was thought if we could assist her over twenty-four hours that vitality might return, and we concluded to not give any stimulation through the veins because of her weakened heart and because of the very small collapsed veins that could be seen, and she was rather stout and the tissues flabby, and she was so thoroughly dehydrated—lost so much blood by not having received of retained any that she did receive—it was thought best to use the hypodermoelysis method which is the installation of saline beneath the skin. It was accordingly decided we should give her as much glucose as her body could burn up, the intention being to sustain and overcome the toxemia by supplying her blood stream with glucose, for glucose had helped, and she needed as much help as possible, and a ten-per-cent solution was decided on,—at least we knew it was a little more than the average, yet we thought that the emergency of the hour moved us to do that. Q. Did you accomplish the purpose and save her life by the treatment? A. Yes. The possible injuries to the legs were so infinitesimal compared with the great fact of saving her life, that it was a matter of simple practice to do that. Q. You knew at the time that the ten per cent solution was given that there might be a sloughing of the legs and scars afterwards? A. Yes. It very often occurs when we use a simple saline, and sometimes it follows a simple hypodermic syringe. Q. Having in mind the condition that confronted you at the time, and having in mind the practice of medicine in San Francisco, in your opinion was the treatment administered in accord with good medical practice in San Francisco at that time? A. Yes. And it saved her life. Q. And that was what you were after? A. Absolutely.’
“We may mention the fact that not only the defendant doctors, but other medical men were called by defendants to establish the fact that the procedure adopted by the defendant doctors in the situation which confronted them was in accordance with recognized and approved medical practice. Among those called were Dr. W. B. Coffey, surgeon of 43 years’ experience and the chief surgeon for the Southern Pacific Company and other companies with 600 doctors working under his direction. He testified that under the conditions it certainly would be good medical practice to inject subcutaneously a solution containing 10 per cent glucose and would be wrong not to do it. He testified further: ‘A. I frequently give it in the Southern Pacific Hospital. I have given 25 per cent in one case. I took a desperate chance, but took it and saved the life. Q. What else did it do? A. It was absorbed in this case. We do not get a breaking down in all eases. It depends on the individual and the sensitiveness of the skin. That varies. We do not know it will break down. If it does we are not a bit alarmed about it, as long as we save the life. ’
“Dr. Leo Eloessor, a surgeon of 25 years’ experience and professor of clinical surgery at Stanford University, testified that the defendant doctors followed the recognized medical practice under the circumstances.
“The sloughing of tissue referred to in the testimony occurred shortly after the injections were administered. Plaintiff nevertheless wrote a letter to Dr. Ward about one month later which read in part as follows: ‘Dear Loved Doctor Ward:—I owe my live to your skill. This will remain with me to the end. . . . Affectionately and Ever Yours with Deepest Gratitude, N. C. Callahan. ’
“This action was commenced in 1929 against all of the defendants mentioned above. In support of her claims against the defendants plaintiff produced but one medical witness, Dr. Nathan S. Housman, who first saw plaintiff in February, 1929. Dr. Housman had practiced surgery since 1921 but the testimony does not show that he had ever performed an operation in abdominal surgery or treated a case comparable to plaintiff’s. Dr. Housman was on the stand on three separate occasions during the course of the trial. On the first occasion he testified that when he first saw plaintiff her limbs showed a loss of tissue and scars at the two points on her thighs. In answer to a hypothetical question he gave his opinion that this was caused by ‘something wrong with your solution’; that ‘there was too high a content of glucose in the solution’. At the close of plaintiff’s testimony a motion for nonsuit was argued on behalf of the defendant hospital and its attendants upon the ground that the testimony merely showed that they had carried out the instructions of the defendant doctors. Plaintiff asked and was granted leave to recall Dr. Housman. He then testified that it was recognized by the medical profession in this locality that 5 per cent glucose in such solutions was the high safe limit for use subcutaneously because of the possibility of sloughing of the tissue. He further testified that in his opinion the percentage used in the present case ‘was well over 10 per cent. I would imagine around 20 and maybe 50 per cent was used in the leg’. When asked how he determined this he said, ‘In some cases 5 per cent up to 10 per cent have been given subcutaneously and it is a marked reaction without sloughing. That is why I determined that.’ He further stated, ‘There are other things that might come into this thing along with it. I did not prepare the solution or the needles. If you have a dirty needle you may get an infection causing a sloughing.’ A reading of the testimony of this witness on that occasion shows that it was mainly directed at the defendants other than the defendant doctors in an attempt to prove that the sloughing was caused by the injection of a solution with a higher content of glucose than that prescribed by the doctors or that it was possibly caused by the use of a dirty needle. This witness was again recalled after the defendant doctors’ motion for nonsuit had been denied and after defendants had presented their testimony. He was asked, “Doctor, would there be any. benefit to be expected from giving a person, if that person was in extreme shock and dehydrated, would there be any benefit to be expected in giving that person more than 5 per cent glucose under the skin?’ He answered in the negative. He was further asked, ‘If a person was actually in dire need of food, would there be anything surrounding such an extreme condition which would prohibit giving that glucose in the veins?’ He again answered in the negative. It will be noted that the first question embodied only the elements of shock and dehydration while the second question embodied only the element of need of food. Neither question covered the condition of plaintiff at the time the injections were prescribed when she was suffering not only from shock, dehydration and need of food, but was in a dying condition with failing circulation and toxemia resulting from the peritonitis.
