author: SHENK, Acting C. J.

text:
    [S. F. No. 16280.
    In Bank.
    August 15, 1939.]
    JESSE W. CARTER, Petitioner, v. COMMISSION ON QUALIFICATIONS OF JUDICIAL APPOINTMENTS et al., Respondents.

      M. Mitchell Bourquin, Herbert Erskine, Edward F. Tread-well, Edward Hohfeld and Max Radin for Petitioner.

      Albert A. Rosenshine, Randolph V. Whiting and John L. MeNab, as Amici Curiae, on Behalf of Petitioner.
    Earl Warren, Attorney-General, and Robert W. Harrison, Chief Deputy Attorney-General, for Respondents.
   SHENK, Acting C. J.

In this proceeding in mandamus the petitioner seeks to compel the respondents, constituting the Commission on Qualifications of Judicial Appointments, to consider and act upon the matter of his qualifications for the office of Associate Justice of the Supreme Court of the State of California. The cause is submitted on the allegations of the petition and on a general demurrer interposed by the respondents as a return to the alternative writ.

The petitioner is and has been for some twenty-six years an attorney at law, admitted to practice before all the courts of this state. On January 17, 1939, he was duly elected state senator from the fifth senatorial district, comprising Shasta and Trinity Counties, for the term ending January 6, 1941.

On July 15, the Governor appointed the petitioner to the office of Associate Justice of the Supreme Court to fill the vacancy caused by the death of Mr. Justice Emmet Seawell on July 7. Under date of July 15, the Governor submitted the name of the petitioner to the Commission on Qualifications of Judicial Appointments for confirmation pursuant to section 26, article VI of the Constitution. Thereafter and under date of July 24, 1939, the commission informed the Governor in writing that it would “not consider the name of Senator Jesse W. Carter”, and would “not undertake to investigate his qualifications because of the fact that he is a state senator, and, therefore, ineligible for the office of Associate Justice of the Supreme Court of the State of California by virtue of section 19, of Article IV of the Constitution”.

In view of the refusal of the respondent commission to consider and pass upon his qualifications for the office to which he has been appointed, the petitioner seeks the writ, not to compel the commission to confirm his appointment, but to compel it to exercise the function and jurisdiction conferred upon it by section 26 of article VI of the Constitution,

At the outset it should be noted that the right to hold public office, either by election or appointment, is one of the valuable rights of citizenship. Mr. Mechem in his work on Public Officers, section 67, refers to the right to hold a public office under our political system as an “implied attribute of citizenship”. The exercise of this right should not be declared prohibited or curtailed except by plain provisions of law. Ambiguities are to be resolved in favor of eligibility to office. (People v. Dorsey, 32 Cal. 296.) The petitioner relies on these well-established rules in support of his position.

On the other hand, the right to occupy a public office, once assumed, should not be left in a state of uncertainty. The undoubted attitude of the commission is that the question of the eligibility of the petitioner to assume and occupy the office to which he has been appointed is of such- grave import that it should be determined in an appropriate judicial proceeding. No suggestion has been made that the present proceeding is not appropriate to that end.

The commission urges the ineligibility of the petitioner because of the provisions of section 19 of article IV of the Constitution as amended in 1916, and section 26 of article VI, adopted in 1934. The history of those and other related provisions of our organic law, together with the practical and contemporaneous construction placed thereon, will be helpful in a solution of the problem presented.

The Constitution of 1849 contained the following provision (sec. 20, art. IV) : “No senator, or member of the assembly, shall, during the term for which he shall have been elected, be appointed to any civil office of profit under this state, which shall have been created, or the emoluments of which shall have been increased, during such term, except such offices as may be filled by election by the people. ’ ’

This section was readopted in the Constitution of 1879, but was designated as section 19 of the same article in the new Constitution. The language of this section without the exception was plain and certain and could admit of no interpretation. Its import was clear, to the effect that members of the legislature were ineligible for appointment to the prohibited offices. But the inclusion of the exception had the effect of injecting doubt and uncertainty as to the limitation thereby placed upon the operation of the language which preceded it. Did the exception mean that the language preceding it should not apply to the appointment of a legislator who should run and be elected to another elective office during the term for which he had been elected a member of the senate or the assembly? Or did the exception mean that the prohibition should not apply to the appointment of a legislator to an elective office, that is, an office normally filled by election by the people? The question, otherwise stated, is whether a legislator may be appointed to an elective office and, if so, is the office of Associate Justice of the Supreme Court an elective office?

No judicial interpretation of the admittedly uncertain meaning of the constitutional provision has been available, but the question of its proper construction was from time to time officially submitted to the attorney-general of this state for his opinion. In 1911, he advised the Governor that a legislator was ineligible for appointment to the office of member of the railroad commission, an appointive position newly created by constitutional amendment having its origin in the legislative resolution adopted during his term. In 1913, the attorney-general advised the chief executive of the state that said section 19 did not render a member of the legislature ineligible for appointment to the office of a judge of the superior court. Under this advice, members of the legislature, in numerous instances, were appointed to elective positions such as members of boards of supervisors and judges of the superior court.

In 1916, section 19 of article IV was amended to read as follows: “No senator or member of assembly shall during the term for which he shall have been elected, hold or accept any office, trust or employment under this state, provided, that this provision shall not apply to any office filled by election by the people. ’ ’

It will be observed that the section was amended in two particulars,—first, the positive prohibition was enlarged to include in the prohibited class all offices under this state, whereas prior to the amendment the prohibited class included only offices “created, or the emoluments of which have been increased, during” the term of the legislator; and, secondly, the language of the exception or proviso was changed from “except such offices as may be filled by election by the people”, to “provided that this provision shall not apply to any office filled by election by the people.”

In 1917, the attorney-general was called upon to advise the chief executive as to the effect of the amendment on the eligibility of members of the legislature for appointment to public office. He was of the opinion that the amended section enlarged the number of offices in the prohibited class, but that the continued prohibition applied only to appointive offices; that the change in phraseology in the exception or proviso resulted in no change in meaning; that both before and after the amendment the effect of the exception and proviso was to describe the kind or character of the offices removed from the prohibitory clause and not to describe the method by which the offices would be obtained. He called attention to the fact that prior to the amendment members of the legislature had been appointed superior court judges and had discharged their duties as such without any question having been raised as to their eligibility. He further stated: “This was a practice presumably familiar to the framers of the new amendment, and if it had been the intention to prevent in the future this practice, it would seem that language clearly prohibiting the same would have been adopted, and such language not having been written into the provision it must be assumed that it was not intended to change the practice in this regard. ’ ’

It is true that in his opinions on the subject the attorney-general often expressed some doubt as to what judicial construction ultimately would be placed on the language of the exception in the original section and of the proviso in the amendment, but Ms advice down through the years, indeed for more than a quarter of a century, has been uniform to the effect that the exception in the one case and the proviso in the other had the effect of removing elective offices from the prohibited class. It should be stated, however, that, in 1938, he declined to advise with certainty that it was within the power of the Governor to appoint a member of the assembly to a vacant judgeship. His reluctance to advise more definitely apparently resulted' from the belief that the then members of the Commission on Qualifications, or some of them, entertained and had expressed a doubt as to the eligibility of a member of the senate for appointment to the Supreme Court. But as late as June 7, 1939, he officially advised that a member of the legislature was not ineligible for appointment to the office of judge of the superior court. Since the adoption of section 26 of article VI in 1934, the opinion of the legislative counsel of this state has been requested and has been given on the question of the eligibility of a member of the legislature for appointment to the office of judge of the superior court and also to the office of Associate Justice of the Supreme Court. After considerable research as reflected in his opinion the answer on each occasion was in favor of eligibility.

The contemporaneous interpretation thus placed on eoncededly vague and uncertain provisions of the Constitution is referred to not as of controlling significance, but to indicate that under familiar rules of construction such practical interpretation, extending over a long period of time, is entitled to great weight. (Riley v. Thompson, 193 Cal. 773 [227 Pac. 772].) The maxim of the civil law to that effect is incorporated in the Civil Code which declares in section 3535: “Contemporaneous exposition is in general the best.” And the rule is applicable alike to the interpretation of the organic law as to a statute. (Knowles v. Yates, 31 Cal. 82, 83; 23 Cal. Jur., p. 776; 5 Cal. Jur., p. 603.)

The argument in favor of the amendment of 1916, sent to the electors of the state in the ballot pamphlet, contained the following pertinent statement: ‘1 The proposed law to render a member of the legislature ineligible to any office under the state, other than an elective office, during the term for which he shall have been elected, is therefore in the interest of good government and should be adopted.” This argument may be resorted to as an aid in determining the intention of the framers of the measure and of the electorate when such aid is necessary. (People v. Ottey, 5 Cal. (2d) 714, 723 [56 Pac. (2d) 193].)

Commenting on the effect of the prohibitory clause of section 19, as amended in 1916, the District Court of Appeal said in Chenoweth v. Chambers, 33 Cal. App. 104, at page 106 [164 Pac. 428]: “The amended section is much more sweeping than its progenitor, for it applies to all offices, other than elective offices. ...”

With reference to the same amendment it was said in Satterwhite v. Garrison, 34 Cal. App. 734, at p. 736 [168 Pac. 1053] : “Upon the merits of the whole case we are of the opinion that the intent and purpose of the framers in proposing, and of the people in adopting, this constitutional provision was the preclusion of members of the law-making branch of the state government from seeking or holding any appointive office or employment in or under any department or subdivision of the general state government, by the seeking or holding of which his independent action as such member of the legislature might be in any wise influenced or affected.” This language was quoted with approval in Leymel v. Johnson, 105 Cal. App. 694, 696 [288 Pac. 858].

