text:
    [L. A. No. 16656.
    In Bank.
    December 1, 1938.]
    CITY OF LOS ANGELES (a Municipal Corporation), Appellant, v. JOHN ANSON FORD et al., as Members of the Board of Supervisors of Los Angeles County, Respondents.

      Ray L. Chesebro, City Attorney, Frederick von Schrader, Assistant City Attorney, and Bourke Jones, Deputy City Attorney, for Appellant.
    Everett W. Mattoon, County Counsel, and Gordon Boller, Deputy County Counsel, for Respondents.
   THE COURT.

The appeal in this action which was determined by the District Court of Appeal, Second Appellate District, Division Two, was ordered to be heard in this court in order that more careful consideration thereafter might be afforded than was practicable at and preceding the date upon which such hearing was granted. Following an examination of the points of law as they have been presented in the several briefs of the respective parties, it has been determined that the decision that was rendered thereon by the said District Court of Appeal correctly represents the conclusion that has been reached by this court with respect to the issues that have been submitted herein. Accordingly, it is ordered that the opinion that was written by Mr. Justice Wood, of said District Court of Appeal be, and it is adopted as the opinion and decision of this court. It is as follows:

“The City of Los Angeles filed a petition in the Superior Court for a writ of mandate directing respondents, members of the Board of Supervisors of Los Angeles County, to cancel certain taxes and assessments against parcels of real estate under the ownership of petitioner. The cause was submitted upon the pleadings and a stipulated statement of facts and judgment went for respondents, from which petitioner appeals.
“Petitioner acquired the land designated on the map appearing in the transcript as parcel B, between Alameda street and Santa Fe avenue, for the purpose of continuing Washington boulevard easterly from Alameda street at the same width as parcel B. The grade of this land is far below that of Alameda street, Santa Fe avenue and Washington boulevard at its intersection with Alameda street, and it is impracticable to construct this continuation of Washington boulevard without raising the grade a considerable distance above the present grade of parcel B and also of the land designated as parcels A and C. At the time the land was acquired by the city it was the city’s intention to contruct the street on a bridge or viaduct but the city was forced to abandon this original plan because of its excessive cost. In order to carry out the proposed continuation of Washington boulevard without the necessity of constructing a bridge or viaduct a fill is intended to be made and in order to do so it was necessary to acquire property on either side of parcel B in order to support the fill, and the land designated as parcels A and C was acquired by the city for that purpose. In order to afford a route for public travel between Alameda street and Santa Fe avenue until such time as Washington boulevard may be improved to the desired grade and opened for public travel between Alameda street and Santa Fe avenue and slope rights for the fill are no longer needed, the land designated as parcel D was acquired by the city. The title to parcels A, C and D, was acquired by the petitioner by a deed which contained a provision that title should revert to the grantors when the parcels of land designated as A, C and D should be uniformly filled and the total area brought to the established grade of Washington boulevard and further that parcel D should revert when parcel B was improved for use as a highway and actually opened for travel. The city acquired the three parcels mentioned in the deed on April 12, 1935, at which time the taxes for the years 1931-1932, 1932-1933, 1933-1934 and 1934-1935 were unpaid and the land sold to the state for said taxes, the property being only a portion of the real estate assessed as a unit for the taxes mentioned. Application was made to the board of supervisors for the cancellation of the taxes in so far as levied upon parcels A, C and D and the application was denied on April 27, 1936.