“ The main question before us is whether the evidence was sufficient to sustain the verdict against the defendant doctors. Appellants contend that it was not and in our opinion this contention must be sustained. The evidence with respect to respondent’s condition has been set forth above. There is no evidence to show that the diagnosis made by the attending physicians was not entirely correct. The paramount duty of the doctors under the circumstances was to endeavor to save the life of the patient. There is no evidence to challenge the judgment of the doctors in determining that an injection of a solution containing 10 per cent glucose was essential to accomplish that purpose. There is no evidence to show that in the condition in which they found respondent a 10 per cent solution could have been injected in the veins without defeating that purpose. In other words, it does not appear that respondent’s life could have been saved by any method of treatment other than the one prescribed by the defendant doctors. Under these circumstances, it certainly was not malpractice to save the patient’s life even though this was accomplished by the subcutaneous injection of a solution containing a higher percentage of glucose than is ordinarily so injected and even though sloughing resulted at the points of injection. While appellants make the further claim that the testimony of Dr. Housman is self-destructive and inherently improbable, we deem it unnecessary to comment thereon for even when taken at its full face value we believe it is insufficient to sustain the verdict.
“Numerous authorities have been cited in the briefs of the parties to this appeal. It appears from these and other authorities that there are three main classes of cases in which malpractice has been charged; first, those charging unskilfulness in diagnosis; second, those charging unskilfulness in the selection of a method of treatment; and third, those charging unskilfulness in some act or omission on the part of the physician in administering the treatment. We are •concerned on this appeal only with a charge of unskilfulness on the part of appellants in the selection of the method of treatment. It is a matter of common knowledge that such selection is a matter of judgment and opinion upon which the most skilful members of the medical profession will often honestly differ. It has therefore been stated that ‘A physician is required to possess only ordinary skill in his profession and to use his best judgment in the exercise of that skill, and if he complies with these requirements, he is not liable for the nonsuccess of his treatment. ’ (Linn v. Piersol, 37 Cal. App. 171, 173 [173 Pac. 763, 764].) This rule with certain limitations has been quite generally followed in cases involving the, charge of unskilfulness in the selection of a method of treatment. (48 Cor. Jur. 1127, 1128, and cases cited; Dahl v. Wagner, 87 Wash. 492 [151 Pac. 1079]; Dishman v. Northern Pac. Beneficial Assn., 96 Wash. 182 [164 Pac. 943]; Loudon v. Scott, 58 Mont. 645 [194 Pac. 488, 12 A. L. R. 1487] ; Luka v. Lowrie, 171 Mich. 122 [136 N. W. 1106, 41 L. R. A. (N. S.) 290] ; Staloch v. Holm, 100 Minn. 276 [111 N. W. 264, 9 L. R. A. (N. S.) 712]; Delahunt v. Finton, 244 Mich. 226 [221 N. W. 168]; see, also, Markart v. Zeimer, 67 Cal. App. 363, 371 [227 Pac. 683].)
“ There is no suggestion that appellants did not possess the requisite skill nor that they did not exercise their best judgment. It is urged by respondent, however, that in the selection of the method of treatment, they were required to keep within ‘recognized and approved methods’. This may be conceded but we have already pointed out that there is no evidence to show that they did not keep within recognized and approved methods under the extraordinary conditions which confronted them. The evidence offered by respondent was not related to the condition in which appellants found respondent at the time the subcutaneous injection was prescribed, and no witness for-respondent stated what was the recognized or approved method for the treatment of that condition. . . .
“ Counsel for respondent claims that there is a conflict in the evidence relating to respondent’s condition at the time in question. The only evidence referred to is that of lay witnesses. We find no material conflict in this evidence but in any event the testimony of the expert witnesses was conclusive on this subject. (Johnson v. Clarke, 98 Cal. App. 358 [276 Pac. 1052].) Respondent makes the further point that Dr. Housman testified that there was no condition of a patient which would justify the subcutaneous injection of a solution containing more than 5 per cent glucose. We have above indicated that Dr. Housman’s testimony was general in its nature and was not related to the condition of the patient at the time in question; He did not dispute the conclusion of appellants that an injection of a solution containing 10 per cent glucose was essential to save respondent’s life nor did he dispute the conclusion of appellants that the intravenous injection of such a solution in a patient in respondent’s condition would have endangered her life. It is therefore apparent that his testimony was inadequate to show what was the recognized and approved method to be selected for the treatment of respondent’s condition or to show that appellants had in any manner violated any duty owing to respondent.
“Appellants raise numerous other points relating to the pleadings, the amount of damages awarded, the rulings on instructions and other rulings of the trial court. The conclusions which we reached make it unnecessary to discuss these questions. When the cause was submitted to the jury, the trial court should have directed a verdict in favor of appellants and we believe that the trial court should now be directed to enter judgment in their favor.”