The words “elective” and “appointive” in the foregoing quotations have been italicized for the purpose of emphasizing the fact that when the amendment of 1916 was proposed and when its language has been under observation by the courts, it has generally been considered, and apparently never contended otherwise, that appointment to appointive offices only was prohibited and that appointment to elective offices was not within the prohibition.

Independently of the argument to the voters and contemporaneous construction, the meaning of section 19 of article IV, both before and after the amendment of 1916, would appear to be in accordance with the interpretation contended for by the petitioner. If the section as originally adopted had any other meaning than that the exception removed elective offices from the operation of the prohibitory clause, the inclusion of the exception was meaningless and surplusage, for the section would then mean that legislators were ineligible for appointment except when they obtained their offices by election. There is, of course, a well-defined and fundamental difference between the acquisition of an office by appointment on the one hand, and by election on the other. An office is acquired by appointment in the exercise by the appointing authority of a delegated power. An office is acquired by election as the direct choice of all the members of the class or body from whom the choice can be made. Some meaning must be ascribed to the excepting clause and when we seek to ascertain it, the reasonable, if not the only logical conclusion is that the exception had the effect of describing the kind or character of the offices thereby removed from the operation of the prohibitory clause and not the method by which the offices were to be filled.-

If by the 1916 amendment it was intended to prohibit entirely the appointment of legislators to public office, it would have been a simple matter to employ language to express that intent. Since no substantial change was made, no clear intent to disqualify a legislator appears and, under the established rules of construction above referred to, the doubts must be resolved in favor of eligibility.

Either approach to a solution of the question leads to the conclusion that under section 19 of article IV of the Constitution, a legislator may be appointed to that kind of an office which is normally “filled by election by the people”. The office of Associate Justice of the Supreme Court is such an office unless the adoption of section 26 of article VI of the Constitution in 1934 had the effect of changing it from an elective to an appointive office. The answer on this phase of the question necessarily depends on the language used in section 26, together with the terms of related sections of the same article.

The pertinent provisions of section 26 are as follows: “Within thirty days before the sixteenth day of August next preceding the expiration of his term, any Justice of the Supreme Court, Justice of the District Court of Appeal . . . may file with the officer charged with the duty of certifying nominations for publication in the official ballot a declaration of candidacy for election to succeed himself. If he does not file such declaration the Governor must nominate a suitable person for the office before the sixteenth day of September, by filing such nomination with the officer charged with the said duty of certifying nominations.

“In either event, the name of such candidate shall be placed upon the ballot for the ensuing general election in November in substantially the following form:

“No name shall be placed upon the ballot as a candidate for any of said judicial offices except that of a person so declaring or so nominated. If a majority of the electors voting upon such candidacy vote ‘yes’, such person shall be elected to said office. If a majority of those voting thereon vote ‘no,’ he shall not be elected, and may not thereafter be appointed to fill any vacancy in that court, but may be nominated and elected thereto as hereinabove provided.
“Whenever a vacancy shall occur in any judicial office above named, by reason of the failure of a candidate to be elected or otherwise, the Governor shall appoint a suitable person to fill the vacancy. An incumbent of any such judicial office serving a term by appointment of the Governor shall hold office until the first Monday after the first day of January following the general election next after his appointment, or until the qualification of any nominee who may have been elected to said office prior to that time. . . .
“In addition to the methods of removal by the Legislature provided by sections 17 and 18 of Article IV and by section 10 of this article, the provisions of Article XXIII relative to the recall of elective public officers shall be applicable to justices and judges elected and appointed pursuant to the provisions of this section so far as the same relate to removal from office.”

We have put the words “election”, “elected” and “elective” in italics to indicate the uniformity with which the framers of the section referred to the office of Justice of the Supreme Court an an “elective” office or an office to be filled by “election”. The new method of electing Justices of the Supreme Court and Justices of the District Courts of Appeal has brought about an important change in the method' of their selection. But they have continued to be elective officers as distinguished from appointive officers of the state. The adoption of section 26 of article VI has not repealed by implication or otherwise the following provisions of section 3 of the same article: “The Chief Justice and the Associate Justices shall be elected by the qualified electors of the state at large at the general election, at the time and places at which state officers are elected. . . . ” The method of filling vacancies by appointment by the Governor under the new procedure is not materially different from the old. The method of nomination has been materially changed, and the candidacies for the office have been restricted to persons who occupy the offices or to persons who have theretofore been nominated by the Governor. But the names of the candidates continue to be “placed on the ballot for the ensuing general election”, and the electors vote on the question whether such candidate shall “be elected to the office”.

The language of the new section 26 and of the older sections of the same article which were left undisturbed indicate without question that the Justices of the Supreme Court hold and continue to occupy their offices only at the will of the electorate. Resorting again to the argument sent to the electors we find that when section 26 was submitted to a vote of the people of the state, the argument in favor of adoption stated: “Under the proposed plan the ultimate control would remain in the hands of the people.” The fact that the new method of election may make for more permanence in tenure, as was clearly intended by the framers of the new section and of the electorate in adopting it, affords no foundation for the conclusion that the electors have relinquished the right to say by their votes whether a candidate should or should not be retained in office. When the vote is cast on that question in favor of a candidate he is “elected” the same to all intents and purposes as under the old method. A vote for or against a proposition has been held to be an election thereon. (State v. State Board of Canvassers, 78 S. C. 461, 59 S. E. 145 [13 Ann. Cas. 1133, 14 L. R. A. (N. S.) 850].) The same effect should be accorded to the result of such a vote on the continuance in office of a candidate.

Let the peremptory writ issue as prayed.

Curtis, J., Edmonds, J., Pullen, J., pro tem., and Spence, J., pro tem., concurred.


source: Caselaw Access Project

author: PULLEN, J., pro tem.

license: Public Domain

text:
    [S. F. No. 16224.
    In Bank.
    August 16, 1939.]
    DEPARTMENT OF MOTOR VEHICLES OF THE STATE OF CALIFORNIA, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION and WILLIAM Y. DINAN, Respondents.

      Earl Warren, Attorney-General, Robert W. Harrison, Chief Deputy Attorney-General, Harold W. Conklin, Deputy Attorney-General, Carroll S. Bucher and B. E. Pemberton for Appellant.
    Everett A. Corten and Frank T. 0 ’Neill for Respondents.
    Fred M. Cross, as Amicus Curiae, on Behalf of Respondents.
   PULLEN, J., pro tem.

A proceeding to annul an award of the Industrial Accident Commission against the Department of Motor Vehicles.

William Y. Dinan, while a member of the state highway patrol and engaged in active law enforcement, suffered, in the course of his employment, a gunshot wound. For approximately twenty weeks Dinan was temporarily disabled and on leave of absence without loss of salary, as permitted by section 4800 of the Labor Code. At the end of the leave, the injured employee returned to active duty and shortly thereafter applied to the Industrial Accident Commission for permanent disability rating. After a hearing, the commission found the employee had sustained a permanent disability amounting to 24% per cent, and awarded him the sum of $2,475, less the sum of $457.14 which he had received on account of temporary disability. (See. 4661, Labor Code.)

This award is here questioned by the petitioner upon the ground that the Industrial Accident Commission has exceeded its jurisdiction in granting compensation to a member of the highway patrol for permanent partial disability after the employee had returned to work and was receiving full salary.

The rule is well recognized that, generally, an employee is entitled to an award for permanent disability without regard to the receipt of wages after the injury. That the inability to return to reemployment is not a test for an allowance of permanent disability is determined by the Labor Code itself. Section 4660 thereof provides that, in determining the percentage of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his age at the time of such injury. In Frankfort General Ins. Co. v. Pillsbury, 173 Cal. 56 [159 Pac. 150], it was stipulated that the injured employee, a carpenter who had lost the greater part of the index finger of the left hand, could do and was doing the same quantity and quality of work as prior to the injury, and was receiving the same rate per hour as wages. The commission held it was not limited by the stipulation in making an award of compensation, and found the disability to be 20% per cent, and awarded some $1200 to the employee.

In Postal Tel. etc. Co. v. Industrial Acc. Com., 213 Cal. 544 [3 Pac. (2d) 6], the rule is announced that wages earned by and paid to an injured employee subsequent to an award of compensation for a permanent disability could not be credited against such award, holding, in accordance with the rule followed in several industrial states, that the disability referred to in the statute was not such disability as impaired present earning power only, but embraced any loss of physical functions which detracted from the former efficiency in the ordinary pursuits of life. It is the prospective loss of future earning power under the existing handicap of physical impairment that is to be considered; and ability to do the exact work formerly done by the employee is not the sole measure of disability.

Inasmuch as state employees generally or employees in industrial life are not deprived of compensation for permanent injuries under the circumstances here existing, the rule should be the same for members of a law-enforcement branch of our government, unless some express statutory prohibition is found.

Petitioner' claims that inasmuch as this employee was a member of the state highway patrol it finds such prohibition in section 4804 of the Labor Code, which, it urges, prevents an award to a state highway patrolman concurrent with the payment of salary. The effect of this contention would, in fact, go to the extent of preventing a highway patrolman, under any circumstances, receiving a permanent disability industrial award.

