author: PRESTON, J.

text:
    [S. F. No. 15056.
    In Bank.
    September 11, 1934.]
    EAST BAY MUNICIPAL UTILITY DISTRICT (a Municipal Utility District), Petitioner, v. DEPARTMENT OF PUBLIC WORKS OF THE STATE OF CALIFORNIA et al., Respondents; CALAVERAS PUBLIC UTILITY DISTRICT, Intervener.

      T. P. Wittschen, L. W. Irving and Harold Raines for Petitioner.
    U. S. Webb, Attorney-General, C. C. Carleton and Henry Holsinger for Respondents.
    Joseph H. Huberty for Intervener.
    Virgil M. Airola and ■ Glenn West, as Amici Curiae on Behalf of Respondents.
   PRESTON, J.

Proceeding in mandamus. The issue is presented by the petition, answer thereto and demurrer to the answer. Petitioner is a public corporation and respondents are the statutory successors of the commission created by the Water Commission Act (Stats. 1913, p. 1012, as amended; Deering’s Gen. Laws, 1931, vol. 3, p. 4998, Act 9091; Pol. Code, secs. 348-359b, 363-363gg).

Acting upon information which would justify the preferment of irrigation and domestic uses over power use of the unappropriated waters of the Mokelumne River, respondents inserted in the permit issued to petitioner for the utilization of such waters, the following condition: “The right to store and use water for power purposes under this permit shall not interfere with future appropriations of said water for agricultural or municipal purposes.” Respondents assert that under sections 15 and 20 of said act as amended, this discretionary administrative power was conferred upon them.

Section 15, as amended in 1921 (Stats. 1921, p. 443), reads as follows: “The state water commission shall allow, under the provisions of this act, the appropriation for beneficial purposes of unappropriated water under such terms and conditions as in the judgment of the commission will best develop, conserve and utilize in the public interest the ■water sought to be appropriated. It is hereby declared to be the established policy of this state that the use of water for domestic purposes is the highest use of water and that the next highest use is for irrigation. In acting upon applications to appropriate water the commission shall be guided by the above declaration of policy. The commission shall reject an application when in its judgment the proposed appropriation would not best conserve the public interest. ’ ’

Petitioner insists that to insert the above-quoted provision in the permit was to exercise a judicial function, which could not be done by said state agency under the decisions of this court. (Tulare Water Co. v. State Water Com., 187 Cal. 533 [202 Pac. 874] ; Mojave Irr. Dist. v. Superior Court, 202 Cal. 717 [262 Pac. 724]; Yuba River etc. Co. v. Nevada Irr. Dist., 207 Cal. 521 [279 Pac. 128].)

Said amended section 15 has not as yet been interpreted by this court, although its present rendering was in existence when the case of Tulare Water Co. v. State Water Com., supra, was decided. There the court quoted the original section but did not consider it as amended. It should also be noted that early in the history of our jurisprudence it was recognized that the legislative department of the government should be allowed to delegate to bureaus and commissions the exercise of a certain amount of discretion respecting matters which required findings of fact and the deducing of conclusions therefrom, in much the same manner as judicial processes are employed by the courts.

This situation was well described in the case of Gaylord v. City of Pasadena, 175 Cal. 433, 436 [166 Pac. 348], as follows: “ ... it has become increasingly imperative that many q«asi-legislative and quasi-judicial functions, which in smaller communities and under more primitive conditions were performed directly by the legislative or judicial branches of the government, are entrusted to departments, boards, commissions, and agents. No sound objection can longer be successfully advanced to this growing method of transacting public business. These things must be done in this way or they cannot be done at all, and their doing, in a very real sense, makes for the safety of the republic, and is thus sanctioned by the highest law. For as the Supreme Court of the United States declares: ‘Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends, would be “to stop the wheels of government” and bring about confusion, if not paralysis, in the conduct of the public business.’ ...” (Union Bridge Co. v. United States, 204 U. S. 364 [27 Sup. Ct. 367, 51 L. Ed. 523].)

This principle has been applied to various statutes as will be disclosed by the following, among other cases: Ex parte Whitley, 144 Cal. 167, 179 [77 Pac. 879, 1 Ann. Cas. 13] ; Tarpey v. McClure, 190 Cal. 593, 600 [213 Pac. 983] ; People v. Monterey Fish Products Co., 195 Cal. 548 [234 Pac. 398, 38 A. L. R. 1186]; Bank of Italy v. Johnson, 200 Cal. 1 [251 Pac. 784]; People v. Globe Grain & Mill. Co., 211 Cal. 121 [294 Pac. 3]; Carter v. Stevens, 211 Cal. 281 [295 Pac. 28]; In re Weisberg, 215 Cal. 624, 632, 633 [12 Pac. (2d) 446].

But the above observations only partially determine the question here presented. “The fact that a public agent exercises judgment and discretion in the performance of his duties does not make his action or powers judicial in their character.” (Quinchard v. Board of Trustees, 113 Cal. 664, 670 [45 Pac. 856].) Underlying the question before us is the distinction between the exercise of judicial and legislative power. For if the acts to be done are of legislative cognizance, then it is proper to delegate, within certain limits, such legislative functions to an administrative agency.

The opinion of Mr. Justice Field in the Sinking-Fund Cases, 99 U. S. 700, 761 [25 L. Ed. 496], sets forth this distinction as follows: “The distinction between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other prescribes what the law shall be in future eases arising under it. Wherever an act undertakes to determine a question of right or obligation, or of property, as the foundation upon which it proceeds, such act is to that extent a judicial one, and not the proper exercise of legislative functions.”

This definition was approved by this court in the case of People v. Oakland Board of Education, 54 Cal. 375, 377, where, in about the year 1880, the board of education of Oakland displaced the McGuffey series of readers in the public schools with the Appleton series. After quoting the above language of Justice Field, the court there continued as follows: “The Board acted upon the proposition before it as one of policy or expediency, aiming to adopt that which, in its judgment, would be best for the constituency which it represented. Its action was then political or legislative, and was in no proper sense judicial in its character. It is conceded that the Board exercised its judgment in the action which it took, but this it was called to do in the exercise of its legislative functions. It is apparent that the exercise of judgment is not the criterion by which this proceeding must be viewed to determine its character. To render it the exercise of a judicial function, its judgment must act in a matter which is judicial in the sense above indicated.”

To the same effect see Wulzen v. Board of Supervisors, 101 Cal. 15, 24 [35 Pac. 353, 40 Am. St. Rep. 17]; also the Quinchard case, supra, where, speaking of the nature of the action of the board in the initiation of a street improvement proceeding, the court said (113 Cal., pp. 669, 670): “The judgment which they exercise in ordering the improvement is not a determination of the rights of an individual under existing laws, but is the conclusion or opinion which they form in the exercise of the discretionary power that has been entrusted to them, and upon a consideration of the public welfare and demands for which they are to provide. This discretion and opinion is a part of the legislative power that has been conferred upon the city, and is of the same character as that exercised by the legislature itself in providing for the general welfare of the state, and is equally independent of supervision by the judiciary.” See, also, Mabray v. School Board, 162 Miss. 632 [137 So. 105, 106].

Under the statute before us, unless and until the statutory requirements and conditions are met, the applicant obtains no property right or any other right against the state. If the statutory prerequisites are not present, the application may be rejected in its entirety or, as here done, a permit may be issued with qualifications as to use of the water, and under neither hypothesis would it be the exercise of judicial authority. Of course, it must always be kept in mind that the state authority cannot arbitrarily, and upon caprice only, reject an application. Clearly, the manner in which the unappropriated waters of the streams of the state shall be distributed among the applicants therefor involves questions of policy, and the legislature, in the interest of the public welfare, may prescribe reasonable conditions and priorities in such distribution. This is true even though the filing of an application would, under certain conditions, be a sufficient foundation for a justiciable issue as against some other claimant. Where the facts justify the action, the water authority should be allowed to impose, in the public interest, the restrictions and conditions provided for in the act.

The cases of Tulare Water Co. v. State Water Com., supra, and Mojave Irr. Dist. v. Superior Court, supra, are not at all at variance with this conclusion. The point emphasized in those cases is that the issuance of such permits is not the exercise of a judicial function and, therefore, is not reviewable by a court proceeding, either general or under special act of the legislature.

The case of Yuba River etc. Co. v. Nevada Irr. Dist., supra, holds no more than this: That an applicant who has complied with the statute has sufficient legal status, although no permit may have yet issued, to authorize him to institute a court action to determine conflicting claims between himself and other claimants to the water subject to appropriation. But this holding is far from being an adjudication of the question before us. As already noted, when an applicant files his application and all the prerequisite facts set forth in the statute are present, the state agency may not arbitrarily refuse the granting of the permit but may be compelled by mandamus to issue it; but unless all the conditions are present, the water authority may grant a qualified permit consonant with such conditions, or may, if justified, reject the application altogether.

These views make it unnecessary to consider the effect upon petitioner’s application of the Statutes of 1927, chapter 286, which authorize the department of finance to make filings on unappropriated waters on behalf of the state for use in carrying out its plans and purposes to conserve the water resources of the state. Likewise, it is unnecessary to consider whether the relation to the state of all unappropriated waters has been changed by section 3, article XIV, of the Constitution, interpreted along with section 11 of the Water Commission Act, as construed in the case of Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 695 [22 Pac. (2d) 5].