The judgment is reversed with directions to the trial court to enter judgment in favor of appellants.

Rehearing denied.

Spence, J., pro tern., being disqualified, did not participate.


text:
    [L. A. No. 14368.
    In Bank.
    August 31, 1934.]
    In the Matter of the Guardianship of the Estate of CARRIE C. CROSSLEY, an Incompetent Person. CARRIE C. CROSSLEY, Appellant, v. ELIZABETH S. ELIEL, Respondent.
    Charles J. Wendland for Appellant.
    Elliot Gibbs for Respondent.
   WASTE, C. J.

This is an appeal from an order declaring appellant “mentally incompetent and incapable of taking care of or managing her property”, and appointing a guardian of her estate, but not of her person. Since taking the appeal the ward has died. Respondent has filed herein a copy of the death certificate and suggests that the appeal be dismissed for the reason that the issue as to appellant’s competency became moot by her death.

Preliminarily, we do not hesitate to state that we have examined the appeal on its merits and find nothing suggesting a reversal of the order. However, the proceeding being personal in character abated with the death of the ward. If the order should be reversed, the guardianship hearing could not be retried. Examination of the authorities discloses similar instances wherein appeals .from adjudications of incompetency were dismissed because of the death of the ward pending appeal. (In re Fleming, 223 App. Div. 849 [228 N. Y. Supp. 544]; Palmer v. Wolf, 178 Iowa, 932 [160 N. W. 285].) See, also, Estate of King, 43 Cal. App. 307, 308 [184 Pac. 964].

However, as in Palmer v. Wolf, supra, and in order to preclude any. incidental effect of an adjudication of incompetency upon estate proceedings, the appeal is dismissed without prejudice.