Petitioner points out that prior to the adoption of the Labor Code in 1937, the Workmen’s Compensation Act, section 9a, set apart the members of the highway patrol who were engaged in active law enforcement from all other employees of the state, placing them in a separate classification and granting them various special benefits, among others full salary for a period of not exceeding one year following an injury. Upon the enactment of the Labor Code, this provision of the Compensation Act was adopted in substance and became section 4800 of the Labor Code.

Sections 4801 and 4802 have no bearing upon the present problem, dealing, as they do, with the proper agency to determine the nature of the injury and the right to hospital and medical expenses. Section 4803 of the Labor Code provides: “Whenever such disability of such member of the California Highway Patrol continues for a period beyond one year, such member shall thereafter be subject, as to disability indemnity to the provisions of this division other than section 4800, during the remainder of the period of such disability or until the effective date of his retirement under the State Employees’ Retirement Act, except that such compensation shall be paid out of funds available for the support of the Department of Motor Vehicles, and the leave of absence shall continue.”

Section 4804, wherein petitioner claims to find the prohibition against awarding the injured highway patrol officer permanent indemnity, reads as follows: “No disability indemnity shall be paid to said member concurrently with wages or salary payments or for time after the effective date of retirement under the State Employees’ Retirement System.” In construing this section, petitioner contends that “no disability indemnity” unequivocally means compensation for either temporary or permanent disability, and that to sustain the award would defeat the sole purpose of this section.

The point is not without merit, but, having in mind the direct admonition of section 3202 of the Labor Code that “the provisions of Division IV (which includes the sections here under consideration) and Division V of this code shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment”, and the evident purpose of the law to protect and compensate those members of the highway patrol whose principal duties consist of active law enforcement, we should adopt, if possible, that construction of section 4804 which would enable the injured officer to receive the benefits of the act rather than accept a literal construction which would tend to deprive him of all disability indemnity, and not only render meaningless the language of section 4803, but also provide a rule for highway officers different from that applicable to others.

Examining section 4804, not as it stands alone, but in its relationship to the entire subject-matter, we find section 4800 permits an injured officer to receive a leave of absence for a year on full pay. Section 4801 imposes upon the Industrial Accident Commission the duty of determining whether or not such disability arose in the course of duty. Section 4802 grants certain medical, surgical and hospital benefits. Section 4803 provides that if the injury, either temporary or permanent, referred to in section 4800, extends beyond a period of one year, such member shall receive such disability indemnity benefits as may be provided elsewhere in division IV of the Labor Code, as long as the disability shall continue, or until retirement. It also grants him, if necessary, a leave of absence beyond one year without pay. Division IV, which by reference is made a part of this section, embraces the whole subject of workmen’s compensation and insurance, with more than 2800 sections covering various matters pertaining thereto, and particularly section 4650 et seq. dealing directly with disability payments. Section 4804 provides ‘ ‘ no disability indemnity shall be paid . . . concurrently with . . . salary payments, or for time after . . . retirement”. This section appears to have been drafted to prevent the payment of both salary and indemnity during the one-year period, or payment for both indemnity and retirement. The admonition that no disability indemnity shall be paid concurrently with salary seems, under the circumstances, to refer solely to the one-year period when the highway patrol officer is on leave due to injury, and on full salary which is expressly paid in lieu of disability payments.

Nowhere in this section can be found an intent to abrogate the general rule in compensation cases that, where an employee has received a permanent disability but is thereafter able to return to work and earn a salary for such service rendered, he is entitled to receive both disability indemnity payments and salary. Such a rule is recognized by section 4803, and it was not the purpose of the legislature, we believe, to change it by the very general language found in section 4804.

As it is a cardinal rule of construction that words must be given such interpretation as will promote rather than defeat the general purpose and policy of the law, we cannot believe the legislature intended that interpretation to be placed upon section 4804 for which petitioner contends, thereby entirely nullifying and making meaningless the provisions of section 4803, which directly make applicable after one year the general provisions of the Labor Code relating to disability indemnity payments.

This conclusion is in accord with such general rules of statutory construction as “where the language of a statute is reasonably susceptible of two constructions, one of which in application will render it reasonable, fair and harmonious with its manifest purpose, and another which would be productive of absurd consequences, the former construction will be adopted.’’ (23 Cal. Jur., sec. 140, p. 766); and “if certain provisions are repugnant, effect should be given to those which best comport with the end to be accomplished and render the statute effective, rather than nugatory’’. (23 Cal. Jur., sec. 133, p. 759.)

If it was the purpose of the lawmakers to recognize and compensate a California highway patrol officer for the hazardous duties he is called upon to perform, surely the legislature did not intend to deprive him of disability indemnity, as would result if the rule contended for by petitioner were to prevail.

It is claimed by petitioner that such officer is amply provided for under the Retirement Act (Deering’s Gen. Laws, 1937, Act 5847, p. 2751), and is therefore not entitled to permanent disability indemnity under the Workmen’s Compensation Act. However, the Retirement Act cannot, in the absence of express language, control the provisions of the Compensation Act, and, furthermore, we do not find the patrol officer is in any favored position. If such officer leaves the service of the state, he also loses all rights to benefits under the Retirement Law, except as to his own contributions thereto, and, upon severance from state service, the highway patrolman who has sustained a permanent disability would then, if petitioner is correct, receive nothing for such handicap after his temporary disability had ceased. We cannot believe that the legislature intended such a result.

If, in reading section 4804 of the Labor Code, there is kept in mind the provisions of section 4803 of the same code, the meaning becomes clear that no disability indemnity shall be paid to a patrol officer concurrently with salary, except where such officer has sustained a permanent partial disability and has returned to work and is rendering services for the salary received. Such is the reasonable construction, and conforms to the spirit and intent of the Workmen’s Compensation Law and is in consonance with the provisions of the Retirement Act.

The award is affirmed.

Houser, J., Shenk, J., Curtis, J., Spence, J., pro tem., and Edmonds, J., concurred.

Rehearing denied.


author: THE COURT.

text:
    [L. A. No. 16480.
    In Bank.
    August 17, 1939.]
    VELNA L. TEATER et al., Appellants, v. GOOD HOPE DEVELOPMENT CORPORATION (a Corporation) et al., Respondents.

      Newby & Newby, Dee Holder and Nathan Newby for Appellants.
    Best & Best and Eugene Best for Respondents.
   THE COURT.

The appeal in this case was originally heard by the Fourth District Court of Appeal. Following a decision by that court, a petition for hearing by this court was granted. Consideration of the several points of law that have been presented by the respective parties to the litigation has resulted in a conclusion that the appeal was correctly decided by the District Court of Appeal. Its opinion rendered therein, which was prepared by Mr. Justice Griffin of that court, is therefore adopted by this court as its own. It is as follows:

“Velna L. Teater was the owner of certain real property known as the ‘Good Hope Mine’, situated in the county of Riverside. M. M. Teater is the husband of Velna L. Teater. On June 1, 1933, these appellants, as husband and wife, entered into a written contract for the conditional sale of this property to Clifford H. Marker. This contract was duly recorded September 13, 1934. Under its terms, among other things, it was provided that Marker should pay to appellants for this property the sum of $55,000, payable $3,500 upon the execution of the contract and the balance in specified monthly instalments; that title to the property should remain in Mrs. Teater until the full purchase price should be paid, at which time she would be required to deed the property to Marker. A given percentage of all ore was to be reserved to the seller, together with a 10 per cent royalty. Marker was to have possession of the property and retain it so long as he should ‘fully perform each, every and all the terms, covenants and conditions of the within contract’. It was further provided that he should pay all bills and prevent any and all liens of mechanics and materialmen from being filed against the property; that time should be the essence of the agreement, and upon the violation of any of the covenants or conditions of the contract it should, at the option of the seller, terminate ; that upon such violation the seller should be released from all obligations in law and equity, to convey the property, and the property ‘and the appurtenances, and all buildings and other improvements shall become forfeited to second parties’; that 30 days’ notice should be given to Marker of the sellers’ intention to exercise the option to terminate; that he should, upon the termination of the contract for ‘any cause’ execute and deliver to seller, Velna L. Teater, a quitclaim deed; and deliver to her quiet and peaceable possession of the premises. Paragraph 15 of the contract provides that upon its termination, ‘all machinery and tools and other unattached and movable equipment which may be placed upon said premises by first party may be removed therefrom within forty-five days after the termination of the within agreement, provided, however, that no such tools or machinery shall be removed while first party may be in any manner indebted to second parties for past instalments due under the obligation of the within contract, and such machinery and equipment shall be deemed security for the payment of such instalments’.
“After execution of the contract Marker entered into possession of the premises. Thereafter the contract was assigned to respondent Good Hope Development Corporation (hereinafter referred to as the Development Corporation), which proceeded to attempt the mining of the property and the performance of the terms of the contract. The assignment of this contract was followed by a period of expansive and expensive development which resulted in placing on the property by the corporation of certain improvements, buildings, machinery and equipment. In the year between June, 1933, and June, 1934, the respondent Dill Lumber Company furnished certain lumber and materials to the Development Corporation and at different times the respondent Bank of Perris loaned money to it. At the time of the assignment and subsequent thereto, Marker was the secretary oí the Development Corporation.
“On July 1, 1935, an instalment of the purchase price in the amount of $5,000 became due and payable and the purchasers were unable to make this payment. On July 3, 1935, appellant Mrs. Teater served respondents Marker and the Development Corporation with notice to pay this instalment within 30 days or she would terminate the contract if the payment was not made.
“On August 1, 1935, the respondent Development Corporation filed in the superior court of Riverside county a petition under the 'California State Moratorium Act (Stats. 1935, p. 1208). A hearing was had upon the petition and on November 14,1935, that court made an order granting it nine months ’ extension of time to make the instalment payments on the purchase price under the contract.
“Under the terms of this order the Development Corporation was permitted to remain in possession of the property and to mine it in a certain way and appellants were prevented from taking possession of the property or terminating the contract, ‘while said petitioners are complying with the terms and conditions of this order, and until the further order of this court, but in no event not later than February 1, 1937’. Respondent Development Corporation was also required to pay to appellants $250 per month upon the instalments of the purchase price, 8 per cent interest upon the unpaid instalments and an 8 per cent royalty. The purchasing parties remained in possession of the property, by virtue of this order, until June 30, 1936.
“While in possession of the property under this order, the purchasers failed to comply with its conditions and terms in many respects. They failed to pay appellants the1 monthly instalments of $250 for all months subsequent to March, 1936. They failed to pay the royalties due for the months of May, June, and July, 1936. They failed to pay their laboring men and in June, 1936, were indebted to them in the sum of $900. Marker advised the unpaid laborers to file claims for liens against the property, which they did. The Development Corporation ceased actual work on the mine by June 11, 1936. On June 18, 1936, the purchaser was indebted to appellants under the terms of the contract (but not under the court order) in an amount in excess of $18,000 for instalments past due, and about $400 for royalties which they failed to pay over to appellants. On June 18, 1936, there was located on the premises a building, certain machinery, and equipment consisting in general of a mill erected upon the property by the purchaser and his assignee, together with the necessary machinery and equipment used in milling the ore obtained from the property.
“Plaintiffs and appellants in their complaint allege that they are entitled to the possession of the following described property and seek return thereof: 1 windows from corrugated iron mill building, 1 jaw crusher—14 in., 1 conveyor belt— 14"—200 ft., 1 marathon rod mill—4 x 8, 1 feeder and y2 HP motor, 9 amalgamation plates, 1 classifier, 1 Torster-fiotation bell, 1 Plato concentrator, 1 flotation blower, 1 regrind barrel, 1 reagent feeder, 1 25-HP motor, 2 5-HP motor, 1 50-HP motor, 3 3-HP motor, 1 motor for regrind barrel, 2 15-HP motors in supply house, all machinery belts and pulleys, 1 electric hoist and cable, 1 Ingersoll-Rand compressor, 3 ore lears, 1 skip, 2 Denver hammers, 1 Cochise-stoper, 1 Cameron pump, 1 Ingersol-Rand motor pump, 1 American centrifugal pump, 1 circular saw and mantle and motor, 1 iy2 HP motor on reservoií, 115-HP motor in mine, 140 HP motor on compressor, 1 Auto-Car dump truck, 1 Kissel truck % in. drill steel, shovels, picks, around 1200 ft. of track, estimate of about 1500 ft. of 1 in.—1 y2 in.—2 in.—2 in.—2% in. and 2 in. pipe, 1 blacksmith shop, complete; following from assay office: 1 pr. button balances, 1 pr. pulp balances, 1 steel safe, 1 assay furnace, 1 Braun pulverizer, 1 jaw crusher, 1 muffle burner, 1 2 or 3 HP motor and belt, 3 tables, cooking utensils, dishes, 1 General Electric refrigerator, 6 steel cots and mattresses, 1 3-burner coal-oil stove, 2 tables, 2 benches, . . . ’ (The method of the affixation of this machinery and equipment will be discussed later.)
“All of respondents, by their various answers, admit that the sheriff, Carl Rayburn, by virtue of the writ of attachment, took into his possession on June 24, 1936, the property ‘described in plaintiff’s complaint’ and ‘sold the same’ under the writ of execution to the Dill Lumber Company, which now has possession thereof; that at the time of the taking, the Good Hope Development Corporation was in possession of said property.
“Commencing on June 18, 1936, and continuing over the week-end holidays, the above-described equipment was claimed to have been removed from the premises by direction of Mr. Marker and stored in warehouses in the town of Perris for the Development Corporation. These warehouses were under the control of the Bank of Perris. There is a dispute as to the reason for the removal of the property. Marker testified that he was fearful that the equipment might be stolen while the mine was shut down; that he discussed the matter of the removal of the machinery with Teater.
“Appellants claim that they had no notice that the equipment was to be removed from the mining property. Bemoval of these fixtures and equipment was completed on Sunday, June 21, 1936. On the evening of this day Mr. Teater claims that by chance he visited the mining premises and saw the last of the machinery being removed and that he registered an objection with the person hauling the same away and was told that the only thing that could stop the removal would be a court order. On June 22, 1936, Mr. Teater and one of his attorneys went to look for the machinery and upon inquiry of a Mr. Stewart, president of the respondent bank, they were told that he (Stewart) had arranged to pay the man for the work in removing the machinery to his warehouses. Stewart, however, denies such arrangement at the time stated. Teater then informed Stewart that the contract between Marker and Mrs. Teater prohibited the severance and removal of the machinery and that the removal thereof was wrongful.
“On June 23, 1936, an action was commenced in the name of the Dill Lumber Company against the Good Hope Development Corporation wherein the plaintiff sought to recover, in its first cause of action, the sum of $773.68 for materials supplied to Marker, James M. Hyde and Fred E. Keller, between the dates of July 22, 1933, and June 21, 1934. In its second cause of action it sought to recover the sum of $2,400 upon the note of the Development Corporation, assigned to it by the respondent Bank of Perris. In its third cause of action it sought to recover the sum of $1,450, on account of a bill for legal services claimed to have been rendered to the Development Corporation by Alford P. Olmstead and assigned to the Dill Lumber Company by said attorney. It is to be noted that Mr. Olmstead was attorney for the Development Corporation and Mr. Marker during the transactions related. A fourth cause of action sought recovery of the sum of $100, being a bill for legal services claimed to have been rendered by the respondent Eugene Best, which bill was also assigned to the plaintiff in said action. Best made this charge for representing the Development Corporation in the moratorium proceedings wherein the contract of purchase above mentioned was thoroughly discussed. As a fifth cause of action the plaintiff sought to recover the sum of $2,633.42 for an alleged debt owing from the Development Corporation to Maude C. Marker, the mother of respondent Clifford H. Marker. On June 23, 1936, a writ of attachment was, at the direction of Mr. Best, attorney for the Dill Lumber Company, issued in that action and levied upon the machinery stored in the warehouses. The defendant Development Corporation filed no answer to the complaint but permitted its default to be taken and a judgment entered in the action for the full amount claimed in the prayer. No third party claim was filed by appellants but on June 27, 1936, the respondents Marker, Good Hope Development Corporation, Dill Lumber Company, Best, Olmstead, Mrs. Maude Marker and the Bank of Perris were notified in writing of the claim of the appellants that the removal of the machinery from the mining property was wrongful and a demand was made upon each-of them to return the machinery or relinquish their claims thereto.
“On July 11, 1936, an execution sale was held at the direction of Mr. Best, upon the default judgment and the property was purchased at the execution sale by the Dill Lumber Company. Best, Olmstead and Marker attended the sale.
“Mr. Stewart of the Bank of Perris testified that no consideration was paid by the Dill Lumber Company for the note, but that it was understood in reference to the assigned claims that if the attachment was made, the Lumber Company would sell the machinery and divide the proceeds among the various claimants named in the attachment suit.
“On July 17, 1936, the appellants notified the Development Corporation and Marker that they were in default under the contract of purchase and demanded a performance thereof within 30 days or, upon failure to perform, a forfeiture of the contract. Those respondents failed to comply with the terms of the contract and on August 24, 1936, they were served with formal notice of the forfeiture. At the time this last notice was served, the nine months’ period of extension granted by the moratorium order had expired.
“On June 30, 1936, appellants filed this action alleging generally that they were the owners and entitled to the possession of the property described and that the defendants wrongfully and without right ‘severed from said real property and removed therefrom all of said property’; that all of them were in wrongful possession of the property and were detaining the possession of it against the will of plaintiffs who were entitled to a return of the property or in lieu thereof, damages, both compensatory and exemplary.
“The respondents answered and denied generally and specifically the allegations of the complaint, except as hereinafter mentioned. Respondent Dill Lumber Company filed a cross-complaint to quiet title to the property sold under the attachment proceeding.
“The trial court found that ‘It is not true that said property (fixtures) or any part or portion thereof is now or ever was affixed to the real property known as the Good Hope Mine hereinbefore described, so as to become a part thereof. ’
“Appellant attacks this finding and claims that it is not supported by and is contrary to the evidence.
“There is some conflict as to the facts in reference to the manner of affixation and the uses to which the various articles were put. The witness Marker testified generally that the mill was placed in a rather substantial mill house that was built over it afterwards; that the building had certain mud sills on top of an old stone wall, certain mud sills on the ground, and that the building built thereon was just framework of 2 x 4’s; that in the center of the building there were some 8 by 8 posts; that the building was covered with a corrugated iron roof and corrugated iron sides and had windows in it; that the dimensions of the building were 60 x 70 feet and about 8 to 10 feet in height; that the rod mill was composed of about three fixed parts and about a half dozen moving parts; that there was a base upon which the other fixed parts sat and the base sat upon the top of a concrete block 10 by 15 feet in dimensions and about 8 feet deep; that the mill was fastened to these cement blocks by bolts and nuts; that the mill was placed there originally to mill certain values out of the dump of the Good Hope Mine, and afterwards they milled whatever ore there was in the mine to mill; that a 60-cycle, 3-phase, 440-volt electric motor drove the mill and it sat upon a block on top of the floor; that all the other machinery in the millhouse was affixed differently; that the concentrating table was set upon some rocking arms that were set upon three little concrete pillars ; that the amalgamation plates rested upon wooden tables, the legs of which were nailed to the platform; that the tables were pretty heavy; and that the blower sat on a little concrete block about 2% by 3 feet and one-foot thick, and it was bolted to the little block.
“One witness testified that all of the machinery in the mill-house constituted a connected and interrelated milling system and that if one machine was taken out, such as the table or plates, the whole mill would be shut down, because the values would be gone; that it was an entire operating unit.
‘ ‘ The witness Marker testified that there was no relationship between the various parts that were removed and that they were in no way fastened one to the other.
“The trial court, after hearing the evidence, made certain additional findings, i. e., (1) that the plaintiffs were not at any time the owners of or entitled to the possession of the property described in their complaint; (2) that a portion of the property was used in working and developing the mine; (3) that none of the defendants ever took possession of the property except as heretofore related by them; (4) that since the 11th day of July, 1936, the Dill Lumber Company has been in possession of said property; (5) that plaintiffs, prior to the commencement of this action, never demanded that respondents deliver the property to them; (6) that no part or portion of the property was ever affixed to the real property or severed therefrom; (7) that plaintiffs were not in possession of the real property at the time of the commencement of this action, but the Development Corporation and C. H. Marker were. The court then found that the Dill Lumber Company was the owner of and entitled to the possession of the following described property which was removed from the mining premises:
“ ‘1 Jaw crusher—14 in.
1 Conveyor belt—14//-200 ft.
1 Marathon rod mill—4 x 8
1 Feeder and % HP motor
9 Amalgamation plates
1 Classifier
1. Torster-flotation bell
1. Plate concentrator
1 Flotation blow.er
1 Regrind barrel
1 Reagent feeder
1. Ingersoll-Rand motor pump
1 Circular saw and mantel and motor
1 40 HP motor compressor
1 Braun pulverizer
1 Muffle burner
1 25 HP Motor—2 HP Motors
1 50 HP motor—3 3 HP motors
1 Motor for regrind barrel
2 Motors 15 HP
1 Electric Hoist and cable
1 Ingersoll-Rand compressor
3 Oar lears
1 Skip
2 Denver hammers
1 Cochise-Stoper
1 Cameron pump
1 American centrifugal pump
1 15 HP motor
1 Jaw crusher
Quantity of odds and ends, mining equipment
Odd'lot of tools, shovels, and pipe, etc.’