It follows from the above that the petition must be dismissed, and it is so ordered. The petition of intervener is disallowed.

•Curtis, J., Waste, C. J., Shenk, J., Thompson, J., and Seawell, J., concurred.

Rehearing denied.


source: Caselaw Access Project

license: Public Domain

text:
    [S. F. No. 15244.
    In Bank.
    September 13, 1934.]
    THE HOLMES INVESTMENT COMPANY (a Corporation), Petitioner, v. THE BOARD OF SUPERVISORS OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

      Robert M. Searls, Jesse H. Steinhart, J. S. Lamson and Francis V. Keesling for Petitioner.
    John J. O'’Toole, City Attorney, and Leo C. Lennon, Deputy City Attorney, for Respondents.
   PRESTON, J.

Mandamus proceeding presented by a petition and general demurrer thereto. The issue involved is the proper scope to be accorded the word “expenditures” found in article XI, section 20, of the Constitution, this section being a part of the so-called Riley-Stewart tax plan voted into the Constitution and made effective June 27, 1933.

The proper construction of this word will disclose the ingredient items which shall go to make up the net sum or “base” upon which the permitted increase of revenues for a given year over the preceding year or years is to be calculated. Petitioner is a taxpayer and asserts that respondent board is now, by its proposed tax levy for the year 1934-1935, about to exceed the allowable sum by $1,866,696. Petitioner, in reaching the' above amount of excess, strips from the gross budget the items specially mentioned in said constitutional provision and also the following items: “Proceeds of 1932 relief bonds”, “borrowings from the state loan relief fund”, and all so-called subventions, consisting of such items received from the state as orphans’ aid, widows’ pensions, tuberculosis patients, one-half of cost of fire-boats, pensions to the blind, old age pensions and gasoline and motor vehicle tax. The amount so arrived at is called the net base and it is then compared with the corresponding figures for the years 1932-1933 and 1933-1934. Thus comes into being the proper base for the calculation of the increase allowable according to petitioner. But it is further disclosed that the decrease in such base figure of the year 1933-1934, over the year 1932-1933, is in excess of the figure obtained by taking five per cent of the base figure of 1933-1934.

Petitioner allows the city the benefit of the larger of the two items and deduces the conclusion that the corresponding base figure for the year 1932-1933 becomes the limit of revenue allowable to the city and county for the year 1934r-1935. This limit is less than the proposed limit set by respondents by the said sum of $1,866,696. Respondents insist that not only should the proceeds of said relief bonds be an ingredient of said net base but also the sums borrowed from the state relief fund and the so-called subvention items as well.

The provision of the' Constitution, paraphrased to show the provisions here pertinent, reads as follows (art. XI, sec. 20) : “The expenditures, other than expenditures to pay interest and redemption charges on bonds heretofore or hereafter issued . . . .shall not in any year exceed by more than five per centum the expenditures, other than expenditures to pay interest and redemption charges on bonds heretofore or hereafter issued . . . provided . . . that any county (etc.) . . . that decreases the amount of its expenditures in any year or years may increase, in any subsequent year or years, the amount of its expenditures by the amount, or any fraction thereof, so reduced, or by an amount not more than five per centum of the amount expended in the year immediately preceding . . . provided, however, that the limitations qpon expenditures imposed or authorized by this section shall not apply to expenditures by or on behalf of publicly owned public utilities ... or to expenditures arising out of any gift, bequest or donation. ...”

We are unable to respect the limits imposed by the section and at the same time sustain the contentions of respondents. The clear intent of the provision is to limit the amount to be raised by taxation to a stipulated increase over the corresponding amount for the next preceding year. The section is a part of the deliberate plan to relieve real property from the excessive burden of taxation under which it was suffering, transfer it to the state, and to forbid any arbitrary or unregulated increase of it thereafter. The whole scheme would be of little consequence if this were not its purpose. The section in question expressly forbids a place in said base amount for such items as expenditures to pay interest, redemption charges on bonds, sums spent on publicly owned utilities and sums received from bequests, gifts or donations.

Now to allow the proceeds of any bond sale of whatsoever type to enter into said base would be to insert therein a false factor which would be pyramided from year to year thereafter. Nor could the proceeds of bonds of one class be included without including the proceeds of bonds of all classes. The argument that the relief fund could have been raised by taxation and therefore should be allowed cannot be followed as this would necessarily include all other bonds for which the power of taxation might have been substituted. Besides the taxing power is being curbed, so why should it be allowed to feed upon a fund raised by a two-thirds vote of the people and unrelated to the question of taxation for current expenditures ? Moreover, why exclude the levy for payment of bond interest and redemption charges and include in the base the proceeds of the bonds themselves? The bonds and their retirement are fixed items and should be expressly excluded from this plan for retrenchment.

It seems, generally speaking, that fixed obligations are excluded and obligations of varying amounts for current items are affected by the restriction. The loan from the state and the subventions seem clearly to be excluded' as gifts, bequests or donations. We can see no logical place for them as ingredient items of said base. These views are in substantial accord with the holding of the District Court of Appeal, Third District, opinion by Mr. Justice Plummer, in the case of Crow v. Board of Supervisors, 135 Cal. App. 451, 463 [27 Pac. (2d) 655, 28 Pac. (2d) 906], where it is said:

“Observing the first rule, the word ‘expenditures’ is broad enough to include every item of payment and every dollar of money paid out by the county, irrespective of the source from which the money is obtained. The proviso in the section under the third rule, excluding interest and redemption charges on bonds, would fall under the expression that the exclusion of one item of expenditure would include all other items of expenditure. Thus, the base established following this rule for determining the 5 per cent increase would include moneys received from the state derived from the gasoline tax, and apportioned to the respective counties according to the method provided by the legislature for use upon county roads. However, we think that both the general language used in the section and the rule relating to the proviso must give way to the enforcement of the intent or purpose sought to be accomplished, to-wit: The lessening of the burden of taxation upon the respective counties and its assumption by the state, and therefore that the section relates only to moneys derived from county taxation, and not from gasoline money distributed by the state. Gasoline taxes are in no sense of thé word county taxes.”

We understand it to be conceded by both parties that the San Francisco School District is to be considered a separate entity within the operation of said section of the Constitution and there is no intent on the part of respondents to exceed the limitation imposed upon the school revenues. If hardships should arise from -the enforcement of this restriction, the section provides a method of relief through the board of equalization or a vote of the people and, moreover, without further legislation the restriction will expire June 30, 1935. The petition must therefore be sustained.

Let the peremptory writ issue as prayed.

Curtis, J., Seawell, J., Spence, J., pro tem., and Waste, C. J., concurred.

Rehearing denied.


author: THE COURT.

text:
    [S. F. No. 15258.
    In Bank.
    September 14, 1934.]
    JAMES S. BLAINE, Petitioner, v. THE BOARD OF SUPERVISORS OF ALAMEDA COUNTY et al., Respondents.

      J. E. Hood for Petitioner.
    No appearance for Respondents.
   THE COURT.

Petition for writ of mandate to compel the respondent Board of Supervisors of Alameda County to refuse to certify the election of Chris B. Fox to the ofiice of justice of the peace of the city of Oakland (police judge), designated as office “No. One”, and to compel the county clerk of said county to refuse to issue to Chris B. Fox a certificate of his election to said office, and commanding the clerk to print on the ballot to be used at the ensuing general election the name of petitioner and the name of Chris B. Fox as candidates for said office.

Prior to the recent primary election, Howard L. Bacon, then the incumbent in said office, Chris B. Fox, and petitioner were candidates to be voted on at the primary election for said office. After the three persons named had qualified as candidates for the office, and after notice thereof was given and published, and the name of each had been printed on the sample and official ballots, as such candidates, as by law required, and thirteen days before the primary election, Judge Howard L. Bacon died from the effect of gunshot wounds inflicted by a disgruntled former client. The circumstances of the shooting and the death of Judge Bacon were given much publicity by and through the press. The fact of his death, therefore, was generally known throughout the city of Oakland.

At the primary election held in the city of Oakland, a total number of 69,152 votes was cast for the candidates for the office of justice of the peace of the city of Oakland (police judge) “No. One”, of which total vote Judge Bacon, though dead, received 9,759, James S. Blaine, petitioner herein, 25,956, and Chris B. Fox 33,437. From these figures the petitioner contends that there was no election at the primary, in that Chris B. Fox did not receive a majority of the votes cast for all the candidates at the primary, and that he is, therefore, entitled to be placed on the November ballot as a candidate for the office opposed to said Chris B. Fox. The Board of Supervisors of Alameda County, unless compelled otherwise, is about to and will declare said Chris B. Fox elected to said office of justice of the peace, and would certify such fact to the respondent county clerk, who, it is alleged, will issue to Chris B. Fox a certificate of his election to the office, and will not print the names of any candidates for said office on the ballot for the general election in November.