Preston, J., Curtis, J., Spence, J., pro tern., and Shenk, J.'$ concurred.


text:
    [S. F. No. 15232.
    In Bank.
    September 5, 1934.]
    RUSSELL C. WILLETT, Petitioner, v. FRANK C. JORDAN, as Secretary of State, etc., Respondent; PERCY PURVIANCE, Intervener.

      Frank L. Guerena for Petitioner.
    U. S. Webb, Attorney-General, and Robert W. Harrison, Deputy Attorney-General, for Respondent.
    M. Jos. McGranagkan for Intervener.
   SHENK, J.

This is a proceeding- in mandamus. The petitioner is the president of the state board of chiropractic examiners. He is one of the proponents of a proposed initiative measure to amend the Chiropractic Act approved by the electors of the state at the general election on November 7, 1922. Acting with other proponents he caused a petition, in sections, to be prepared and circulated among the qualified electors of the state for signatures sufficient to place the measure on the ballot at the ensuing general election. This petition was circulated in forty-two counties of the state, including the county of Alameda. On or before August 7, 1934, the county clerks and registrars of voters certified to the respondent herein the result of their examinations of the sections of said petitions filed in their respective counties. On August 7th the respondent announced that the certificates then on file in his office showed that 108,108 qualified electors of the state had signed said petition and that the signatures of 110,811 qualified electors were necessary to place said measure on the ballot at the general election to be held November 6, 1934.

On August 3 and 7, 1934, the county clerk of Alameda County certified to the respondent that the signatures of 16,024 qualified electors appeared on the sections of said petition filed in his county. Four days later, on August 11th, said county clerk ascertained that a mistake had occurred in cheeking the signatures to said petition on file in his office and that there were actually 19,751 signatures of qualified electors on said petition on August 7, 1934, instead of 16,024, as certified by him to the respondent. Accordingly said county clerk on August 11th transmitted to the respondent a certificate wherein he recited that through inadvertence said mistake had been made; that in fact there were on file in his office, prior to his original certificates, sections of said petition containing 19,751 signatures of qualified electors of said county, and amending his original certificates as of the date thereof so as to show the true status of said petitions filed in his office within the time required by law.

The petition herein seeks to compel the respondent to recognize the certificates as amended and place the initiative measure on the ballot at the ensuing general election. The respondent has refused to recognize the amended certificates without an order of court directing him to do so, on the ground that under section 1 of article IY of the Constitution the last day for the filing of such certificates in his office was August 7th in order that the measure be placed on the ballot at the next general election.

A general demurrer has been interposed to the petition herein. The facts hereinbefore related are disclosed by the petition and are undisputed. It therefore appears that the petitioner and those interested with him in the presentation of the proposed measure have done everything required of them to be done and within the time provided by law in order to place said measure before the electors of the state at the general election next November. The respondent does not contend, in fact he concedes, that if he is required to act in accordance with said amended certificates, there will be ample time to make the necessary arrangements for placing the measure on the ballot at said election. No prejudice to anyone will ensue if that is required to be done which would have been done but for the mistake and inadvertence of the county clerk, for the petitioner and his associates were in nowise at fault in the presentation of the sections of the petition to said county clerk.

The petitioner invokes the doctrine of relation. This doctrine is of both equitable and legal cognizance. (Peyton v. Desmond, 129 Fed. 1, 11.) It was promulgated for the purpose of promoting justice or preventing injustice and is applicable when several proceedings are essential to complete a particular transaction. (Gibson v. Chouteau, 13 Wall. (80 U. S.) 92 [20 L. Ed. 534].) When it is invoked the doctrine must be based on some antecedent lawful right (United States v. Atchison, T. & S. F. Ry. Co., 142 Fed. 176, 187), and when there is otherwise no remedy. (James v. Nunley, 6 Ind. Ter. 336 [97 S. W. 1028]; see 53 Cor. Jur., pp. 1185, 1186, and cases there cited.) Although applied usually in private transactions, no good reason has been advanced, and none appears, why this doctrine should not be applied in an initiative proceeding, as was done in Hinkley v. Wells, 57 Cal. App. 206, 209 [206 Pac. 1023], All of the essentials of its application appear to be present in this proceeding. No private rights are involved and none are prejudiced. To refuse its application under the facts here disclosed would countenance a palpable injustice to those who, at great expense and effort, did all that was required of them by law and had established the antecedent right to have their petitions recognized as sufficient. The correction of the admitted mistake of the public officer, the county clerk, and the amendment of the original certificates by him must therefore be deemed to date back to the time of the filing of the certificates originally filed in the office of the respondent. When this is done the duty of the respondent is plain.