And entered judgment quieting title to this property in the Dill Lumber Company, decreeing that appellants had no right, title or interest in any of the property. It is to be noted from a comparison that the list of equipment claimed and described in appellants’ complaint and admitted by the answers to have been removed differs materially from the list of articles described in the decree. From the pleadings it would appear that the Dill Lumber Company is now in possession of many of the articles not mentioned therein,- such as ‘windows from the corrugated iron mill building’, which clearly seems to have been a part of the realty; also one Kissel truck; one Autocar Dump; 1200 feet of track; 1500 feet of pipe; one steel safe; one blacksmith shop complete; one G-eneral Electric refrigerator; and many other items. However, the certificate of the sheriff received in evidence discloses a list of articles taken by him under the writ of attachment and sold, which compares closely with the list of articles set forth in the decree. From a study of the record, which contains about 485 pages, we are able to discover that the Autocar Dump Truck was left with Mr. Bert Stewart, the Kissel Truck was not taken from the property, and the 1200 feet of track was left at the mine, as well as the ore cars and skip, most of the pipe, some of the blacksmith shop equipment, a table, six steel cots and bedding and boarding house equipment. The General Electric refrigerator was left in Elsinore.

“The real property involved in this action was mining property. Where this is the case, the machinery which is used in working or developing the mine is deemed to be affixed to the mine. (Malone v. Big Flat Gravel Min. Co., 76 Cal. 578, at p. 583 [18 Pac. 772]; Civ. Code, secs. 660 and 661.) Articles annexed or structures erected by a purchaser of land who is in possession by virtue of his contract of purchase but who has not yet obtained title to the premises, cannot ordinarily be removed by him without the consent of the vendor, the presumption being, from his interest under the contract and expectation of acquiring absolute title, that he intended the structures or articles to be a part of the land. (Pomeroy v. Bell, 118 Cal. 635, at p. 638 [50 Pac. 683] ; 26 Cor. Jur. 675, sec. 36; Lavenson v. Standard Soap Co., 80 Cal. 245, at p. 250 [22 Pac. 184, 13 Am. St. Rep. 147]; Oakley Co. v. Butler, 15 Cal. App. (2d) 572 [59 Pac. (2d) 826].)

“ There is an exception to the rule specified in sections 660 and 661 of the Civil Code which may be thus stated: that the parties themselves may, in their dealings with chattels annexed to or used in connection with real estate, fix upon them whatever character, as realty or as personalty, they desire and the courts will give to the property the character which the parties themselves have fixed upon. (Miller v. Struven, 63 Cal. App. 128 [218 Pac. 287]; Fratt v. Whittier, 58 Cal. 126 [41 Am. Rep. 251].)

“Under paragraph 13 of the conditional sales contract we find this language: ‘It is agreed . . . upon the violation of any of the covenants and/or conditions herein contained, the same shall, at the option of the second parties (Teaters) terminate . . . and said premises . . . and the appurtenances, and all buildings and other improvements shall become forfeited to second parties . . . provided, however, that second parties shall not exercise the within option until they have given to first party (Marker) (30) days’ written notice to cure his default . . . ’

“The other provision in the contract relating to the purchaser’s rights may be found in paragraph 15, which in part provides as follows: ‘It is mutually understood and agreed that upon the termination of the within agreement, for any reason whatever, that all machinery and tools and other unattached and movable equipment which may be placed upon said premises by first party may be removed therefrom within forty-five days after the termination of the within agreement. Provided, however, that no such tools or machinery shall be removed while first party may be in any manner indebted to second parties for past instalments due under the .obligation of the within contract, and such machinery and equipment shall be deemed security for the payment of such instalments. ’

“It was to be anticipated from a fair construction of this entire agreement, that certain appurtenances, buildings and other improvements would, under sections 660 and 661 of the Civil Code, become fixtures to the real property, and that there would be certain other machinery and tools that were movable and unattached that would not of necessity become a part of the realty.

“Property constituting fixtures to the land belongs to the vendor in case the purchaser subsequently defaults in his contract, and he has no right at any time to remove it, and no creditor has any greater right. (Conde v. Sweeney, 14 Cal. App. 20 [110 Pac. 973]; Pomeroy v. Bell, supra; Chowchilla Colonization Co. v. Thompson, 39 Cal. App. 517 [179 Pac. 411] ; In re Potee Brick Co. of Baltimore City, 179 Fed. 525, 528; Ewell, Fixtures (2d) p. 73, sec. 49.) Where a fixture annexed to a freehold is tortiously severed, the owner of the realty, at his option, may treat the fixture as personalty and recover the same by the action of replevin. (Bronson, Fixtures, p. 380, sec. 1106.) The right to the immediate possession of this property by the vendor was created by the act of the vendee. (Leonard v. Stickney, 131 Mass. 541.)

“Appellants’ action in this case was one of replevin and, of course, the essential prerequisite to such an action is the right to the immediate and exclusive possession of the property at the time of the commencement of the action (Freder icks v. Tracy, 98 Cal. 658 [33 Pac. 750]) and hence, if there be any preliminary act or condition precedent to be performed before the unqualified right of possession attaches the action cannot be maintained, and an after-acquired interest will not support replevin. (People’s Savings Bank of Fresno v. Jones, 114 Cal. 422 [46 Pac. 278]; 5 Cal. Jur. 160, sec. 4.) It must be conceded that on the date of the commencement of this action Mrs. Teater was the owner of the Good Hope Mine (the real estate) subject to the contract of sale to the Development Corporation; that certain payments under the terms of that contract were in default but no forfeiture had been declared and that the appellants were enjoined from declaring such forfeiture. It must be conceded further that the Development Corporation purchased the personal property here in controversy and originally was its owner. Therefore, unless the title and ownership thereto were lost or encumbered between the date of its purchase in 1933 and the sale under the levy of the attachment by the Dill Lumber Company in 1936, the findings of the trial court on the cross-complaint must be upheld.

“ The main question then presented to the trial court was whether the act of locating the machinery on the mine and using it in and about its development amounted to an absolute transfer of title and change of ownership or whether the transaction amounted merely to the giving of security on personal property.