The Direct Primary Law (Stats. 1913, p. 1379, sec. 23), in so far as relevant here, provides that “in ease there is but one person to be elected at the November election to a judicial . . . office, any candidate who receives at the August primary election a majority of the total number of votes cast for all the candidates for such office shall be the only candidate for such office” at the ensuing election. Section 2% of article II of the Constitution, so far as is here pertinent, reads as follows: “Any candidate for a judicial . . . office who at the primary election shall receive votes on a majority of all the ballots cast for candidates for the office for which such candidate seeks nomination, shall be elected to such office.” The decision in this case, therefore, depends upon who may be considered a candidate and what ballots cast at the primary election may be counted.

It seems to be thoroughly settled that votes invalid for any reason are not to be considered in determining the number of votes cast. To this general effect see Murdoch v. Strange, 99 Md. 89 [57 Atl. 628, 629, 3 Ann. Cas. 66]; Catlett v. Knoxville etc. Ry. Co., 120 Tenn. 699 [113 S. W. 559, 562, 563]; State v. Clausen, 72 Wash. 409 [130 Pac. 479, 45 L. R. A. (N. S.) 714]. In the first ease cited, it was held that if the ballot contains the name of one who is known to be ineligible, the ballot cannot be counted, because the object of the ballot then would be not to elect but to prevent the election. A case which seems to be squarely in point is Madden v. Board of Election Commrs., 251 Mass. 95 [146 N. E. 280, 281]. It was held in that case that “one who has died before election cannot be a candidate for an office or elected to an office. Valid votes for election to an office cannot be cast for one who is no longer alive. It is equivalent to throwing away a vote knowingly” to cast it for one who has died. “It is of no more effect than to deposit a blank ballot or one marked with a fictitious or historic name. This is not a doubtful question. ’ ’ This same thought is expressed in State v. Frear, 144 Wis. 79 [128 N. W. 1068, 1072, 140 Am. St. Rep. 992], where it is said that in those cases in which “votes were cast for a candidate known to be dead or disqualified or for a fictitious person”, the great current of authority is “to the effect that such ballots are ineffectual for any person, and cannot be counted in determining the result of the election”; and, further, that “votes knowingly cast for a candidate who cannot possibly exercise the functions of the office if elected are thrown away, and it seems to us that this should be so”.

For the foregoing reasons, the petition for the writ is denied.


author: WASTE, C. J.

text:
    [L. A. No. 14697.
    In Bank.
    September 14, 1934.]
    LaVAUGHN L. MORTENSEN, Respondent, v. F. C. FAIRBANKS et al., Appellants.

      Paul Nourse and Forrest A. Betts for Appellants.
    Wheeler & Wackerbarth, Henry O. Wackerbarth and Henry E. Carter for Respondent.
   WASTE, C. J.

Judgment went for the plaintiff in this action to recover damages for personal injuries incurred as the result of a collision of automobiles at a five-point intersection of thoroughfares in the city of Los Angeles. The defendants have appealed.

There is evidence from which the jury might have reasonably concluded that plaintiff first entered the interseetion at a proper rate of speed and that the defendant, Cornelia Fairbanks, a minor, had entered the intersection at an excessive rate of speed and without otherwise exercising that degree of care essential to the proper operation of an automobile. However, there is also evidence tending to show that plaintiff while aware of defendant’s alleged careless and negligent approach to the intersection had continued in his endeavor to traverse the same and, in an attempt to avoid a collision, accelerated his automobile in the hope of passing beyond the path of defendant’s car. The effort was futile. Throughout the trial of the cause and upon appeal the defendants have urged that plaintiff was guilty of contributory negligence in the operation of his automobile and they point specifically to the asserted impropriety of plaintiff’s conduct in speeding up his car in an attempt to get beyond the path of defendant’s car. This, they contend, was not the course that a reasonable and prudent person would have pursued finding himself in a like position of imminent peril. On the contrary, they urge that a reasonable and prudent person under like circumstances would have undertaken to stop his car in the manner and within the distance which plaintiff testified he could have stopped, had he been so inclined, immediately prior to the collision. Defendants insist that the issue as to the reasonableness and prudence of plaintiff’s conduct in the face of imminent peril should have been submitted to the jury under proper instructions. They then refer to an instruction, given at the request of plaintiff, which, in effect, directed that if the jury should find from the evidence that the plaintiff had entered the intersection in a lawful manner and at a lawful speed, and after so entering had observed for the first time that he was placed in a position of apparent danger as a result of the defendant’s ear being operated in a negligent manner and at an unlawful rate of speed, and if they should find that in an effort to extricate himself from such danger the plaintiff "failed to act in such manner as a careful and prudent person would have done under the circumstances, then it was not negligence or contributory negligence on his part in driving ahead in an effort to get out of the path of the car driven by the defendant, Cornelia Fairbanks”.

Defendants contend that this instruction is prejudicially erroneous in that it informed the jury that one facing an imminent peril need not exercise reasonable care under the prevailing circumstances and also took from the jury the issue as to the propriety and reasonableness of plaintiff’s conduct under such circumstances.

We are of the opinion that the instruction is objectionable on both grounds. The rule is now well settled that a person suddenly confronted with an unexpected danger, without any fault on his part, is only required to use such means for avoiding the danger as would be used by a person of ordinary prudence under similar circumstances, and he is not held to that strict accountability which would require that, the course chosen be the most judicious one. (McPhee v. Lavin, 183 Cal. 264, 268 [191 Pac. 23]; McLaughlin v. Los Angeles Ry. Corp., 180 Cal. 527, 532 [182 Pac. 44] ; Tousley v. Pacific Electric Ry. Co., 166 Cal. 457, 463, 464 [137 Pac. 31] ; Carnahan v. Motor Transit Co., 65 Cal. App. 402, 411 [224 Pac. 143].) The reasonableness of his effort to avoid the injury after discovery of the danger is a question of fact for the jury, to be determined by them in view of all the circumstances. (Hoff v. Los Angeles Pac. Co., 158 Cal. 596, 601 [112 Pac. 53] ; Kearney v. Castellotti, 55 Cal. App. 541, 544 [203 Pac. 1029].)

The quoted portion of the instruction complained of informed the jury, in effect, that plaintiff could not be found guilty of contributory negligence even though in his effort to extricate himself from an apparent danger by driving ahead he had failed to act in such manner as a careful and prudent person would have acted under similar circumstances. This is obviously a misstatement of the law as to the care required of one confronted with a situation of imminent peril and, in addition, withdrew from the jury the issue as to the propriety and reasonableness of plaintiff’s conduct under the circumstances.

Having in mind section 4% of article VI of the Constitution, we are still unable to say that the error and prejudice created by this instruction was cured by certain general and correct statements of law appearing at the beginning thereof or by other instructions having to do with negligence generally. This was the only instruction given by the court below having to do with the degree of care required of plaintiff in his effort to extricate himself from a position of imminent peril. But two other instructions on the doctrine were given and each had to do with the care required of defendant, when in imminent danger. These latter instructions contained correct statements of the law, hut served only to emphasize the error and prejudice of the former by creating in the minds of the jurors the impression that a different degree of care was required of the plaintiff and defendant, respectively, when seeking to avoid an imminent peril. It is inconceivable that the jury was uninfluenced in an action in which contributory negligence was an issue by an instruction which erroneously and definitely indicated that plaintiff’s conduct was not negligent in character even though it failed to measure up to the degree of care required by the exigencies of the occasion.

For this reason, and without considering the propriety of another instruction objected to, the judgment must be, and it is hereby, reversed.

Curtis, J., Preston, J., Langdon, J., Seawell, J., Shenk, J., and Spence, J., pro tem., concurred.


text:
    [L. A. No. 14766.
    In Bank.
    September 24, 1934.]
    H. B. BUSING, as Administrator, etc., Respondent, v. GEORGE M. PIERSON et al., Defendants; CATHERINE A. McKENNA, Appellant.

      Catherine A. McKenna, in pro. per., for Appellant.
    Edwin J. Miller for Respondent.
   THE COURT.

Respondent moves. to dismiss an appeal from an order denying motion to retax costs on the ground that the transcript was not filed within the time required by law. When the motion to dismiss came on for hearing the transcript had been filed and appellant, by way of affidavit, averred that her delay in completing and filing the transcript was due principally to an attempt to consummate a settlement of the cause and thus obviate the necessity of preparing and filing the documents essential to the appeal. A counter affidavit filed by respondent denies material portions of appellant’s showing. In a supplemental affidavit appellant avers that the certificate of the clerk attached to the copy of the notice of motion served on her had to do with an appeal prosecuted by other parties to the litigation. In view of these matters appellant requests that she be relieved of her default and given reasonable time within which to file her opening brief.

When the motion came on to be heard the transcript had been on file for approximately one month. The delay in its filing has not retarded the determination of the appeal. On the showing made we are, therefore, inclined to relieve appellant of her default. Whenever possible we favor the disposition of a cause on its merits.

The motion to dismiss is denied and appellant is given twenty days within which to file her opening brief, respondent is given twenty days within which to reply thereto, and, if desired, appellant is given ten days within which to file her closing brief.


text:
    [L. A. No. 14507.
    In Bank.
    September 24, 1934.]
    H. B. BUSING, as Administrator, etc., Respondent, v. GEORGE M. PIERSON et al., Defendants; CATHERINE A. McKENNA, Appellant.
    Catherine A. McKenna, in pro. per., and J. Irving Mc-Kenna for Appellant.