A petition in intervention was filed on behalf of Percy Purviance, who alleges that he “is a party interested in this proceeding as one licensed under the Chiropractic Act” and “will be directly affected by the results” thereof. He denies that the error of the county clerk was through inadvertence and alleges that twenty-five per cent of the signatures covered by the amendment to the certificates were not of qualified electors of said county. In effect he seeks to have this court order a re-examination of the records of Alameda County to ascertain the facts.

Assuming, without deciding, that the intervener would have the right in any event to inject himself into this proceeding, it is clear that he has not stated a case wherein his intervention should be allowed. “It is the general rule that an intervention will not be allowed when it would retard the principal suit, or require a reopening of the case for further evidence, or delay the trial of the action, or change the position of the original parties.” (Hibernia etc. Society v. Churchill, 128 Cal. 633 [61 Pac. 278, 79 Am. St. Rep. 73]; 20 Cal. Jur., p. 518.) If the intervention should take the form requested, a defeat of the purpose and rights of the proponents of the measure would be the inevitable result.

Furthermore, if what the intervener alleges be true, namely, that twenty-five per cent of the signatures certified by the amendment were, as claimed, improperly certified, there would still be nearly one hundred qualified signatures more than sufficient to place the measure on the ballot. The petition in intervention is dismissed.

Let a peremptory writ issue as prayed.

Curtis, J., Waste, C. J., Preston, J., Spence, J., pro tern., and Tyler, J., pro tem., concurred.


text:
    [S. F. No. 15235.
    In Bank.
    September 7, 1934.]
    W. H. VELA, Petitioner, v. LEOTTA M. HUBERTY, Registrar of Voters of Amador County, et al., Respondents.
    ■ Cooley, Crowley & Supple for Petitioner.
    Ralph McGee, District Attorney, T. P. Wittsehen, Special Counsel, and A. D. Pierovich for Respondents.
   THE COURT.

Petition for a peremptory writ of mandate directed to the respondents requiring them to refrain from conducting an election for the recall of the judge of the Superior Court in the County of Amador.

The election was called for Tuesday, August 28, 1934, the date for the holding of the general primary election throughout the state. It is the contention of petitioner that it has been and is the intention of the board of supervisors of the county that the recall election should he regarded as consolidated with the general primary election to be held throughout the county on that date, in violation of section 1 of the act to permit the consolidation of elections and providing for procedure therefor approved June 11, 1913, as amended (Stats. 1931, p. 2196). As originally enacted section 1 of the act provided that any two or more elections called to be held on the same day in the same territory might be consolidated. As amended in 1931 the act, section 1, provides “that no such election shall be consolidated with the primary election held throughout the state in August of each even numbered year.”

At the conclusion of the argument the Chief Justice announced the decision from the bench:

The court is of the view that the petition for the peremptory writ must be denied. Upon the presentation of the petition we were of the view that a prima facie case for issuance of the writ was made out. Consequently the burden of refuting that view was thrown upon the respondents. While the provision of the act (Stats. 1931, p. 2196) prohibiting the consolidation of other elections with primary elections appears to be mandatory, the question is in a somewhat hazy condition, in view of the decisions of this court as to circumstances and conditions determining what is and what is not a consolidated election. This case-narrows itself to the proposition whether the two elections have been actually consolidated. Under the showing made by the return, which is not challenged, the case seems to be governed by the decisions in the eases cited by the respondents in the argument. (Mead v. City of Los Angeles, 185 Cal. 422 [197 Pac. 65]; San Francisco v. Collins, 216 Cal. 187 [13 Pac. (2d) 912].)