“It is provided in section 1, article XIII, of the Constitution of California that ‘ . . . property ... as may belong to . . . any . . . municipal corporation within this state shall be exempt from taxation . . . ’. In Smith v. City of Santa Monica, 162 Cal. 221 [121 Pac. 920], the plaintiff sought to quiet title to certain lands in the City of Santa Monica for which he held tax deeds from the state. The assessments under which the land was sold were for the years 1894 and 1895. The tax collector’s deeds were made on June 10, 1908. The City of Santa Monica had brought an action to condemn the real estate for public purposes as a city park and judgment in its favor was entered on December 20, 1897. In upholding a judgment in favor of the defendant city the Supreme Court said: ‘It may safely be said that when a municipal corporation acquires property under such circumstances the title which the state takes by the tax-collector’s deed is merged into the larger title which the municipality holds under the trusts both for the public as distinguished from the state and also for the state as the supreme sovereign. ’ In State v. Minidoka County, 50 Idaho, 419, 298 Pac. 366, the Supreme Court of Idaho had under consideration an action brought by the state to quiet title to lands purchased by the state in foreclosing a school fund mortgage and to require the county commissioner to cancel and discharge certain tax liens. Basing its decision upon a section of the constitution of Idaho, which exempts ‘the property of . . . the state . . . from taxation’, the court said: ‘When the state obtains complete unconditional title to lands pursuant to the foreclosure of school fund mortgages, the title is freed, by article 7, section 4, of the constitution, from all past taxes and liens therefor, and all such liens on the tax records become nil and should be cancelled. ’

“In 1925 the legislature amended section 3804a of the Political Code by providing that: ‘Any uncollected tax, or assessment, or portions thereof, . . . upon an assessment of property which after the time said tax or assessment became a lien was acquired and owned ... by any . . . municipal corporation . . . and which, because of such public ownership, is not subject to sale for delinquent taxes, may, upon satisfactory proof thereof, be cancelled by the officer having custody of the record thereof upon the order of the board of supervisors, . . . ’. The method thus provided for the cancellation of the assessment or uncollected tax was applied in People v. Board of Supervisors, 126 Cal. App. 670 [15 Pac. (2d) 209], where a writ of mandate was issued commanding the members of the board of supervisors to cancel an assessment of taxes against land owned by the city and acquired by it for park purposes. It was there stated that the case of City of Santa Monica v. Los Angeles County, 15 Cal. App. 710 [115 Pac. 945], relied upon therein and also in the present litigation, does not pass upon the question then before the court. The court pointed out that section 3804a was not in existence at the time of the decision in Santa Monica v. Los Angeles County. The constitutionality of section 3804a was upheld. An application for a hearing was denied by the Supreme Court.

"Respondents point out that the land acquired by the city is a portion of a larger parcel taxed as a unit and contend that the language of section 3804a should be construed as meaning that the word portion refers to an instalment of the tax due. We cannot accept this view. The word portion is related to the word assessment as well as to the word tax. It would be doing violence to the language used by the legislature to place upon it the construction suggested. By the enactment of section 3804a the legislature provided effective means for the cancellation of assessments upon property acquired by the municipality. The legislature did not enlarge or restrict the right of the municipality to exemption from taxes assessed against lands in its ownership. Indeed it was not within its power to do so. The Political Code provides for payment of taxes by instalments, a word which is used in various sections of the code. If the legislature had intended to provide for the cancellation of unpaid instalments appropriate language to that effect doubtless would have been used. By using the word portion rather than the word instalment it must be considered that the legislature intended to provide for a situation where a municipality or other state agency acquires a portion of a lot or tract.

“The fact that the property involved might possibly revert to private ownership is not of consequence in the present discussion. The property is in the ownership of the City of Los Angeles. The taxes were upon an assessment of the property and not upon a reversionary or other lesser interest. An assessment upon a lesser interest would not have been possible since it has not come into existence. ’ ’

The judgment is reversed.


source: Caselaw Access Project

author: SHENK, J.

license: Public Domain

text:
    [L. A. No. 16657.
    In Bank.
    December 1, 1938.]
    ELIZABETH A. DAVIS, Appellant, v. COUNTY OF LOS ANGELES (a Public Corporation) et al., Respondents.

      Roy A. Linn for Appellant.

      J. H. O’Connor, County Counsel, W. B. McKesson, Deputy County Counsel, Tanner, Odell & Taft and Ray C. Eberhard for Respondents.
    Earl Warren, District Attorney, Alameda County, Ralph E. Hoyt, Chief Assistant District Attorney, and Agnes R. Polsdorfer, T. A. Westphal, Jr., and Lynn J. Gillard, Deputies District Attorney, as Amici Curiae, on Behalf of Respondents.
   SHENK, J.