      Edwin J. Miller for Respondent.
   WASTE, C. J.

Respondent moves to dismiss the appeal herein or to affirm the judgment appealed from, urging that nothing of merit has been advanced in support of a reversal.

The action was brought for the purpose of foreclosing two mortgages given to secure an indebtedness of $1600, evidenced by two promissory notes, each in the sum of $800. The property mortgaged consists of several parcels of real property. When recorded, the mortgages became first liens on the property. Plaintiff is the assignee of the notes and mortgages. The defendant, by mesne conveyances, became the owner of the mortgaged property. In due time plaintiff commenced this foreclosure action which, after trial, terminated in defendant’s favor principally upon the theory that the action was barred. This court reversed the judgment. (Dexter v. Pierson, 214 Cal. 247 [4 Pac. (2d) 932].) Upon the second trial judgment went for the plaintiff, whereupon the defendant McKenna prosecuted the present appeal. She urges fifteen grounds in support of a reversal. Comparison of these contentions with those urged by appellant in her brief upon the prior appeal in an effort to sustain a judgment favorable to her and to demonstrate the impropriety of a judgment for plaintiff, indicates that all but two of the points now raised were there advanced and, by reason of the reversal, necessarily determined to be without merit. The prior decision is now the law of the case as regards the several contentions urged on the former appeal and repeated herein.

Appellant advances but two other points worthy of consideration. Each is devoid of merit. The first has to do with the propriety of the trial court’s action in permitting plaintiff to file a supplement to the complaint in order to bring in certain other parties defendant whose claim of interest in the mortgaged premises came to light at the conclusion of the trial and before the signing and filing of the findings and judgment. These parties were thereafter found to have no interest in either the notes and mortgages or the mortgaged property. Judgment went against said new defendants and they have not appealed. Appellant is not in a position to complain. Her rights were in no way affected or prejudiced by the amendment.

Equally untenable is appellant’s claim that the court below was without jurisdiction to enter a personal judgment against her inasmuch as she had not assumed or agreed to pay the mortgages. The judgment does not purport to hold appellant personally liable for any portion of the mortgage debt. It merely decrees a sale of the properties to satisfy the mortgage liens and provides that in the event the proceeds from such sale are insufficient to also discharge the costs of suit the appellant shall pay such costs. There is, of course, no impropriety in holding the losing party answerable for the costs of suit.

In conclusion, we do not find that the court below abused its discretion in denying appellant’s motion for a new trial.

The motion is granted and the judgment is affirmed.

Curtis, J., Preston, J., Langdon, J., Shenh, J., Seawell, J., and Spence, J., pro tern., concurred.

Rehearing denied.


text:
    [Crim. No. 3725.
    In Bank.
    September 26, 1934.]
    THE PEOPLE, Respondent, v. MIKE LAMI, Appellant.

      No appearance for Appellant.
    U. S. Webb, Attorney-General, for Respondent.
   WASTE, C. J.

Appellant appeals from a judgment sentencing him to suffer the extreme penalty. The judgment is based upon the verdict of a jury finding him guilty of murder in the first degree without recommendation.

In an information filed by the district attorney of Sacramento County, appellant was charged with having murdered his estranged wife. Upon his arraignment he offered to plead guilty to a charge of manslaughter. To this the district attorney objected, whereupon appellant entered pleas of not guilty and not guilty by reason of insanity. Subsequently and before proceeding to trial appellant expressed a willingness to plead guilty to a charge of second degree murder. This offer was likewise rejected. Upon the impanelment of the jury and before trial, appellant withdrew his insanity plea. When the evidence was in and it had been fully instructed on the law the jury retired to deliberate upon its verdict. It returned to the courtroom in fifty-five minutes with a verdict finding appellant guilty as charged.

The evidence, which we shall briefly narrate, left no alternative for the jury but to find appellant guilty of murder in the first degree. The autopsy surgeon testified that the body of the deceased bore five lacerations or stab wounds and that she died as the result of hemorrhages from the heart and liver caused by one of these stab wounds.

The nine year old daughter of the deceased and appellant testified that on the day of the homicide she lived with her mother and brother; that at about 6:30 on the morning of April 3, 1933, she was awakened by her mother’s screams emanating from the bathroom; that she went to her and found her in the bathtub; that she saw her father in the act of picking something up; that the father immediately left without saying anything, and that she called her brother, who had been sleeping elsewhere in the house.

The deceased’s son, and stepson of the appellant, testified that during the month of April, 1933, and for approximately one year prior thereto, his mother and appellant had been separated; that during this period he (the witness) had been living with his mother and sister; that on the evening preceding the homicide he returned from work at about 12:30 o’clock; that his mother prepared food for him; that they retired shortly thereafter; that at that time there was no one in the house but the deceased, his sister and himself; that when summoned to the bathroom by his sister he found his mother there bleeding; that he did not see appellant at that time; and that the police were summoned and upon investigation found a knife under the bathtub. On cross-examination the witness testified that a week or two prior to the homicide the deceased and appellant had quarreled over the former “going with some other man”.

Several police officers were called to the stand. One testified that he arrived at the scene of the stabbing at about 7 A. M. and found a fourteen-inch butcher knife with blood on it under the bathtub. Another officer testified that he went to appellant’s place of residence about three hours after the homicide; that as he approached appellant the latter pulled a knife from his clothing and made two futile attempts to stab himself; that appellant stated to him that he had left his room at 3 o’clock on the morning of the homicide and took a butcher knife with him; that he waited until he saw a man leave the deceased’s residence; that he later gained entrance to her home and toward morning when she entered the bathroom he stabbed her. A third officer corroborated the testimony of the preceding witness.

A fourth police officer testified that shortly after being taken into custody the appellant freely and voluntarily made a statement to him, received in evidence upon stipulation of appellant’s counsel, in which he admitted having surreptitiously entered the deceased’s home, having quarreled with her over another man, and having stabbed her.

As additional evidence of motive the prosecution showed that several days prior to the homicide the deceased had the appellant arrested for failure to provide.

In his opening statement to the jury counsel for the defense stated that he did not expect a verdict of not guilty, but hoped for a manslaughter or second degree murder verdict. Appellant thereupon took the stand in his own behalf and again related the. quarrel he had with deceased over another man during the course of which he testified he “stuck her”. He also testified that he had been drinking immediately prior to the homicide and was a “little drunk”. On cross-examination he stated “sure I stabbed her”.

In opposition to the defense of intoxication two of the police officers testified that when they arrested appellant within three hours after the homicide they did not smell liquor on his breath, that he did not appear to have been drinking, and that “to all appearances he was sober”.

The case was submitted to the jury upon this showing. As we have already indicated, the jury had no alternative under the evidence and the law as expounded to them in the instructions but to find appellant guilty of murder in the first degree. The fact that appellant had previously partaken of intoxicating liquor does not exonerate him from the consequences of his unlawful acts. It is settled law that voluntary intoxication is never an excuse for crime. (Sec. 22, Pen. Code; People v. Burkhart, 211 Cal. 726, 730, 731 [297 Pac. 11].) The weight to be accorded to evidence of intoxication, and whether such intoxication precluded the accused from forming a specific intention to kill and murder, which intent is a necessary element in murder in the first degree, are matters essentially for the determination of the trier of the facts. (People v. Murphy, 221 Cal. 37 [32 Pac. (2d) 635]; People v. Yeager, 194 Cal. 452, 474 [229 Pac. 40].) The evidence offered by the defense does not show that appellant, by reason of the use of intoxicants, was so disordered mentally at the time of attack on the deceased as to preclude the resultant killing from being of that “wilful, deliberate, and premeditated” character designated in section 189 of the Penal Code as murder in the first degree. The jury might very reasonably conclude that appellant was not so inebriated as to be unable to appreciate the character and gravity of his deliberate and wrongful acts.

We have not been favored with briefs in this cause; when the cause was called, pursuant to notice, for argument at the May, 1934, calendar counsel for appellant was not in attendance at court. The matter was put over one day and the clerk directed to notify counsel to appear. When the cause was again called on May 2d counsel was given ten days within which to prepare and file his brief, the People to reply within ten days, and the cause to then stand submitted. Though the time has long since expired, no brief has been filed on behalf of appellant and no reply has been received to a letter directed by the clerk to appellant’s counsel on June 1st, in which the absence of the brief was mentioned and a query propounded “whether there is any reason why the cause should not be submitted without briefs at the present time”. No showing to the contrary having been made the cause was submitted on June 11th and is now before us for disposition.

The evidence so unmistakably points to the appellant as the perpetrator of an unjustified and deliberate murder that we experience no hesitancy in affirming the judgment on the record as it now stands. The record is singularly free of error. In fact, the objections to the introduction of evidence were comparatively few in number and were properly disposed of by the court below. The instructions were full and correct in their exposition of the law. Counsel for both sides conducted themselves with decorum and the record is destitute of , anything approximating prejudicial error.

The judgment and the order denying a new trial are, and each is, therefore, affirmed.

Curtis, J., Preston, J., ¡Shenk, J., Langdon, J., and Seawell, J., concurred.


author: CURTIS, J.

text:
    [Sac. No. 4781.
    In Bank.
    September 26, 1934.]
    ETHEL H. QUIGLEY, Appellant, v. EARL L. NASH, Administrator, etc., Respondent.