“It is the general rule that where the purpose and effect of the transaction is to create a lien on specific property as security for the payment of a debt it constitutes a mortgage, irrespective of the language used by the parties. (Ferguson v. Murphy, 117 Cal. 134 [48 Pac. 1018]; 5 Cal. Jur., p. 44, sec. 5; 5 R. C. L., p. 384.) The rule is well stated in Sterman v. Ziem, 17 Cal. App. (2d) 414, 418, 419 [62 Pac. (2d) 160], where it was held that a chattel mortgage does not transfer title to the mortgaged property and that the mortgagee has only a lien thereon as security for the payment of the debt. Even though the parties agree to the contrary, yet where the relation of the parties is that of debtor and creditor and the property is regarded as security for the payment of the debt, there is no transfer of title. A mortgage ordinarily does not entitle the mortgagee to the possession of the property unless authorized by the express terms of the mortgage (sec. 2927, Civ. Code; 5 Cal. Jur. 117), with some possible exceptions. (Summerville v. Stockton Milling Co., 142 Cal. 529 [76 Pac. 243]; Bank of Ukiah v. Moore, 106 Cal. 673 [39 Pac. 1071]; Wixom v. Davis, 57 Cal. App. 620 [207 Pac. 694].)

“It seems clear that the placing of all machinery and tools and other unattached and movable equipment upon the premises was to be considered as additional security for the overdue instalments of the purchase price in the face of the language of the contract between the parties.

“The question now presents itself: Would the tools, machinery and equipment removed come under and be classified by the second provision of the contract or were they a part of the realty? When the construction given an instrument by a trial court appears to be reasonable and consistent with the intent of a party, appellate courts will not substitute another interpretation though it seems equally tenable. (Kautz v. Zurich Gen. A. & L. Ins. Co., 212 Cal. 576, 582 [300 Pac. 34]; Estate of Boyd, 24 Cal. App. (2d) 287 [74 Pac. (2d) 1049].)

“It is quite evident from the record that the Teaters considered the equipment described to be mortgaged for the payment of delinquent instalments due, and were quite satisfied to allow the development corporation to remove it if the instalments were paid.

“We have carefully examined the entire record as to the manner of affixation of the various parts of the machinery described, and as to a great portion of it there seems to be little doubt as to the correctness of the court’s finding. As to other portions (although the record is very confusing) there may be some question. It is quite apparent to us that the windows at least, which were removed from the corrugated iron mill building, were a part of the realty notwithstanding the finding of the trial court. This being so, the appellants, under the case of Chowchilla Colonization Co. v. Thompson, supra, would have the right of possession as to this property. Under the present state of the pleadings and the evidence before us we are unable to determine in whose possession the balance of the property not described in the decree may be found.

“Section 2957 of the Civil Code, as it existed in 1933, on the date of the execution of the contract of purchase, provided :

“ ‘A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless:
“ ‘1. It is accompanied by the affidavit of all the parties thereto that it is made in good faith and without any design to hinder, delay, or defraud creditors;
“ ‘2. It is acknowledged or proved, certified, and recorded in like manner as grants of real property. ’
“This section is modified by section 2973 of the Civil Code, making such an instrument valid between the maker and persons who, thereafter parting with value, have actual notice thereof. It is apparent that appellants have not complied with sections 2957 and 2973 of the Civil Code. Therefore the mortgage is valid between the parties and persons who, before parting with value, have actual notice thereof. The trial court has failed to find on this issue. It was held in Stewart v. Leasure, 12 Cal. App. (2d) 652 [55 Pac. (2d) 917], that where a lease provides that the landlord shall be the owner of all crops until the rent has been paid, the agreement must be construed as intending to give security to the landlord for the rental and to create a lien upon the crops, and that it was an attempt to obtain the advantages of a chattel mortgage without complying with the provisions of the statute upon the subject. In our opinion, the instant contract, in referring to the machinery and tools and other unattached and movable equipment, should be subject to the same rule of construction, viz., that as between the parties and subsequent purchasers with notice, appellants had a lien upon the property but were not the absolute owners of the same and could not become so until they took the necessary steps to foreclose such lien. (Stewart v. Leasure, supra; Ronning v. Way, 18 Cal. App. 527 [123 Pac. 615].) There is considerable evidence in the record that would support the finding that the Dill Lumber Company, or at least some of the assignors of its various claims, had notice of the provisions of the contract of purchase. It therefore becomes material to the issue presented to determine this fact in support of the judgment quieting title to the property involved. (Tomlinson v. Ayres, 117 Cal. 568 [49 Pac. 717] ; Douglass v. Willard, 129 Cal. 38 [61 Pac. 572]; Ronning v. Way, supra; 5 Cal. Jur., p. 50, sec. 9.)
“If the evidence of notice of the lien of appellants on the personal property would support a finding of lack of notice of appellants’ lien at the time respondent parted with value, and if such a finding were made, then the judgment rendered on the cross-complaint could be supported. Such finding would leave undetermined the right of possession and ownership of the property described in the complaint, which may have been a part'of the realty and which is not described in the cross-complaint nor in the judgment. The evidence shows rather conclusively that the admission in the answers that the sheriff took possession of all of the property is not correct. It is not clear what became of the property not described in the judgment. If the sheriff still has possession of some of it, the trial court should make some proper finding concerning it. This is also true if possession is in the Dill Lumber Company or the Development Corporation. Because of this uncertainty, the judgment in favor of these respondents cannot be affirmed. As to kbe judgment on the cross-complaint in favor of the Dill Lumber Company, there also remains for determination the question of notice of the lien of appellants before this respondent parted with value, and also whether it did in fact part with value. (Sec. 2973, Civ. Code.)
“Certain respondents admittedly did not have possession of any of the property, a necessary prerequisite in a replevin action. Therefore the judgment in favor of those respondents, namely, Bank of Perris, C. B. Stewart, sued under the name of H. G. Stewart, C. H. Marker, James H. Hyde, Maude C. Marker, Eugene Best and Alford P. Olmstead is affirmed. As to the Dill Lumber Company, a corporation, Carl Beyburn, sheriff of Biverside county, and the Good Hope Development Corporation, the judgment is reversed with instructions to the trial court to take further evidence, if necessary, to allow an amendment of the pleadings to conform to the proof and make the necessary finding on the issue of notice of the appellants ’ lien, value parted with, if any, by cross-complainant, and determine what property described in the complaint was affixed to the realty, which was not described in the judgment, and enter judgment consistent with the findings and the views herein expressed.”


author: EDMONDS, J.

text:
    [S. F. No. 16279.
    In Bank.
    August 18, 1939.]
    NICK SKALKO, Appellant, v. CITY OF SUNNYVALE (a Municipal Corporation), Respondent.

      Joseph F. Di Maria for Appellant.
    N. E. Wretman for Respondent.
   EDMONDS, J.

The appellant, as owner of real property in the city of Sunnyvale, sought a declaratory judgment that a zoning ordinance restricting the use of his property is void as to him. Ruling adversely to his contentions, the trial court decided in favor of the city.

There is little dispute concerning the facts. It appears that by the challenged enactment, property within the city of Sunnyvale has been placed in either a residential, commercial or industrial zone. The appellant’s land is in a residential district, but its north line is also the boundary between that district and an industrial district. A cannery, said to be the largest in the world, employing about 3,000 workers during six months of the year and many hundreds for an additional three months, is located about 100 feet from the appellant’s property. This cannery works night and day, with three shifts of employees.

At one side of the appellant’s property but upon the land of the cannery are a warehouse and some huge piles of empty boxes. In front of the property there are also four piles of these boxes, each about a city block in length and apparently more than twenty feet high. During most of the year boxes are being placed in or taken from these piles at all hours of the day and night. The streets for about one-half mile from the plant are used to park the automobiles of the cannery workers and others. The area around the appellant’s property is sparsely settled, and devoted to agricultural use. The few dwellings in the neighborhood have a rather low value.

There is heavy automobile and truck traffic in front of the appellant’s property throughout the year, but principally during the operating season of nine months. For six months of the year this traffic continues during both day and night. At a distance of 450 feet, 80 trains a day pass over the main line of the Southern Pacific Company, and it maintains two spur tracks to the cannery upon which freight ears are hauled at all hours.

The machinery of the cannery can be heard for a long distance as a continuous hum. There is also, at irregular intervals, the noise of escaping steam from the popping off of safety valves and, twice a day, from the cleaning of boilers.

As described by the appellant, his property consists of five acres upon which he had prune trees at one time. These trees were removed because of the insects which came over to them from the piled boxes of the cannery across the street, and there is now nothing on it but a barn and a house worth about $1,000. Desiring to operate a cafeteria, light lunch and re-i freshment stand upon his land, he submitted to the city trustees of Sunnyvale petitions for inclusion of his property in the business district. These petitions were denied.

Although challenging the validity of the zoning ordinance upon the ground that it was not adopted in compliance with the Zoning Act of 1917 (Stats. 1917, p. 1420), the appellant’s principal contention is that the present restriction upon the use of his property under the conditions now existing may not be upheld as a reasonable exercise of the police power to protect public health, safety, morals and general welfare. A zoning ordinance, he asserts, may be valid in its general aspects and at the same time be clearly arbitrary and unreasonable as applied to particular property.