By this action for an injunction and declaratory relief the plaintiff sought to test the validity of the emergency clause of Statutes of 1937, page 153. That act repealed the act of 1,929 (Stats. 1929, p. 357), which provided for the payment of retirement compensation to teachers and other employees. The act of 1929 was declared unconstitutional in Los Angeles City School Dist. v. Griffin, 3 Cal. (2d) 651 [46 Pac. (2d) 141].

The 1937 enactment presented a different plan or method for adopting a pension and retirement system in the school districts throughout the state. Section 5.1100 thereby added to the School Code, provides that in any school district in which the employees are not entitled to the benefits of a pension or retirement system maintained by a city, city and county, or county, the governing board of the district shall have power in its discretion to submit, and upon a petition duly signed and filed as prescribed it must submit, to the qualified electors of the district “the proposition of establishing a plan for a district retirement salary under the provisions of this article”, to be paid to teachers and such other employees as the board may determine.

By section 5.1101 “the proposition of establishing such plan may be submitted to the electors of the district at any general or special election”, also authorizing the governing bodies to call and hold elections for such purpose. The same section permits the consolidation of elections where “the governing board calling such an election is the governing board of more than one school district and calls elections in two or more districts to submit to the electors of the respective districts, on the same day, in the same territory, or in territory which is in part the same, the question whether a district retirement plan shall be established in such respective districts”. Other particulars are specified including requirements for posting and publishing notice of the election. The form of ballot is prescribed. A majority vote favorable to the proposition bestows upon the board the power and imposes upon it the duty of establishing a district retirement salary for teachers and employees.

Section 5.1102 designates the teachers and employees who shall be bound by the burdens and benefits of the plan.

Before formulating the plan the board must, pursuant to section 5.1,103, and after inquiry and hearing, find rates of contribution which are substantially in accordance with the more recent generally prevailing rates of such contributions in established retirement systems of public institutions, and determine that such plan is in accordance with sound business practice and recognized actuarial methods. This section establishes minimum and maximum retirement salary payments. It also requires the levy and collection of district taxes to provide funds for the retirement payments.

Section 5.1104 specifies the period of service and minimum age limits of a beneficiary of the system, with certain exceptions in cases of disability. Section 5.1105 provides for a “retired list”. Section 5.1106 gives to the governing boards general rule-making power in aid of the provisions of the act. A “District Retirement Fund” is defined by section 5.1107, a record of which is required to be kept upon the books of the auditor and county treasurer. It includes contributions received from teachers and employees and moneys from all other sources properly allocable to the fund. By the same section members of governing boards are charged with the performance of such duties and responsibilities without additional compensation. Also serving without compensation is a district retirement board (section 5.1108) composed of not less than three nor more than seven members, upon which the governing board, the teachers and other employees in the district shall be represented, to be selected by them by secret ballot, and of which the county treasurer shall be ex officio a member. Section 5.1109 places in the charge and control of the district retirement board, the district retirement fund and the payment of all retirement salaries and annuities. This board is also charged with the investment and management o£ the fund. The attorney for the governing board of the district is directed to act as attorney for the district retirement board without additional' compensation. Securities purchased are to be deposited with the county treasurer for safekeeping. The same section provides that the duties reposed by the act in “the county treasurer shall be deemed a part of his official duties, for the faithful performance of which he shall be liable upon his official bond’’. The county auditor is required to audit the accounts of the district retirement board at least once a year and report upon the financial condition thereof to the governing board of the district.

Sections 5.11,10 and 5.1111 indicate that the plan is not intended to displace retirement salaries otherwise provided by law but is in addition thereto.

In a separate section of the act the legislature declared the immediate effect of the act as an urgency measure necessary for the preservation of the public peace, health and safety. The section also contains a statement of the facts deemed to constitute the necessity.