      J. E. Pardee for Appellant.
    R. M. Hardy for Respondent.
   CURTIS, J.

Action to recover on two claims presented against the estate of Paul A. Quigley, deceased. The plaintiff is the surviving wife of said deceased. Deceased, during his lifetime and at the time of his death, was engaged in the lumber and supply business in Susanville, Lassen County, in this state. His death occurred on May 31, 1930. The plaintiff on June 3d following took charge of said business, and on June 7th applied for letters of administration of his estate. On June 10th deceased’s place of business was destroyed by fire. There was no insurance carried on said business and in consequence of this loss the estate of decedent was rendered insolvent. On June 13th plaintiff waived her right to administer upon said estate in favor of Earl L. Nash, who was thereafter appointed, and qualified as administrator of said estate. Between the date when the plaintiff took charge of the business of her deceased husband and the destruction of his business by fire, plaintiff received the sum of $6,683.42, being proceeds of an insurance policy on the life of her husband which was her individual property. Prom this and other sources, she proceeded to pay certain obligations of her deceased husband, his funeral expenses, and certain expenses incurred in connection with the business left by said deceased. The money thus paid out by her is the subject matter of the two claims involved in this action. The administrator failed to act upon either of said claims, that is, he refused to allow or reject either of said claims and the plaintiff after the lapse of ten days from the presentation of said claims to said administrator instituted this action to recover the amounts claimed to be due as set forth in said claims.

The two claims will be referred to as claim A and claim B. Claim A was for money paid by the plaintiff to the Bank of Lassen County on two promissory notes, one for $1150 principal and $4.85 interest, and the other for $350 principal and $2.18 interest, totaling in all the sum of $1507.03. Claim B was presented as a preferred claim against said estate and was for money paid by plaintiff on account of various items which will be further explained. In his answer the defendant admitted all the material allegations of plaintiff’s first cause of action, which cause of action was based on claim A. As to the second cause of action, based upon claim B, the defendant denied each and every allegation thereof. As a further answer to said complaint, defendant set up a counterclaim against plaintiff’s demands consisting of two items, one for $718.99 and the other for $129.19, and prayed for judgment that plaintiff take nothing by her said action and that defendant recover the amount of his counterclaim. Upon the issues thus made, the cause proceeded to trial and resulted in the trial court directing a judgment in favor of the plaintiff allowing claim A in full as a general claim against said estate; allowing three items in claim B amounting to $157.46 as a preferred claim, and the balance thereof as a general claim against said estate less the amount of $16.50, which item was abandoned by plaintiff at the trial. The amount allowed as a general claim was $174.42 and consisted of five items in claim B. Upon defendant’s counterclaim, the court gave judgment in favor of defendant in the sum of $848.18, being the sum total of the two amounts of $718.99 and $129.19, claimed by defendant in his counterclaim. The court further directed that from this amount of $848.18, there be deducted the sum of $757.46, leaving the sum of $90.72, against which sum there should be further offset plaintiff’s costs incurred at said trial, and any dividends paid plaintiff on her general claim against said estate. The item of $757.46 requires some explanation. According to the finding, the probate court had made an order directing the payment to plaintiff of a family allowance from the estate of her deceased husband—$50 per month for one year, or a total of $600. The item of $757.46 is made up of this item of $600 family allowance and the said sum of $157.46, being that part of claim B which the court directed should be allowed as a preferred claim against said estate. Prom this order the plaintiff has appealed on the judgment roll. While no bill of exceptions, or reporter’s transcript has been prepared by means of which the evidence is brought before us, the findings are quite full and contain much evidentiary matter as well as the necessary probative facts of the case.

No question is made as to the propriety of the court’s order in allowing claim A as a general claim against said estate. We will, therefore, pass to claim B and particularly to those items which the court refused to allow as a preferred claim but directed their payment along with the claims of other general creditors of said estate. By holding that these items should be paid as general debts against said estate the trial court determined that plaintiff acted properly and legally in making payment of the several amounts represented by these items. The only question to determine is whether these claims constituted a general or a preferred claim against said estate. The first of these items consisted of four freight bills on merchandise ordered by and shipped to deceased prior to his death. The railroad company after the death of the deceased held the same and had a lien thereon for the freight charges. In order to obtain possession of this merchandise and to stop demurrage charges, the plaintiff paid said charges and had the merchandise delivered to deceased’s place of business. In doing so, plaintiff further paid out the sum of $8.50 for unloading a part of said merchandise which amount was also included as one of the items in claim B which the trial court refused to approve as a preferred claim against said estate. Another item in claim B which the court rejected as a preferred claim and allowed as a general claim against said estate was an installment payment upon a conditional contract of purchase of a Ford automobile which automobile was afterwards sold to the plaintiff and the estate received the full benefit of said installment payment made by plaintiff. There were also two items insignificant in amount, to which the court refused to give a preference over the general claims against said estate. They were incurred in the conduct of the business of the decedent after his death. The findings are very full regarding all these disputed items. They clearly show that all of these items cover expenditures which were necessary for the preservation of the property of said estate. Had they been made by an administrator regularly appointed to settle the estate, they would, undoubtedly, have been proper charges of administration to be paid in course of administration, without the necessity of any formal claim being presented for their allowance or payment, and before the payment of any general or preferred claim. In our opinion, all of these items amounting to $174.42 should be allowed as preferred charges against said estate. The total of these items and the items in claim B amounting to $157.46 which the court allowed as preferred charges, amounting in all to $331.88, should have been allowed and approved as preferred charges against said estate, being the total amount of claim B, less the item of $16.50, which the plaintiff abandoned at the trial of said action.

We now come to the items of set-off allowed by the court against plaintiff’s family allowance and her preferred claim. The first of these items concerns the sum of $718.99 which deceased had on deposit with the Bank of Lassen County at the time of his death. This sum was withdrawn by plaintiff on June 6th under an affidavit presented to the bank in accordance with section 1454 of the Code of Civil Procedure then in force. However, at the time plaintiff presented said affidavit to the bank and asked for the payment of said sum of $718.99 to her, the bank officials, as they had a legal right to do, refused to pay to her any part of said sum unless the plaintiff paid to the bank the amount due on the two promissory notes, held by the bank against decedent, and which form the basis of claim A hereinbefore referred to. Upon the plaintiff’s promise to pay said two notes personally out of her insurance money, the bank permitted her to transfer said sum of $718.99 to her individual account. Plaintiff received her insurance money three days thereafter and on the same day paid to the bank the full amount of principal and interest of said two notes, and also a third note for $150, which we will later again refer to. The bank had a perfect leggd right to credit on said notes the amount of said deposit of $718.99, but only waived its right temporarily upon condition that the plaintiff would pay the full amount of said notes upon receiving her insurance money. The receipt by plaintiff of said sum of $718.99 from the bank and her payment of the note three days later under a promise so to do can be regarded as but one transaction, the net result of which was that plaintiff in reality only paid to the bank the difference between the amount due on said two notes and said sum of $718.99, or the sum of $788.04. This amount of $718.99, therefore, should not be allowed as a set-off against the amount due plaintiff on her family allowance or against her preferred claim against said estate. In fairness to the estate, however, we think it should be deducted from the amount of $1507.03, the amount of the principal and interest due on said two notes at the time of their payment by plaintiff. This would leave the sum of $788.04 as the amount for which claim A should be allowed.

The situation regarding the item of $129.19 rests upon a somewhat different state of facts. At the time of his death, in addition to his individual account, the deceased with his wife maintained a joint account (without the right of survivorship) in said bank in the name of himself and wife and against which both of them drew cheeks. A short time prior to his death, the deceased and his wife borrowed from the bank on their joint note the sum of $150 and deposited the same in this joint account. As we have seen, there was in this account to their credit, at the date of decedent’s death, the sum of $129.19. At the time plaintiff had said sum of $718.99 transferred to her individual account, she asked the bank to make the same disposition of this sum of $129.19. The bank, upon the express promise of plaintiff to pay said note for $150, changed this joint account of deceased and his wife by erasing the deceased’s name therefrom and thereby transforming it into the individual account of plaintiff, and three days afterwards, when plaintiff received her insurance money she paid said '$150 note held by the bank. As a result of this transaction, the plaintiff paid to the bank something like $20 over and above the amount of said deposit of $129.19. In these circumstances, it is clear that defendant is not entitled to any set-off whatever arising out of the application of this $129.19 on said $150 note. On the other hand, plaintiff would have been entitled to recover from the estate the amount paid by her in payment of said $150 note in excess of said sum of $129.19, had she included said excess in any claim filed by her against said estate. As she failed to make claim for this amount, she is not entitled to recover the same. The defendant, however, is not entitled to recover or claim as a set-off said sum of $129.19, or any part thereof.

It follows from these conclusions that plaintiff is entitled to judgment against defendant in the sum of $788.04, which is the sum of $1507.03, being the amount of the principal and' interest on the two promissory notes set out in claim A, less the sum of $718.99, and that said amount be paid as a general claim against said estate in due course of administration. Plaintiff is further entitled to judgment against defendant in the sum of $331.88 upon said claim B, and that said amount be paid as a preferred claim against said estate in due course of administration and before any of the general claims against said estate are paid. It is not necessary to make any order regarding the sum of $600, due plaintiff as a family allowance. The court has already made an order for her allowance in this amount which is unaffected by the judgment to which she is entitled in this action.