The ease is of that class, each one of which must be determined by the particular facts involved. We deem it unnecessary to enlarge further the facts presented by the return and not challenged.

The question of laches, raised by the respondents, has also received the consideration of the court. The petition for the writ was filed at the eleventh hour. The election is called for to-morrow. We take judicial notice of the fact that much of the territory included in Amador County is mountainous and sparsely settled. The election proclamation appears to have been given due notice, through publication in the papers and otherwise, and we take it the people of the county are prepared to go to the polls tomorrow and vote. .

For the foregoing reasons the petition for the writ is denied and the alternative writ is discharged.


author: CURTIS, J.

text:
    [S. F. No. 15243.
    In Bank.
    September 8, 1934.]
    HAROLD J. BOYD, Petitioner, v. FRANK C. JORDAN, Secretary of State, Respondent.

      Pillsbury, Madison & Sutro for Petitioner.
    U. S. Webb, Attorney-General, and Robert W. Harrison, Chief Deputy Attorney-General, for Respondent.
    Curtis Hillyer, Irve C. Boldman and Patrick Francis O’Rourke, as Amici Curiae on Behalf of Respondent.
   CURTIS, J.

Petition for writ of mandate directed to the Secretary of State commanding him to refrain from submitting a certain purported initiative measure to the electors of the state, and not to certify said measure to the registrars of voters and county clerks of the state. Upon the filing of the petition this court issued an alternative writ directed to said officer, commanding him to refrain from committing any of the acts in the petition complained of, or to show cause to the contrary at a specified time before this court designated in said order. At the appointed time the respondent appeared and filed as an answer and return to the alternative writ a general demurrer to the petition.

The document filed with the Secretary of State purports to be a petition for the submission to the electors of the state for their approval of a proposed constitutional amendment under the initiative provisions of the Constitution of the state. It is signed by the requisite number of qualified electors of the state and has been filed with the Secretary of State within the time entitling it to be submitted for adoption at the coming state election, if it is otherwise found to be sufficient. The proposed amendment to the Constitution is set forth in full in the purported petition. The petitioner herein, a qualified elector and taxpayer of the state, objects to the submission of the proposed measure to the electors of the state upon the following grounds:

1. No petition for the submission of the measure has been presented to the Secretary of State as required by article IV, section 1, of the Constitution.

2. The words, “Initiative Measure Providing for Adoption of Gross Eeceipts Act”, which appear at the top of each page after page 1 of the purported petition, do not constitute “a short title . . . showing the nature of the petition and the subject to which it relates”.

The purported petition, which the petitioner attacks and contends is not a petition in any sense of the word, contains no formal petition whatever. It is not addressed to the Secretary of State and contains no request or prayer that the measure set forth therein be submitted to the electors of the state for their approval. At the top of this document, in twelve-point black-face type are printed, as required by said section of the Constitution, the words “Initiative Measure to be Submitted Directly to the Electors”. These words are followed by a summarization of the proposed measure by the attorney-general, and then the proposed measure itself. Aside from the signatures of the electors, and the verification by the solicitor or circulator of the document, the foregoing constitutes the entire contents of the purported petition. The question as to the sufficiency of such document to meet the requirements of the Constitution might present an interesting subject for discussion. But we find it unnecessary to pass upon that question as we are of the opinion that the document is fatally defective in respect to the short title printed across the top of each page after the first page. We will, however, refer to the document before us as the petition.

Section 1197b of the Political Code provides that, “Across the top of each page after the first page of every initiative . . . petition or section thereof which may be prepared and circulated in accordance with law there shall be printed in eighteen-point gothic type a short title, in not to exceed twenty words, showing the nature of the petition and the subject to which it relates.” As we have seen, the short title used in the present instance is in the following words: “Initiative Measure Providing for Adoption of Gross Receipts Act”.