The act was approved by the Governor on April 22, 1937. Immediately following its approval the board of education of the city of Los Angeles, as the governing board of the city elementary school district, the city high school district, and the city junior college district, voted to call an election to be held on May 4, 1937, for the purpose of submitting to the electors of those districts the proposition of establishing a retirement plan as authorized by the act. The board thereby also voted to consolidate the election for such purpose with a general municipal election theretofore called for the same day. Notice of the call was given as prescribed. At the elections the proposition was submitted to the voters in the three districts, and passed by a large majority vote.

On August 5, 1937, the board adopted rules and regulations for a retirement plan pursuant to the act and subsequently filed with the superintendent of schools its retirement budget requirements, including $451,490 for the elementary school district, $510,380 for the high school district, and $19,630 for the junior college district, a total of $981,500. On September 1, 1937, the board of supervisors accordingly set the appropriate tax rate for each of said districts and levied the same upon the taxable property in the respective districts.

A petition that the act be referred to a vote of the people of the state was not filed.

The plaintiff herein, owner of property in the three districts, sought a declaration of the invalidity of the proceedings purporting to levy the tax to raise retirement funds pursuant to the act and the plan. The trial court found favorably as to the validity and constitutionality of the act and the emergency clause giving it immediate effect; further that any irregularity in the call and conduct of the election of May 4th did not affect the result. The plaintiff appealed from the judgment entered pursuant to those findings.

The plaintiff attacks the validity of the urgency clause and contends that in any event the act did .not become effective on April 22, 1937; and consequently that the election of May 4, 1937, was a nullity.

Section 1 of article IV of the state Constitution vests legislative power in the senate and assembly, but reserves to the people the powers of the initiative and referendum. An act passed by the legislature does not become effective until 90 days after the final adjournment of the legislative session at which the act was passed. Exceptions are acts calling elections, acts providing for tax levies or appropriations for the usual current expenses of the state, and urgency measures necessary for the immediate preservation of the public peace, health or safety, passed by a two-thirds vote of all members elected to each house. The Constitution provides: “Whenever it is deemed necessary for the immediate preservation of the public peace, health or safety that a law shall go into immediate effect, a statement of the facts constituting such necessity shall be set forth in one section of the act, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereonprovided, however, that no measure creating or abolishing any office or changing the salary, term or duties of any officer, or granting any franchise or special privilege, or creating any vested right or interest, shall be construed to be an urgency measure. Any law so passed bj^ the legislature and declared to be an urgency measure shall go into immediate effect.”

Section 3' of the act here in question contains the following statement of facts deemed by the legislature to constitute the necessity: “The School Code was amended by the Legislature at its 1,935 session to permit governing boards of school districts to discharge teachers who have reached the age of sixty-five years, which amendment will become effective September 1, 1937. Many boards of education desire to take advantage of the provisions of said amendment, and to avoid the hardships which will follow the discharge of many teachers aged sixty-five years or more and to avoid the possibility of placing such teachers and their families and dependents on relief rolls of their respective counties, such boards desire to establish district retirement plans for their employees, as authorized herein. This act requires that the establishment of such plan be submitted to the vote of the people of the school district, and many municipal and school district elections are to be held during the months of April and May, 1937, at which such propositions can be submitted to the voters of the respective districts, at a large saving to the taxpayers of the respective districts.”

The plaintiff contends that the foregoing statement does not show any necessity for the preservation of the public peace, health or safety, and for that reason the urgency declaration was ineffective as such.

It is urged by the defendants that a sufficient answer to all of the grounds of the plaintiff’s opposition to the effectiveness of the legislation as an urgency measure is that the act is not self-executing but is rather an enabling act and requires an election to be called and held in the district to be affected thereby before the powers to be exercised thereunder are vested in the appropriate body. The argument that the urgency clause of the act, if effective, cuts off unwarrantedly the power to exercise the referendum loses much of its power for the reason that the voters still must register their assent to be bound by the act. But we need not rest our conclusion that the act was effective urgency legislation upon that observation.