We see no reason for prolonging this litigation by reversing the judgment and remanding the case to the trial court for further proceedings. Under the power now given this court we may modify the judgment to conform to the findings, and as modified the judgment may be affirmed. To do so may also require a modification of the conclusions of law. It is therefore ordered that in place of the conclusions of law made by the trial court the following are substituted as conclusions of law in said action: “That plaintiff is entitled to recover the sum of $788.04 upon said Claim A, as a general claim against said estate, payable in the due course of administration. That plaintiff is entitled to receive the sum of $331.88 upon said Claim B, as a preferred claim against said estate to be paid in due course of administration, together with costs.” It is further ordered that the judgment of the trial court be modified by striking out all that part of said judgment following the words, “It is hereby ordered, adjudged and decreed as follows,” and by inserting in lieu thereof the following: “That plaintiff have and recover from the defendant Bari L. Nash, administrator of the estate of Paul A. Quigley, deceased, the sum of $788.04, and that the same be paid as a general claim against said estate in due course of administration. Furthermore, that plaintiff have and recover against said defendant the sum of $331.88, and that the same be paid as a preferred claim against said estate and before any of the claims of general creditors are paid, in due course of administration, and that plaintiff have and recover her costs, amounting to the sum of $15.25.”

As so modified the judgment is affirmed, the appellant to recover her costs on appeal.

Preston, J., Shenk, J., Seawell, J., Langdon, J., and Waste, C. J., concurred.


author: LANGDON, J.

text:
    [Crim. No. 3743.
    In Bank.
    September 28, 1934.]
    THE PEOPLE, Respondent, v. EULOGIO B. SISSON, Appellant.
    J. E. Ebert and J. R. Lazarus for Appellant.
    U. S. Webb, Attorney-General, and Seibert L. Sefton, Deputy Attorney-General, for Respondent.
   LANGDON, J.

The defendant in this case was charged with murder. He pleaded not guilty, and not guilty by reason of insanity. The jury brought in a verdict of guilty of murder in the first degree, without recommendation, and in the trial on the second plea, found him sane at the time of the offense. Judgment of death was thereafter rendered, and a motion for new trial was denied. This appeal followed.

The guilt of the defendant is conclusively established. On the morning of November 7, 1933, he walked into the police station in Marysville, California, and told the officer on duty that he had “killed a man”. The officer went with him to a rooming house where defendant pointed out the mutilated body of a woman. It appeared that she was a prostitute, that defendant had stayed with her the previous night, and had stabbed her to death. Defendant on the stand testified that he had given her a great deal of money and that she had promised to marry him. This was, it appears, the cause of a quarrel.

The appeal raises but one point, that the introduction of photographs of the partially nude body of the deceased was prejudicial error. The photographs were competent to show the position and condition of the body, and although obscene and inflammatory matter should, in general, be kept from the jury, they were admissible in this ease for the reason we have mentioned. It is true that the introduction of this evidence was unnecessary, and the practice of bringing such things to the attention of the jury in eases where no useful purpose is served thereby has been heretofore disapproved by this court. (See People v. Burkhart, 211 Cal. 726 [297 Pac. 11].) However, in the instant case the proof of guilt is conclusive, and the sufficiency of the evidence is not questioned.

The judgment and order denying a new trial are affirmed.

Shenk, J., Seawell, J., Preston, J., Curtis, J., and Waste, C. J., concurred.


text:
    [L. A. No. 14359.
    In Bank.
    October 1, 1934.]
    JEANETTE P. PHILPOTT, as Administratrix, etc., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

      Edwin J. Miller for Petitioner.
    Everett W. Mattoon, County Counsel, and S. V. 0. Prichard, Deputy County Counsel, for Respondents.
   PRESTON, J.

By this proceeding in prohibition we are required to declare the nature of the two causes of action pleaded in the case of John Philpott, Plaintiff, v. Broadway State Bank et al., Defendants, No. 292646, now pending in the Superior Court of the County of Los Angeles. Petitioner asserts that the cause is one in equity of which the superior court alone has jurisdiction and that unless it is restrained by this writ, said superior court will attempt to divest itself of jurisdiction of the cause by holding that the action is one at law, involving a sum less than $2,000, to wit: $625, cognizable alone by the municipal court of said county.

The far-reaching importance of this inquiry is seen when it is remembered that the jurisdiction of both the appellate and the trial courts is directly affected by the answer thereto. The right of trial by jury and, to a certain extent, the right of attachment may also be affected.

It is almost superfluous to preface this discussion with the statement that although we have but one form of action, and practically but one forum, under our system of state jurisprudence, yet in applying the relief allowable we must adhere to the distinctions commonly accepted as existing between actions at law and actions in equity. In DeWitt v. Hays, 2 Cal. 463, 469 [56 Am. Dec. 352], the court uses this language: "The legislature in providing that ‘there shall be but one form of civil action’, cannot be supposed to have intended at one fell stroke to abolish all distinction between law and equity, as to actions. Such a construction would lead to infinite perplexities and endless difficulties. The innovation extends only to the form of action, and the pleadings, while the technicalities of pleading have been dispensed with; and the plaintiff need only-state his cause of action in ordinary and concise language, whether it be in assumpsit, trespass, or ejectment, without regard to the ancient forms; still the distinction between those actions has not been abolished, but remains the same. So cases legal and equitable have not been consolidated, and though there is no difference between the form of a bill in chancery, and a common law declaration, under our system, where all relief is sought in the same way from the same tribunal; the distinction between law and equity is as naked and broad as ever. To entitle the plaintiff to the equitable interposition of- the Court, he must show a proper case for the interference of a Court of Chancery, and one in which he has no adequate or complete relief at law.”

See to the same effect Hallidie v. Enginger, 175 Cal. 505, 506 [166 Pac. 1], where the court said: “The next general consideration is that legislatures in establishing the simplified code pleading and in thus abolishing the forms of common-law actions did not destroy, and even if it had desired tiould not destroy, the essential characteristics of those actions so long as the common law remains the basis of our jurisprudence.” In this connection we should repeat also that the common law of England is, except where modified by Constitution or statute the rule of decision in this state. (Pol. Code, sec. 4468; Martin v. Superior Court, 176 Cal. 289 [168 Pac. 135, L. R. A. 1918B, 313].)

We are thus brought to consider the criteria by which we may distinguish between an action at law and one in equity. The forum, form of action, and mode of proof are no longer factors in view of the already noted court system and procedure. In reality the distinction between the two classes of remedies is more or less arbitrary and groundless. It is well said also that the courts of equity are reaching into new fields of operation and the courts of law are encroaching upon the former territory of the courts of equity. This thought was expressed by Lord Bedesdale as quoted in the case of Spect v. Spect, 88 Cal. 437, 442 [26 Pac. 203, 22 Am. St. Rep. 314, 13 L. R. A. 137], as follows: “The distinction between strict law and equity is never in any country a permanent distinction. Law and equity are in continual progression, and the former is constantly gaining ground upon the latter. A great part of what is now strict law was formerly considered as equity, and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.” See Spect v. Spect, supra, and Barbour v. Flick, 126 Cal. 628, 634 [59 Pac. 122].

We must therefore find the distinction between the two forms of action in their history and development rather than in their intrinsic differences in theory or philosophy. The two forums were set up under the English system to complement each other in the field of remedial justice, actions at law occupying' a portion of the field; and actions in equity, supplying the defects in the legal system, occupied the remainder of the field. In its last analysis, therefore, the difference between the two actions lies largely in the mode of relief granted and to determine whether the action is of one type or another, one must of necessity resort to the apposite English law on the subject. Mr. Blackstone (Cooley’s Blackstone, 4th ed., vol. II, pp. 1181, 1182, sec. 436) in this connection, says: “The rules of decision are in both courts equally apposite to the subjects of which they take cognizance. . . . The difference between courts of law and equity.—Such then being the parity of law an$I reason which governs both species of courts, wherein (it may be asked) does their essential difference consist 1 It principally consists in the different modes of administering justice in each; in the mode of proof, the mode of trial and the mode of relief. ...” Therefore, to give a proper classification to a cause of action we should seek to find its counterpart in the history of the English law in the light of such modifications thereof as have taken place under our own system.

This brings us to the counts of the complaint here in question. They are two. Count one declares that plaintiff paid to the defendants $625 on account of a contract to purchase stock of defendant bank to be thereafter issued by it; that plaintiff later discovered that the stock, if and when issued, would be worthless and that the financial condition of the bank and other material facts and circumstances had been fraudulently represented to him, giving in detail the nature of the misrepresentations made, and closing with the allegation that said fraudulent representations were the sole inducing cause of the agreement to purchase and the payment of said sum; finally pleading that plaintiff had rescinded said transaction in the manner provided by the code. The second count is merely one of the common counts for money had and received, to wit: indebitatus assumpsit. The prayer is for return of the $625 to plaintiff, with interest and costs, “and for such other and further relief as may he just and equitable”.