In the case of California Teachers Assn. v. Collins, 221 Cal. 202 [34 Pac. (2d) 134], we held that a substantial compliance with this provision of said section of the code was all that was required. We further held, in considering the requirements of the Constitution and the code sections respecting these headlines at the top of the pages of an initiative petition, that, “the requirements of both the Constitution and the statute are intended to and do give information to the electors who are asked to sign the initiative petitions”.

In determining whether the short title used in the present petition meets the requirements of the statute, it is necessary to ascertain the subject of the amendment to the Constitution which it is proposed to submit to the electorate of the state by means of said initiative petition. A fair statement of the nature of this proposed amendment to the Constitution may be gained from the summarization or title thereof prepared by the attorney-general which reads as follows: “Gross Receipts Tax. Initiative Constitutional Amendment Provides for taxing all money and value received, including the value of commodities when produced and/or processed, at a percentage thereof sufficient to balance state and local budgets, excepting therefrom bank deposits and principal of loans. Requires public utilities pay state tax plus average of all local taxes on gross receipts. Prohibits all other state and local taxes. Limits budget increases to five per cent annually. Prohibits exemptions. Provides for elective State Administration Board and elective County Administrators. Authorizes enforcement legislation; prescribes penalties for violation.” This title briefly states the subject of the proposed amendment. Prom it, and also from an examination of the petition as a whole, it appears that the proposed amendment to the Constitution provides for a tax to be levied upon gross receipts of money from all sources, with certain exceptions therein specified, sufficient in amount to meet and pay the expenses of maintaining the state government and all political subdivisions of the state; all existing tax laws are repealed, an entirely new set of officers are provided for the levy and • assessment of the proposed tax; and the offices of assessor and tax collector of every county in the state are abolished. This tax, while it is not so designated in the petition, is commonly called and known as the syncrotax.

It clearly appears, therefore, that the subject to which the proposed amendment to the Constitution relates is a tax on gross receipts for the purpose of meeting the expense of government. And in this connection, it will be observed that gross receipts are considered and dealt with in the proposed amendment for no other purpose than that of fixing the basis upon which said tax is to be computed. The essential features, therefore, and the sole purpose of the proposed measure, is to levy a tax to maintain the state and its political subdivisions. Does the short title which we have set out above comply with the requirements of said section 1197b, which directs that it shall show the nature of the petition and the subject to which it relates? The petition before us asks that an amendment to the Constitution be submitted to the people, which amendment has for its sole purpose the raising of revenue for the support of the state government. The short title used in this petition makes no reference to a tax or to the fact that the proposed amendment is a revenue measure. We think it is clear that the short title neither shows the nature of the petition, nor does it show the subject to which it relates. There is nothing in this short title which informed the elector who was asked to sign it that the proposed measure provided for the levy of any tax whatever. He was informed that the petition provided for the adoption of a gross receipt act, but no information was given him as to the character of the proposed legislation regarding that subject. He was as much in the dark regarding the real purpose of the proposed measure after reading the short title as he was before he had read it. The short title did not bring to his mind any idea or. suggestion whatever that the amendment proposed related to taxation in any form whatever. It, therefore, gave him no information upon the very subject with which he was then concerned, and as to which the law gave him the right to be informed. In our opinion, this vital defect in the short title vitiates the whole petition and renders it inadequate for any purpose. This contention finds support in the decision rendered by this court in the case of Fatjo v. Pfister, 117 Cal. 83 [48 Pac. 1012], where the court held an act of the legislature, which in effect levied a tax, was invalid under the section' of the Constitution which provided that “every act shall embrace but one subject, which subject shall be expressed in its title”, for the reason, among others, that the title to the act did not indicate that the act provided for a tax.