It is apparent that there is a conflict in the authorities on the question whether a legislative declaration of urgency is binding on the courts. It has been held by some courts, and probably by the weight of authority, that the declaration of the existence of the emergency or necessity is exclusively within the exercise of the legislative function, and if the prescribed procedure has been followed the law is immediately effective and the declaration is not subject to review in the courts. (Kadderly v. City of Portland, 44 Or. 118 [74 Pac. 710, 75 Pac. 222]; City of Roanoke v. Elliott, 123 Va. 393 [96 S. E. 819]; Orrick v. City of Ft. Worth, 52 Tex. Civ. App. 308 [114 S. W. 677]; Joplin v. Ten Brook, 124 Or. 36 [263 Pac. 893, 894]; Simpson v. Winegar, 122 Or. 297 [258 Pac. 562]; State v. Kennedy, 132 Ohio St. 510 [9 N. E. (2d) 278, 110 A. L. R 1428]; Hill v. Taylor, 264 Ky. 708 [95 S. W. (2d) 566]; Hutchens v. Jackson, 37 N. M. 325 [23 Pac. (2d) 355].) The basis for the foregoing conclusion is that the law makers in the process of enacting laws must pass upon all questions of expediency, necessity and fact connected therewith (see, also, Stevenson v. Colgan, 91 Cal. 649 [27 Pac. 1089, 25 Am. St. Rep. 230, 14 L. R A. 459]), “and must, therefore,' determine whether a given law is necessary for the preservation of the public peace, health and safety. It has always been the rule, and is now everywhere understood, that the judgment of the legislative and executive departments as to the wisdom, expediency or necessity of any given law is conclusive on the courts and cannot be reviewed or called in question by them. It is the duty of the courts, after a law has been enacted, to determine in a proper proceeding whether it conflicts with the fundamental law, and to construe and interpret it so as to ascertain the rights of the parties litigant. The powers of the courts do not extend to the mere question of expediency or necessity, but, as said by Mr. Justice Brewer, ‘they are wrought out and fought out in the legislature and before the people. Here the single question is one of power. We make no laws. We change no constitutions. We inaugurate no policy. When the legislature enacts a law, the only question which we can decide is whether the limitations of the Constitution have been infringed upon’. (Prohibitory Am. Cas., 24 Kan. 700, 706.) The amendment excepts such laws as may be necessary for a certain purpose. The existence of such necessity is therefore a question of fact, and the authority to determine such fact must rest somewhere. The Constitution does not confer it upon any tribunal. It must therefore necessarily reside with that department of the government which is called upon to exercise the power. It is a question of which the legislature alone must be the judge, and, when it decides the fact to exist, its action is final . . . (citing eases).” (Kadderly v. City of Portland, supra.)

The view opposed to the foregoing, expressed in the case of State v. Meath, 84 Wash. 302, 304 [147 Pac. 11] (see, also, State v. Hinkle, 116 Wash. 1 [198 Pac. 535]; State v. Hutchinson, 173 Wash. 72 [21 Pac. (2d) 514]; State v. Martin, 173 Wash. 249 [23 Pac. (2d) 1, 4]), leans toward a policy which would accord the greatest effectiveness to the exercise of the right of referendum. (For further discussion and citation of cases see Hutchens v. Jackson, supra, and note, 7 A. L. R. 519 et seq.)

It is unnecessary to enter upon a further analysis of the cases in other jurisdictions supporting the divergent views. In this state in Stevenson v. Colgan, supra, at page 652, it was said: “The authority and duty to ascertain the facts which ought to control legislative action are, from the necessity of the case, devolved by the Constitution upon those to whom it has given the power to legislate, and their decision that the facts exist is conclusive upon the court, in the absence of an explicit provision in the Constitution giving the judiciary the right to review such action. ’ ’ The reasoning of the case of Kadderly v. City of Portland, supra, as applied to statements of necessity in urgency measures, is reflected in the early decisions of this court. (Franklin v. State Board of Examiners, 23 Cal. 1; People v. Pacheco, 27 Cal. 175, 176, 221.) There is nothing to the contrary to be inferred from In re Hoffman, 155 Cal. 114 [99 Pac. 517, 132 Am. St. Rep. 75]. That case involved a purported urgency ordinance of the city of Los Angeles regulating the sale of milk and cream. As indicated in Joplin v. Ten Brook, 124 Or. 36 [263 Pac. 893, 895], restrictions may be imposed upon the power exercised by a city legislative body to declare the urgency nature of an ordinance which are not imposed by the Constitution upon the state legislature. In the same category as the Hoffman case are the cases of Los Angeles G. & E. Corp. v. City of Los Angeles, 163 Cal. 621, 629 [126 Pac. 594], and Morgan v. City of Long Beach, 57 Cal. App. 134 [207 Pac. 53].