Count one, of course, contains allegations of fraud but courts of law, as well as courts of equity, have jurisdiction to give relief in certain specified cases of fraud. (Fish v. Benson, 71 Cal. 428, 435 [12 Pac. 454].) Under the peculiar facts in this case a judgment for plaintiff in the sum of $625, with interest "and costs, would fully satisfy his demands. In short, he asks no relief that a court of law may not in all respects give him. This, of itself, would seem sufficient to deny plaintiff a place in a court of equity. In Morrison v. Land, 169 Cal. 580, 586, 587 [147 Pac. 259], the court said: “Passing without discussion other requisites, it is elementary that where, as here, the primary right of a party is legal in its nature, as distinguished from equitable, and one for which the law affords some remedy, as here damages by way of compensation for breach of contract, a proper exercise of the equitable jurisdiction will not give equitable relief in any case where the legal remedy is full and adequate and does complete justice. No principle of equitable jurisprudence is more firmly established than this. ... In so far as cases of the character of the one before us are concerned, the very basis of the granting of equitable relief is the conclusion in view of the circumstances of the particular case that full and adequate compensation cannot be had at law. Certainly no case has been cited to us, and we know of none, in which such relief has been given where it was apparent that full and adequate compensation can be given at law.” (See, also, 10 Cal. Jur., p. 465, see. 7.) A judgment of rescission in this cause would be entirely superfluous. (Prewitt v. Sunnymead Orchard Co., 189 Cal. 723, 732 [209 Pac. 995].)

If the action is not one in equity, it follows, of course, that it is an action at law. It seems material, however, at this time to determine under what common-law species of action this complaint should be classified. It is not a case of express promise, as an action in debt; although it is for a sum certain, for it lacks the element of an express promise to pay. Neither is it an action in which there is. in fact an implied promise to pay, for there is no privity of contract from which to imply such a promise. In reality, it is an action in which the law, in order to prevent the unjust enrichment of defendants from the property of plaintiff, itself implies a promise to repay the sum demanded. In other words, it is an action in assumpsit upon a promise implied by law. That is, it is a case where the plaintiff has not elected to sue for damages, general or special or both, which he may have suffered from the tort inflicted upon him by defendants; likewise it is not a case where the plaintiff is seeking the application off equitable remedies to redress his grievances. All these elements, which may have been shown by appropriate allegations for such relief, are conspicuously absent. Plaintiff apparently is content to merely seek a return from defendants of money given them, with interest, forgetting and foregoing all other elements of injury.- Is it not plain, therefore, that he has waived the tort of defendants and has come into court relying solely upon the promise created by law to return to him the consideration paid upon the contract ?

Count two is one of the common counts for money had and received, commonly styled indebitatus assumpsit. We then have two actions for assumpsit, one on a special count and one on a common count. These counts may properly be united in the same action. (5 C. J. 1399.) A case where a special and a common count in assumpsit for fraud were united .in one action is First Nat. Bank v. Steel, 136 Mich. 588 [99 N. W. 786].

The action of assumpsit, in its development, had an interesting but stormy career at the common law. Although in existence for some years previous to that time, it came into prominence following the decision in Slade’s Case in 1603 (Coke’s Rep., vol. 2, p. 505; 2 Harvard Law Review, p. 16). It gradually gained prominence and widened in scope until 1760 when Lord Mansfield, in the case of Moses v. Macfarlan (2 Burr. 1005, English Reports, Pull Reprint, King’s Bench Book 26, vol. 97, p. 676), described its function as follows: “This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund,-.it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the statute of limitations, or contracted during his infancy, or to the extent of principal and legal interest upon a usurious contract, or, for money fairly lost at play: because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or implied); or extortion; or oppression; or an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under those circumstances. In one word the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.”

Quoting the above, Mr. Holdsworth in his work on the History of English Law, volume 8, page 97, uses this language: “It was thus in the action of indebitatus assumpsit that the larger part of our modern law of quasi-contract has originated.”

■See, also, Cooley’s Blackstone, fourth edition, volume II,page 975, section 162, where it is said: “It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where any undue advantage is taken of the plaintiff’s situation.” Also, see 1 Chitty on Pleading, section 100.

Clark on Contracts, fourth edition, Hornbook Series, pages 699, 700, dealing with the subject of quasi-contracts, uses the following language: “A frequent illustration of a quasi-contractual obligation of this kind arises where a person obtains another’s money by wrongful or fraudulent means. Where one person has wrongfully taken another’s money, or has taken his property and converted it into money, the latter has a right of action ex delicto for the wrong done to him, as by an action of trespass or trover, or by an action on the case for the fraud. He is not always restricted, however, to an action ex delicto for the specific wrong, but may in general waive the tort, and sue in assumpsit for the money as for money received for his use. . . . Where a person steals another’s money or property, or obtains it by false pretenses, the fact that a crime has been committed will not prevent a civil action by the person injured. He may sue the thief in tort, or he may elect to sue in assumpsit as for money received for his use. The same is true in any case in which one person, by means of trespass, fraud, or other tortious means obtains another’s money.” This doctrine is also expressly indorsed in Hallidie v. Enginger, supra (175 Cal., at p. 508) : “In some instances the action on implied contract does not in truth rest upon contract at all. In others, the contract may lie at the base of the wrong or may have enabled the perpetrator to have accomplished his wrong. Thus, where A delivers goods to B at B’s request, even though B never meant to pay for them, the law erects the legal fiction that he promised to pay, and he will not be heard to deny it in the action for quantum valelat in. assumpsit. But upon the other hand, if B stole A’s watch, A could treat the theft as a contract of sale and sue in like manner ex contractu, though in fact there was no foundation whatsoever for the fiction other than the need of broadening A’s remedies. (Downs v. City of Baltimore, 111 Md. 674 [19 Ann. Cas. 644, 41 L. R. A. (N. S.) 255, 76 Atl. 861].) Or again, if B, in the employ of A, misappropriates his money or property, while A could sue ex delicto for the wrong, he could, on the other hand, waive the tort and sue, again depending upon the nature of the property converted, either for the value, for goods sold and delivered, or for money had and received. (Citing cases.) ” See Page on Contracts, volume 3, page 2510, section 1473, also pages 2671-2673, section 1548, where it is said: “If money has been paid under such contract, the right of the party defrauded to waive the tort and recover such payment on the theory of an implied contract, in general assumpsit, is very generally recognized. It is not necessary that the fraud should be the sole cause of the payment. It is sufficient if the payment would not have been made if it were not for such fraud. . . . The right to recover in assumpsit assumes that on discovering the fraud the party defrauded elects to disaffirm the express contract. ...”

Authorities in support of the prevalent use of this form of action in the courts of the common law could be multiplied indefinitely, but we will close this branch of the discussion by a quotation from Professor Ames in volume 2 of the Harvard Law Review, page 69: “ The main outlines of the history of assumpsit have now been indicated. In its origin an action of tort, it was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a fictitious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded Debt, became concurrent with Account, with Case upon a bailment, a warranty, and bills of exchange, and competed with Equity in the case of essentially equitable gw<m-eontracts growing out of the principle of unjust enrichment. Surely it would be hard to find a better illustration of the flexibility and power of self-development of the Common Law.”

Considerable confusion now exists among the bench and bar as to the proper classification of this cause of action, due to the fact that the courts of law administering this relief apply equitable principles and to the further fact that certain expressions found in court opinions and textbooks, on first impression, might seem to classify it as an action in equity. But from what has been said it is clearly one of a special class of cases limited to a specific set of facts which could by supplementary allegations be made an out and out action in equity or else an action ex delicto at law. Such words as “equitable relief” and “equitable action”, found in court opinions, have added to this confusion. For example, in the case of Stone v. Superior Court, 214 Cal. 272 [4 Pac. (2d) 777, 77 A. L. R. 743], is found this statement referring to the complaint, that it “ . . . clearly and unmistakably set forth a cause of action for equitable relief ...”

The following authority would seem to effectually dispel all doubt in this connection:

“Money Had and Received; General nature of right. If A receives money which belongs to B, under circumstances which give A no right thereto, but which bind A on principles of justice and fairness to repay such money to B, the common law allowed B to sue as on contract, although there was no express contract and no real implied contract, in order to prevent A’s unjust enrichment at B’s expense. This principle has survived in our law, and an action as upon contract will lie for money had and received wherever one person has received money which belongs to' another, and which in equity and good conscience’, or in other words, in justice and right, should be returned. Since the contract alleged in the plaintiff’s complaint is often purely fictitious, the plaintiff’s right to recover in a contract does not depend upon any principles of privity of contract between the plaintiff and the defendant, and no privity is necessary. The plaintiff’s right to recover is governed by principles of equity, although the action is one at law.” (Page on Contracts, supra, vol. 3, pp. 2510-2512, sec. 1473.)

In the case of Chapman v. Forbes, 123 N. Y. 532 [26 N. E. 3], decided in 1890, the question at issue was whether the action for money had and received was one in equity or one at law. Holding that it was an action at law, the court said: ”... the action has been frequently stated to be an ‘equitable one’; that is, one depending upon general principles of equity for the maintenance of the plaintiff’s claim to the money. . . . But, although the action may be generally described as one of an equitable character, it never was in any aspect a suit in equity. . . . That an action is of an equitable nature does not make it an action in equity. . . . When, in an action for money had and received, all the facts show that the plaintiff is ex aequo et bono entitled to recover, his right to recover is a legal one, and maintainable in a court of law. ...”