The constitutionality of the principle of zoning is no longer an open question, and the right of a municipality to divide land into districts and prescribe regulations for its use, consonant with a reasonable exercise of the police power, has long been upheld by the courts. (Miller v. Board of Public Works, 195 Cal. 477 [234 Pac. 381, 38 A. L. R. 1479] ; Euclid v. Ambler Realty Co., 272 U. S. 365 [47 Sup. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016].) Such an enactment must be considered with every intendment in its favor, and a court will not, except in a clear case, interfere with the legislative discretion which has been exercised in its adoption. Unless the measure is clearly oppressive, it will be deemed to have been adopted within the purview of the police power. (Zahn v. Board of Public Works, 195 Cal. 497 [234 Pac. 388].) But where the exercise of that power results in consequences which are oppressive and unreasonable, courts do not hesitate to protect the rights of the property owner against the unlawful interference with his property. In other words, the governmental power is not unlimited, and a regulation of the use of property must rest upon a reasonable exercise of the police power. (Nectow v. Cambridge, 277 U. S. 183 [48 Sup. Ct. 447, 72 L. Ed. 842].) Legislatures may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities. (Washington v. Roberge, 278 U. S. 116 [49 Sup. Ct. 50, 73 L. Ed. 210, 86 A. L. R. 654].)

Also, the police power must be applied to existing conditions. (Miller v. Board of Public Works, supra.) “The principle that a police regulation, valid when adopted, may become invalid because in its operation it has proved to be confiscatory, carries with it the recognition of the fact that earlier compliance with the regulation does not forfeit the right of protest when the regulation becomes intolerable”. (Abie State Bank v. Bryan, 282 U. S. 765 [51 Sup. Ct. 252, 75 L. Ed. 690].) Where conditions have changed since the legislative action was taken, “statutes and ordinances, which, after giving due weight to the new conditions are found clearly not to conform to the Constitution, of course, must fall”. (Euclid v. Ambler Co., supra.) The question, therefore, is whether under the facts shown by the appellant his rights are now being invaded by the existence and maintenance of the ordinance.

Considering all the facts shown by the record, it clearly appears beyond question that the land owned by the appellant is entirely unsuited for residential purposes. The adjoining cannery with the continuous noise which must necessarily result from twenty-four hour operation, creates a situation similar to that which is found in the industrial part of a great city. Certainly no one wants to live next door to a large factory, and the question whether any consideration of public health, peace, safety or general welfare justifies the continued restriction upon the appellant’s property which prohibits its use for commercial purposes is not fairly debatable. In its application to the land owned by the appellant, the ordinance is void. (Hurst v. City of Burlingame, 207 Cal. 134 [277 Pac. 308].)

The judgment is therefore reversed with directions to enter judgment for the appellant.

Curtis, J., Shenk, J., Houser, J., and Pullen, J., pro tern., concurred.

Rehearing denied.


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    [S. F. No. 16236.
    In Bank.
    August 18, 1939.]
    LENA GENOLA, Appellant, v. ARTHUR A. BARNETT et al., Respondents.

      Ingemar E. Hoberg and George J. Zech for Appellant.
    Hadsell, Sweet, Ingalls & Lamb for Respondents. -
   PULLEN, J., pro tem.

This is an action for personal injuries to plaintiff who was struck, as she was attempting to cross a street between the intersections in a residential district in San Francisco, by a car owned by defendant Arthur A. Barnett and operated at the time by his wife.

At the close of plaintiff's case, a nonsuit was granted on the ground that, as a matter of law, defendant, the operator of the car, was not guilty of negligence, and that plaintiff was guilty of contributory negligence. From this order for non-suit and the judgment entered thereon this appeal was taken.

Reviewing the evidence in the light of the well-known principles governing nonsuit, the record discloses that, about 6 o’clock in the evening of February 3, 1938, the weather being clear and the street well lighted, plaintiff, a woman about sixty-two years of age, left her apartment on the north side of Pacific Avenue between Franklin and Gough Streets, and walked west on Pacific Avenue approximately thirty feet tó a point almost directly opposite a store on the south side of the avenue toward which she was making her way. She stepped off the curb, and proceeded about eight or nine feet into the street, looking easterly toward Franklin, stopped, took a step back, and was struck by the car driven by Mrs. Barnett, causing the injuries here complained of. Mrs. Barnett, just prior to the accident, was traveling west on Pacific Avenue. She had stopped for a traffic signal at Franklin and Pacific, and was proceeding between thirty and forty miles an hour along Pacific when she struck plaintiff.

Three eye-witnesses testified for plaintiff. Two were employees in the store, and the third was sitting at an upper window of his apartment on the south side of Pacific Avenue, and perhaps seventy-five feet east of the store. One of these witnesses testified he saw plaintiff leave her apartment and walk westerly on the sidewalk to a point opposite the store. He saw her glance first to the west and then quickly to the east as she stepped off the curbing. She continued to look easterly, or toward her left, and when she reached a point eight or nine feet from the curb she stopped, stood still, and then took a step about a foot and a half backward. As plaintiff was in the act of stepping back, the witness looked toward the east and saw defendant’s car about forty or fifty feet away traveling toward plaintiff at a rate of between thirty and forty miles an hour. The car of defendant did not swerve, but proceeded in a straight course and, after striking plaintiff, came to a stop about sixty feet from the point of impact. This witness also testified that there was no other traffic on the street, that the street was well lighted, and that immediately after the accident he heard defendant state that she was at fault.

A second witness testified that there were no parked cars along the curb immediately to the left, or east, of plaintiff where she left the curb; that plaintiff stopped at the curb before stepping off, and when about eight feet into the street stopped again. No cars were previously within view of this witness, but at that instant the witness saw the car of defendant approaching from the east about sixty or eighty feet from plaintiff, traveling between thirty-five and forty miles an hour.

The third eye-witness testified that after the impact plaintiff was lying in the street about eight feet from the curb; that there were no parked cars where plaintiff left the curb, and that the car of defendant traveled about forty feet after strildng plaintiff, and came to a stop.

The foregoing is a brief narration of the facts as revealed by the record. The question for determination is whether or not these facts justified the granting of the nonsuit. The accident, as already noted, occurred in a residential zone in San Francisco where the legal rate of speed for an automobile is not in excess of twenty-five miles an hour. At the intersection of Pacific Avenue and Franklin Street the traffic on Pacific Avenue was controlled by a traffic signal device; but at the next intersection, that is, at Gough and Pacific, there was no such traffic control. This is important in the light of section 563 of the California Vehicle Code, which provides: “Pedestrians at Controlled Intersections. (a) At intersections where traffic is controlled by a traffic control signal device or by police officers, pedestrians shall not cross the roadway against a red or stop signal, (b) Between adjacent intersections so controlled pedestrians shall not cross at any place except in a crosswalk. ’ ’

The general provision governing the crossing of a street at a point other than at an intersection or crosswalk is found in section 562 of the Vehicle Code, which provides: “Crossing at Other Than Crosswalks, (a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway. (b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway.” The first thing to be noticed in this section is that it is not a prohibition against crossing a roadway other than at an intersection, but only that the pedestrian shall yield the right of way.

The city of San Francisco has enacted no ordinance covering this subject applicable to residential districts, and this case must be governed by the general law as found in the Vehicle Code. What is there meant by yielding the right of way is discussed in Mitrovich v. Graves, 25 Cal. App. (2d) 649 [78 Pac. (2d) 227], which holds that a pedestrian who ventures upon the highway need not flee at the sight of an approaching vehicle, but must merely defer to the driver of the vehicle and permit the machine to pass ahead of him.

In the instant case, it would seem that plaintiff did everything required of her to be done. Before venturing into the street, she stopped and looked in the direction from which traffic would come. She stopped to permit the car of defendant to pass, thereby complying with the rule expressed in Mitrovich v. Graves, supra. In fact, she did even more— she not only stopped, but took at least one step backward.

Pacific Avenue between the blocks in question was thirty-eight feet nine inches from curb to curb. There was therefore approximately eleven feet of unobstructed highway between plaintiff and the center line thereof over which defendant could have traveled to have avoided strildng plaintiff. Whether this accident was due to the speed at which defendant was driving, the visibility, or failure to observe plaintiff upon the highway, were matters which should have been considered by a jury.

In support of this judgment considerable reliance seems to have been placed upon the case of Chase v. Thomas, 7 Cal. App. (2d) 440 [46 Pac. (2d) 200]. The distinguishing fact in that case, however, is clearly pointed out in Mitrovich v. Graves, supra, where it is said (25 Cal. App. (2d) at page 655) : “In that casé the plaintiff did not yield the right of way. He.failed to stop for an approaching machine to pass ahead of him. He deliberately continued on his way and stepped into the very pathway of the machine, without warning. The driver was powerless to stop and avoid the collision. ’ ’

Another case urged as controlling was that of Meincke v. Oaklrnd Garage, 11 Cal. (2d) 255 [79 Pac. (2d) 91]. There, plaintiff was governed by an ordinance which contained a positive prohibition against a pedestrian crossing at the point involved. As previously noted, there is here no other prohibition than that found in the Vehicle Code.

Several of the cases relied upon by the respondents are considered in the case of Brannock v. Bromley, 30 Cal. App. (2d) 516 [86 Pac. (2d) 1062], and we need not here repeat what is there said beyond restating that “The duty of a pedestrian to ‘yield’ the right of way while crossing a street other than at a regular crosswalk, as imposed by section 562 of the Vehicle Code, may call for a higher degree of care upon the part of such pedestrian than would be applied to one crossing at a regular crosswalk, but the question as to whether or not such care was exercised in a given case is one for the jury, unless he is so careless that it can be said he is negligent as a matter of law.”