Since the adoption by the people in 1911 of section 1, article IV of the Constitution, reserving the powers of the initiative and the referendum, the courts have nevertheless adhered to the fundamental philosophy that questions of fact, necessity and expediency are for the legislature. It has been felt that the requirement for a statement of the facts constituting the necessity in emergency legislation does not modify the principle nor bestow upon the judiciary power to declare the declaration invalid unless it “appears clearly and affirmatively from the legislature’s statement of facts that a public necessity does not exist”. (Stockburger v. Jordan, 10 Cal. (2d) 636 [76 Pac. (2d) 671], citing Hollister v. Kingsbury, 129 Cal. App. 420 [18 Pac. (2d) 1006], and In re McDermott, 180 Cal. 783 [183 Pac. 437].) Thus in the Stockburger ease it was also said: “The legislature having determined by the declaration contained in said act that the enactment of said statute was necessary for the immediate preservation of the public peace, health and safety, and the determination of the legislature of the existence of such necessity being conclusive upon the courts, we are precluded in these proceedings from further questioning the necessity for such legislation.”

There is no clear and affirmative showing on the face of the statement of facts included in the present act such as would justify this court in concluding that the legislative declaration of the existence of a public necessity was invalid. Certainly it is not for the court to say that, since the previous act of 1929 was declared unconstitutional, and since an act passed in 1935 (Stats. 1935, p. 1881) divested teachers attaining age of 65 of their permanent tenure from and after September 1, 1937, the acute situation indicated in the statement with respect to teachers expecting retirement has not arisen. That such a situation has or might have a direct bearing upon the public health, peace and safety, cannot be doubted. Nor may we conclude that an early vote by the electors on the proposition to authorize the establishment of a retirement plan would not serve an immediate necessity involving the public health, peace and safety in addition to affording the opportunity for public economy obtained by consolidating the elections provided for with general elections already called. If there is any doubt as to whether the facts do or do not state a case of immediate necessity, that doubt should be resolved in favor of the legislative declaration (Naudzius v. Lahr, 253 Mich. 216 [234 N. W. 581, 585 [74 A. L. R. 1189]); or, as it has otherwise been stated, “if fair-minded and intelligent men might reasonably differ as to the sufficiency and truth of the fact assigned for placing the act in effect immediately upon its passage, the courts are concluded by the finding” (Jumper v. McCollum, 179 Ark. 837 [18 S. W. (2d) 359, 361], and cases referred to); or, if the legislature “states facts constituting an emergency so that its action cannot be said to be arbitrary, courts cannot say that it has not performed its constitutional duty, even though they may disagree with the legislature as to the sufficiency of declared facts to constitute a sufficient reason for immediate action”. (Baker v. Hill, 180 Ark. 387 [21 S. W. (2d) 867, 868].)

We are brought then to a consideration of the question whether the act creates any office or changes the salary or duties of any officer, or creates any vested right or interest so as to defeat the immediate effectiveness thereof.

The plaintiff contends that “additional burdens are placed upon” the school board, the county treasurer, county auditor, county school superintendent and the county counsel by the new provisions of the School Code; that the duties of the officers and boards are enlarged and increased by the provisions of the statute, and that section 5.1108 creates the offices of members of a district retirement board. A sufficient answer to these contentions would seem to be that until the election authorized by the act has resulted in favor of the adoption of the proposition to establish a retirement plan, none of the provisions of the act controls or governs in the district or districts. If the election is not held in any school district in the state, then the act would have no more effect upon the duties of officers or otherwise than if it had never been passed.