In Davison v. West Oxford Land Co., 126 N. C. 704, 709 [36 S. E. 162], the court said: ”... And, where one party has received money to which another is entitled, the law presumes a contract if it is necessary to do so to enable the party entitled to recover the same. Board of Education v. Town of Henderson, 126 N. C. 689 [36 S. E. 158], decided this term. This entitles the party having the right to the money, to an action of debt, indebitatus assumpsit, which, though an action at law, was equitable in its nature. It has been styled ‘an equitable action on the law side of the docket’. But it arises only where the money was received and held under such circumstances that the law will imply the contract. Where it would be inequitable and unconscionable for the party receiving the money to hold it, amounting to a moral fraud to do so, it will usually be so held. Where one person receives money belonging to another, and wrongfully refuses to pay it over, the action will lie.”

In Steuerwald v. Richter, 158 Wis. 597 [149 N. W. 692], it was said: “The complaint is for money had and received. Although the action is legal in form, the right to recover is in its nature equitable, and can only be enforced where the defendant has received money which in equity and good conscience he ought to pay to the plaintiff. ’ ’

In Board of Highway Commissioners v. City of Bloomington, 253 Ill. 164, 174 [97 N. E. 280, Ann. Cas. 1913A, 471], the Supreme Court of Illinois said: “The action of assumpsit, under the common counts for money had and received, is an appropriate remedy to enforce the equitable obligation arising from the receipt of money by one person which belongs to another and which in equity and justice should be returned. (Gaines v. Miller, 111 U. S. 395 [4 Sup. Ct. 426, 28 L. Ed. 466] ; Pauly v. Pauly, 107 Cal. 8 [40 Pac. 29, 48 Am. St. Rep. 98]; Brown v. Woodward, 75 Conn. 254 [53 Atl. 112] ; Wilson v. Turner, 164 Ill. 398 [45 N. E. 820].) The action is in form ex contractu, but the alleged contract being purely fictitious, the right to recover does not depend upon any principles of privity of contract between the plaintiff and the defendant and no privity is necessary. (2 Page on Contracts, sec. 789, and cases there cited.) The right to recover is governed by principles of equity, although the action is at law. The action is maintainable in all cases where one person has received money or its equivalent under such eireumtanees that in equity and good conscience he ought not to retain it and which ex aequo et bono belongs to another. (Jackson v. Hough, 38 W. Va. 236 [18 S. E. 575] ; Merchants’ & Miners’ Nat. Bank v. Barnes, 18 Mont. 335 [45 Pac. 218, 56 Am. St. Rep. 586, 47 L. R. A. 737].)”

Confusion has also arisen respecting the form of action under count one in that there are found therein allegations of a rescission of • the agreement by the party injured and notice thereof given to the defendant by the plaintiff himself pursuant to sections of the Civil Code of this state on that subject. It is undoubtedly true that a litigant may invoke the power of a court of equity to effect a rescission which has not theretofore been made. This is especially provided for by Civil Code, sections 3406-3408, inclusive. But where the plaintiff himself has pursued the method provided by sections 1688-1691 of the Civil Code to effect a rescission of the contract he may come into a court of law for all the relief that court is competent to give, and in the instance where he merely asks for a return of the consideration parted with by reason of the fraud, mistake, failure of consideration or -any other set of facts authorizing rescission, he is entitled to the action of assumpsit. Indeed, section 1712 of said code seems to provide for a legal action in a case such as we have here under consideration. The rule that it is not necessary to ask the aid of a court of equity to effect the rescission where the rescinding party has followed the statutory procedure, finds abundant support in California decisions.

In this connection we approve the opinion of Judge Bishop in the case of Jensen v. Harry H. Culver & Co., 127 Cal. App. (Supp.) 783, 785, 786 [15 Pac. (2d) 907], where many of the authorities are cited as follows: “There can be no doubt that one having a right to rescind need not turn to the courts to have the rescission accomplished; he may effect it by his own action. (Prewitt v. Sunnymead Orchard Co., [1922] 189 Cal. 723 [209 Pac. 995], McNeese v. McNeese, [1923] 190 Cal. 402 [213 Pac. 36], Maxwell v. Jimeno, [1928] 89 Cal. App. 612 [265 Pac. 885], and Ito v. Watanabe, [1931] 213 Cal. 487 [2 Pac. (2d) 799].) The reluctant response of him as to whom the contract was rescinded may require the help of a court to secure to him, who rescinded, the relief to which he has become entitled. This relief may be such that only a court of equity can furnish it. For examples, see Mesenburg v. Dunn, (1899) 125 Cal. 222 [57 Pac. 887], and Rocha v. Rocha, (1925) 197 Cal. 396 [240 Pac. 1010], The relief sought may, however, be the return of personal property. In such case the action commonly known as claim and delivery is appropriate. (McNeese v. McNeese, supra.) This, of course, is an action at law. (See Faulkner v. First Nat. Bank, [1900] 130 Cal. 258 [62 Pac. 463].) If money alone has been transferred by the rescinding party, upon the rescission the law implies a promise to return it, which becomes the basis for a common-law action of money had and received. (Rand v. Columbian Realty Co., [1910] 13 Cal. App. 444 [110 Pac. 322] ; Winkler v. Jerrue, [1912] 20 Cal. App. 555 [129 Pac. 804] ; Fontaine v. Lacassie, [1918] 36 Cal. App. 175 [171 Pac. 812] ; Bridges v. Fisk, [1921] 53 Cal. App. 117 [200 Pac. 71] ; Firpo v. Pacific Mut. Life Ins. Co., [1926] 80 Cal. App. 122 [251 Pac. 657].)” See, also, Hull v. Ray, 211 Cal. 164, 167 [294 Pac. 700].

To the above should be added the further statement that the plaintiff may not only waive the tort and sue in indebitatus assumpsit for the money consideration parted with but, where personal goods have been thus converted, he may also have the common-law writ (quantum valebat) for the value of the goods so converted. (Bechtel v. Chase, 156 Cal. 707, 711 [106 Pac. 81], citing Roberts v. Evans, 43 Cal. 380; Lehmann v. Schmidt, 87 Cal. 15 [25 Pac. 161], and Chittenden v. Pratt, 89 Cal. 178 [26 Pac. 626].) Indeed, under the facts here present, no rescission would seem to be required other than the initiation of the action itself as plaintiff has received nothing of value belonging to the defendants (S. C. V. Peat Fuel Co. v. Tuck, 53 Cal. 304; Richter v. Union Land & Stock Co., 129 Cal. 367 [62 Pac. 39]), and, moreover, the common-law action of debt might lie also in such case.

The above discussion disposes of all the material elements of the subject under review except the question whether or not such a cause of action sounds in contract or in tort. It would seem clear, however, from what has already been pointed out that it is a cause of action, which although originally sounding in tort, has now become fully ex contractu by a process of slow but steady development. Quoting from Holdsworth’s History of English Law, volume 7, page 441: “The earliest of these actions of the ease to acquire a distinct character was the action of assumpsit. We have seen that it became the contractual action of the common law; and that its clear separation from the delictual actions was marked by the decision, arrived at in the sixteenth century, that the maxim actio personalis moritur cum persona did not, as a rule, apply to it. On the other hand, we have seen that it could be and was used as an action in tort. And we shall see that its extension, at the end of the seventeenth century, to cover a part of the sphere occupied by trover; and its extension, at the end of the eighteenth century, to enforce the repayment of money where it was equitable that money should be repaid, created the law of quasi-contract, and thus gave it in many cases a semi-proprietary character. But though assumpsit thus retained certain of its delictual characteristics, though in its application to the law of quasi-contract it acquired certain proprietary characteristics, its contractual quality was always its most distinct feature. Of all the actions on the case it departed the most markedly from its delictual origin.”
Quoting also from Holdsworth’s History of English Law, volume 3, page 451: “It was Slade’s Case which fixed the character of the action of assumpsit; for, as we have seen, it enabled it to absorb the greater part of the sphere occupied by the action of debt, and to become a remedy for the breach of purely executory contracts. From henceforward it was the contractual action of the common law. ...”

We therefore hold this action to be one at law and one, by reason of the amount involved, of which the municipal court alone has jurisdiction.

The only further matter requiring discussion is that in the court below when the trial judge had signified his intention to hold that the action was one in law and not properly within the jurisdiction of the superior court, but within the jurisdiction of the municipal court, the petitioner offered to amend his complaint to show the ease was one where plaintiff should be given punitive damages in the sum of $1500, which amendment, if allowed, would have increased the ad damnum clause to a sum in excess of $2,000, and the cause would then be within the jurisdiction of the superior court regardless of the nature of the action. The court, in the exercise of its discretion, denied the application to amend in this particular. On the face of the proffered amendment, which asked nearly three times the amount in suit, the court was justified in holding it was clearly an attempt to retain the cause in the superior court without regard to the substantiality of the amendment. In this ruling the court did not err.

The alternative writ of prohibition is discharged.

Waste, C. J., Spence, J., pro tem., Langdon, J., and Seawell, J., concurred.

Curtis, J., and Shenk, J., dissented.