Respondent has called to our attention a number of statutes of the state which he contends bear short titles similar to the short title used in the present petition. These statutes, with their alleged “short titles”, are: “The School Code of the State of California,” “The Transportation District Act,” “Warehouse Receipts Act,” “Water Commission Act,” “California Water District Act,” “Weights and Measures Act,” and “State Housing Act”. An examination of these statutes, however, will show that the real title of each of these acts sets out in full the subject to which the act relates. In some of these statutes the title is lengthy and hundreds of words are used to express the subject to which it relates. It is, however, provided in each of said acts, as well as many others enacted by our state in different but similar phraseology, and evidently for the sake of convenience, that the particular act may be known or referred to or cited by a brief designation or short title, such as, for instance, “The State Housing Act”, the title to which act contains more than four hundred words. To repeat this lengthy title every time the act is cited or referred to would be unnecessarily burdensome, and it was to avoid this repetition of the lengthy title that the legislature provided that the particular act might be referred to and cited in a brief and much simpler form. This brief form was not in any sense the title of the act, although in some of the statutes permitting its use it is so referred to. Yet even in those cases where it is expressly designated as a “short title”, it plainly appears that the sense in which these words are used, and the purpose of their use, are far different from those set forth in section 1197b of the Political Code. In one case the short title is permitted as a mere matter of convenience, while in the other it is required in order to inform the elector of the nature of the petition which he is asked to sign.

Assuming for the sake of argument that a brief or short title may in some instances show the subject to which the statutes relate, that is no argument that every short title, or the short title used in the petition herein involved, meets the requirements of section 1197b of the Political Code, or that it expresses the subject of the proposed measure set out in the petition herein. As we have seen, the subject of this proposed measure is a tax on gross sales, and the short title used in said petition gives no inkling that such is the purpose of the proposed measure. We might illustrate the insufficiency of this short title by recalling the proposed constitutional amendment which at different times during the past few years has been submitted to the voters of the state providing for the so-called single tax system •for raising state revenues. This proposed measure provided that all governmental revenues should be raised by a tax on land. Would a short title simply stating that the proposed measure was an “Initiative Measure Providing for Adoption of Land Act”, have given to the electors any information that the proposed constitutional amendment was to wipe out all existing laws relative to taxation and to substitute in their place an entirely new system placing the entire burden of maintaining our state and its subdivisions upon the land of the state? To ask this question is to answer it in the negative. A further illustration might be had from our present law respecting the gasoline tax. Had the statute creating this tax been entitled, “Gasoline Act” or “A Measure Providing for Adoption of Gasoline Act”, would anyone contend that this title expressed the subject to which the act related, or gave any information to anybody that the proposed measure contemplated a tax on gasoline sold throughout the state? We hardly think anyone would care to risk his professional reputation by answering this question in the affirmative. So with the short title used in the present petition. It makes no reference directly or indirectly to the subject of taxation concerning which the proposed measure primarily and exclusively deals. It does not, therefore, show the nature of the petition nor the subject to which the petition relates. It does not, in our opinion, amount to even a substantial compliance with the requirements of section 1197b of the Political Code, and for that reason we are constrained to hold that the proposed measure set out in the said petition is not entitled to be submitted to the electors of the state.

Respondent further contends that the Constitution contains a complete scheme for proposing a law or constitutional amendment and that section 1197b of the Political Code, being an act of the legislature passed for the purpose of facilitating the operation of the Constitution, must be held to be merely directory. The Constitution itself gives to the legislature the power to enact legislation to facilitate the operation of said section of the Constitution providing for the adoption of laws or the amendment of the Constitution through the power of the initiative. Section 1197b of the Political Code was enacted in pursuance of this authority. Its purpose is to throw additional safeguards around the operation of the initiative law. Its design is to give to the elector additional information other than that afforded by the Constitution as to the nature of the petition which he is asked to sign. No elector can intelligently exercise his rights under the initiative law without a knowledge of the petition which he is asked to sign, and any legislation which will increase the facilities of the elector to acquire such information is well within the terms of the Constitution permitting the enactment of legislation to facilitate the operation of this provision of the Constitution. There is nothing to indicate from the language of the Constitution that such legislation, is directory only. Like all statutes of a similar nature, the section of the code here involved is mandatory in its nature.

Let the peremptory writ issue as prayed for.

Preston, J., Waste, C. J., Shenk, J., and Thompson, J., concurred.