In support of her contention that the additional duties devolving upon the school board, the county treasurer, auditor, school superintendent and counsel effect a “change” in their respective duties, the plaintiff relies on the recent decision of this court in Stockburger v. Jordan, supra. That case involved the validity of the urgency declaration purporting to give immediate effect to chapter 304 of Statutes of 1937 (p. 665), which related to the development, production, and disposition of oil, gas and other hydro-carbon substances from' state-owned tide and submerged lands at Huntington Beach. The act purported to vest immediately in the director of finance the power and duty to secure the development, extraction, removal and sale of oil and gas, to acquire by condemnation or otherwise property necessary for government access to the lands, and if the oil lands be leased to others, to dispose of leases thereof for production purposes, or to obtain the immediate drilling thereof if bids for leases are not received. When, in that case, this court concluded that such a material and substantial addition to the duties of the director of finance was a “change” of duties within the meaning of the pertinent constitutional section, it was not intended that it should be inferred therefrom that every addition to the duties devolving upon public officers should be deemed to constitute a “change” of duties. The definition of “change of duties” adopted in that case was not intended to embrace such additional duties imposed by law the performance of which would naturally devolve upon the officer had no express mention thereof been made in the act, and as otherwise would be incidental to his office. • Obviously such was not the situation in the Stoekburger case. The new and special character of the additional duties imposed upon the director of finance under the act involved in that case was entirely foreign to the duties theretofore devolving upon him by law.

Inasmuch as the provisions of the act or the code sections do not impose undue or material and substantial additional burdens or duties upon the officers mentioned, different in nature from those already required of them by law, we conclude that such provisions did not produce a “change” either in the salary or duties of those officers.

The act does not create any vested right or interest, if for no other reason than that claims to pension, whether inchoate or vested, cannot arise under its provisions until the electors vote to authorize the establishment of a plan, and the plan is accordingly formulated and put into effect. It is therefore not necessary at this time to determine the nature of that right.

The act is not special or “class” legislation, nor does it lack uniformity of operation. It is a general law applicable throughout the state for the benefit of every school district whose electors vote to take advantage of its provisions.

The act docs not delegate to boards of education legislative functions. Acting within its recognized powers, the legislature has provided for delegation to the boards of governors of only the administrative duties to establish the details of the plans for retirement pensions subject to the limitations and requirements prescribed by the act. That such plans must differ in each section of the state, in accordance with its needs, or even within different districts in the same section of the state, must be obvious. The legislature was acting within its proper function in delegating to the local governing boards the discretion to formulate the details of a retirement plan pertaining to such matters as determining what persons are within the class entitled to benefit under the law, what are the recent generally prevailing rates of contribution in public institutions and the rate to be adopted based thereon, and what are the sound business practices and actuarial methods and the introduction and application thereof in the plan to be adopted. The delegation by the legislature of the performance of such duties guided by the rules prescribed is not unlawful. (Tarpey v. McClure, 190 Cal. 593, 600 [213 Pac. 983]; People v. Monterey Fish Products Co., 195 Cal. 548, 558 [234 Pac. 398, 38 A. L. R. 1186]; 5 Cal. Jur. 679, 681.)

Differences which may result from methods of administration depending upon differences for instance in population, do not create any unlawful discrimination. (Grigsby v. King, 202 Cal. 299 [260 Pac. 789]; Morris v. Board of Education, 119 Cal. App. 750 [7 Pac. (2d) 364, 8 Pac. (2d) 502].)