In Varner v. Skov, 20 Cal. App. (2d) 232 [67 Pac. (2d) 123], the deceased was crossing a county roadway where there were no designated crosswalks. She hesitated at the curb, then stepped into the street. Defendant swerved to the left to avoid the accident, but failed. Defendant, appealing from a judgment against him, claimed the trial court erred in refusing to hold as a matter of law that he was not guilty of negligence, but it was held that section 131% of the Vehicle Code, now section 562, did not give the driver of the ear an absolute right of way without regard to the surrounding circumstances, and whether a reasonably prudent person would have crossed at the particular time and place depended upon a number of things, such as the distance and speed of the approaching car, and was a question for a jury.

In White v. Davis, 103 Cal. App. 531 [284 Pac. 1086], it is said (p. 542) : ‘‘There seems to be a general rule running through the eases where a pedestrian, or one standing on a highway, is injured by an automobile, which usually determines whether the question of contributory negligence is one of law, or of fact. Where the injured party fails to look at all, or looks straight ahead without glancing to either side, or is in a position where he cannot see, or in other words, where he takes no precaution at all for his own safety, it is usually a question for the court. Where he looks but does not see an approaching automobile, or seeing one, misjudges its speed or distance, or for some other reason assumes he could avoid injury to himself, the question is usually one for the jury.”

It is to be recalled also that at the time of the accident respondent was exceeding the speed limit and, while a speed in excess of the limit set forth in the code does not constitute negligence per se, the jury was entitled to say whether or not the speed of defendant was, under all the circumstances, a negligent rate of speed. This rule is stated in Cal. Jur. Supp. 2, Automobiles, at page 406, as follows: “Although the statute requires the pedestrian, in crossing a roadway at a point other than a crosswalk, to yield the right of way to an oncoming vehicle, nevertheless, a recovery is sustainable where it appears that the defendant’s vehicle was being operated at excessive speed. The requirement, so it is expressed, does not relieve the driver of the statutory obligation of operating his vehicle at a speed which is ‘careful and prudent’ and not such as to endanger ‘life, limb or property. ’ ”

Not only did the trial court hold in the ease at bar, as a matter of law, that plaintiff was contributorily negligent, but that her negligence was, per se, the proximate cause of her injury. Here, plaintiff was standing in the street, according to one eye-witness, about ten or twelve seconds. She then stepped back, at which time the car was not within an approximate eighty-foot range of vision of the witness. When defendant failed to see what was plainly visible, failed to slacken her speed, and failed to swerve her car a few inches to avoid striking plaintiff who had yielded the right of way, it cannot be said that, as a matter of law, the negligence of plaintiff was the proximate cause of her injury. (Griffiths v. Crawford, 10 Cal. App. (2d) 543 [52 Pac. (2d) 548] ; Arnaz v. Forbes, 51 Cal. App. 665 [197 Pac. 364].)

One of the results of the injury suffered by plaintiff, as is often the ease in a head injury, was the inability to recall any of the events immediately before or after the accident, and she was, therefore, unable to testify. Under these circumstances, plaintiff claims she can rely upon the presumption that she was using due care. Inasmuch, however, as the direct evidence is sufficient to justify the submission of this cause to a jury, we need not now pass upon this question. And for the same reason it is likewise unnecessary to consider the doctrine of last clear chance.

Without further elaboration, we believe the trial court here erred, and the order and judgment must be reversed. It is so ordered.

Edmonds, J., Shenk, J., Curtis, J., and Houser, J., concurred.


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    [L. A. No. 17133.
    In Bank.
    August 18, 1939.]
    HERBERT R. WATERMAN, Petitioner, v. THE STATE BAR OF CALIFORNIA.
    Herbert R. Waterman, in pro. per., for Petitioner.
    Philbrick McCoy for Respondent.
   PULLEN, J., pro tem.

This is a proceeding to review the recommendation of the board of governors of The State Bar that petitioner be disbarred.

It is charged that petitioner is guilty of a violation of rule 3 of Rules of Professional Conduct of The State Bar (213 Cal. cxiii) in that he engaged another to solicit professional employment for him, commonly referred to as “ambulance chasing”, and, further, that the petitioner wilfully, intentionally and with a view of furthering his own personal interest gave testimony under oath before a committee of The State Bar, which testimony was untrue, and was given with the view of misleading such committee and The State Bar.

There is no substantial dispute as to the facts. Petitioner admits the charge of “ambulance chasing” in each of the three instances specified. He also admits having made false statements before the committee of The State Bar, but states that he so testified out of fear of the consequences, and not because of any corrupt motive, and that at a subsequent meeting of .the committee he voluntarily repudiated all such false testimony and thereupon testified truthfully and fully in all matters.

The findings of the committee, as approved and adopted by the board of governors, declare that upon each of the three separate occasions alleged, petitioner, through one Williám T. Stevens, acting as his agent, had, from January, 1938, to May, 1938, solicited professional employment.

In June, 1938, Stevens was arrested and charged with a violation of an ordinance of the city of Los Angeles prohibiting the solicitation of such employment in tort cases, and was released on bail. When Stevens failed to appear and enter his plea, his bond was forfeited, and he is apparently still a fugitive.

In October, before this same committee of The State Bar, which was then conducting a preliminary investigation of petitioner’s professional conduct with relation to the above matters, he testified that during the year he had had no business with Stevens except in connection with a damage case for his wife; that he had not seen Stevens for . several years; that he had no knowledge of Stevens’ arrest; that he did not know whether he was in jail or had been tried; that he had done nothing in assisting Stevens in connection with the charges against him; and that he did not know what business Stevens was in except that he had heard that Stevens was once a cook.

The evidence before the committee, however, disclosed that, when Stevens was arrested, petitioner arranged for his bond, and signed as an indemnitor thereon, and that it was with petitioner that the bonding company dealt for the repayment of the bond after the flight of Stevens. It is also in evidence that petitioner stated to one Ralph that “his ambulance chaser” whom he had gotten out on bail had left for New York, and that petitioner was relieved because of his departure.

After the introduction of the foregoing testimony, petitioner filed an answer to the notice to show cause, wherein he admitted he had entered into the three contracts of employment as charged and that he had, on a prior hearing, testified falsely as to his connection with Stevens, but averred that his acts and conduct in so testifying were not wilful or entirely false, but, being wholly unprepared and by reason of fear of disgrace and humiliation, the answers were given without time for proper deliberation.

After a hearing, the committee found that petitioner had been guilty of soliciting business of a personal injury or negligence nature through an agent or “capper”, knowing that such conduct was contrary to the rules of professional conduct of The State Bar, and that petitioner wilfully, intentionally and with a view to furthering his own personal interest had given testimony under oath before the committee which was incorrect in substance and was given with a view to mislead said committee.

It also appears that during petitioner’s rather brief membership in the bar this is the third time he has come before the board of governors for professional misconduct.

In 1933 he was suspended from practice for one month by this court for misconduct in the use of funds delivered to him by a client. (In the Matter of Waterman, Misc. 1258.) In 1936 he was suspended for six months for unprofessional conduct arising out of the manner of handling a divorce and advising certain witnesses to ignore subpoenas to attend before a committee of The State Bar. (Waterman v. State Bar, 8 Cal. (2d) 17 [63 Pac. (2d) 1133].)

Petitioner contends in his petition to review the recommendation of The State Bar that suspension, and not disbarment, is the penalty for employing another to solicit professional employment; but he seems to overlook the more serious charge of having knowingly given false testimony under oath before a committee of The State Bar. He now seeks leniency of this court and bases his plea therefor upon his voluntary admission of wrongdoing and his voluntary correction of all false testimony given at the prior session of the committee.

Let us examine the record. It was at a meeting of the investigating committee on October 7, 1938, that petitioner, under oath, denied any business dealings with Stevens, or that he had assisted in any way to obtain his release on bail. On October 26, 1938, some six or eight witnesses were called and examined as to the solicitation of them by Stevens for professional employment of petitioner.

Up to that point in the proceedings petitioner, who appeared as his own attorney, had filed no answer and had cross-examined but one witness. At that juncture, petitioner stated to the committee he had slipped and that it was a useless gesture to proceed with cumulative evidence. The matter was then continued to November 3, for further hearing. On that day an answer was filed by petitioner admitting the several instances of soliciting professional employment through Stevens, and admitting having signed his bond as an indemnitor.

The claim for leniency cannot outweigh the right of the members of The State Bar to protect their professional standing. As was said In re Vaughan, 189 Cal. 491 [209 Pac. 353, 24 A. L. R. 858], quoting from In re Wellcome, 23 Mont. 450 [59 Pac. 445], a proceedihg such as this is not a criminal investigation, but is to ascertain if the accused is worthy of confidence and possessed of good moral character. Here, petitioner did not need several days to determine his course of conduct. The facts were within his knowledge. It was incumbent upon him to tell the truth when called to testify before the committee. He did not need time for deliberation, nor does it look as if his motives were entirely pure, for the admission of wrongdoing did not come until it was quite obvious the committee had not only the evidence of unprofessional conduct but also of false swearing as well.

The plea of petitioner for a reduction of the penalty cannot be permitted to prevail in view of the proven and admitted facts. His prior record, his unprofessional conduct in seeking business, his lack of truthfulness before the committee, all are elements indicating a want of appreciation of the requirements of a member of the legal profession, and disclose an unfitness to remain such a member.

The record fully sustains the recommendation of the board of governors that petitioner be disbarred, and it is so ordered.

Edmonds, J., Shenk, J., Gurtis, J., and Houser, J., concurred.