Finally the plaintiff contends that certain irregularities occurred in the call and conduct of the election of Hay 4, 1937, which avoided the proceedings and resulted in an invalid tax for the purposes of the plan established by the Board of Education. Of the three districts mentioned herein, the elementary school district of Los Angeles city is the smallest in area; the high school district is the next larger and the junior college district is the largest. However, the elementary school district is embraced entirely within the high school district, and the high school district is within the junior college district. The Board of Education submitted to the voters in all three districts the following proposition: ‘ ‘ Shall the governing board of the Los Angeles City School District of Los Angeles County, Los Angeles City High School District of Los Angeles County, and Los Angeles Junior College District of Los Angeles County be authorized to establish a plan for a district retirement salary for the teachers and such other employees of such districts as such governing board may determine. ’ ’ The submission to the electors of the proposition in the form stated was in accordance with section 5.1101, added to the School Code, permitting consolidation of elections for several districts when the same board is the governing board of more than one district, and prescribing the wording of the proposition to be submitted accordingly which is substantially identical with that drafted by the board and submitted at the election of Maj*- 4th. The facts shown in the record bearing upon the plaintiff’s contention that irregularities existed have been examined. It appears that 95 per cent of the registered voters live in the territory comprising the elementary school district, and therefore in territory which is common to all three districts. At the election 206,353 votes were cast in favor of the proposition, and 84,178 against it. In the precincts outside the elementary school district a total of 2,673 votes was cast, 675 of which were unfavorable to the proposition. It may not be supposed that those voting favorably to the establishment of a plan for all three districts would so have registered their choice if they had been in favor of establishing a plan for only one district. The manner of submitting the proposition was not contrary to the act. The legislature might well have contemplated that boards of education could properly determine that Such a plan should encompass all three such districts governed by one board, or none at all. These facts and considerations also support the finding of the trial court that misdescription of outlying precincts in the notice of election did not mislead the voters, was immaterial and did not affect the result of the election. Such alleged error related to merely directory provisions. Technical errors or irregularities arising in carrying out directory provisions which do not affect the result will not avoid the election. (Rideout v. City of Los Angeles, 185 Cal. 426, 430 [197 Pac. 74]; East Bay Mun. Utility Dist. v. Hadsell, 196 Cal. 725 [239 Pac. 38].) The trial court’s finding was a proper application of the policy. that an election will not be declared a nullity, if upon any reasonable basis such a result can be avoided.

The judgment of the trial court denying to the plaintiff the relief sought by her is affirmed.

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


author: SEAWELL, J.

text:
    [L. A. No. 16281.
    In Bank.
    December 3, 1938.]
    CHARLES H. TUCKER et al., Respondents, v. GRACE FREEMAN NICHOLSON, as Executrix, etc., Appellant.

      Newton M. Todd and Fred A. Watkins for Appellant.
    Will H. Winston for Respondents.
   SEAWELL, J.

The three plaintiffs allege that they paid in full a deficiency judgment entered against them and six other persons after a mortgage foreclosure sale. They bring the present action against the executrix of the estate of one-of said six judgment debtors to recover his proportionate part of the debt paid by plaintiffs. Defendant executrix prosecutes this appeal from a judgment that she is liable in the sum of $4,026.09 for one-fourth of the deficiency judgment.

The deficiency judgment was entered on August 23, 1932. On July 22, 1933, the plaintiffs herein paid to the judgment creditor $5,816.61, and delivered to her a promissory note and deed of trust for $11,000 executed by plaintiff Frank W. Barnes and his wife. On said date the judgment creditor executed and delivered an assignment of the judgment to Will H. Winston, the nominee of plaintiffs. The total of the cash paid and the principal sum of the $11,000 note equal the full amount of the deficiency judgment, with interest from the date of judgment and costs.

Almost a year later, on July 19, 1934, Winston executed an acknowledgment of satisfaction of the judgment which was filed for record.' On the same date the plaintiffs filed a notice of payment and claim to contribution under section 709, Code of Civil Procedure. Under the provisions of said section a joint judgment debtor who pays more than his proportion of a debt “is entitled to the benefit of the judgment to enforce contribution or repayment, if, within ten days after his payment, he file with the clerk of the court where the judgment was rendered, notice of his payment and claim to contribution or repayment”.

In the instant case no payment of any sort took place on July 19, 1934. The only payment made was on July 22, 1933, at which time plaintiffs took an assignment of the judgment in the name of Will IT. Winston, their attorney. Plaintiffs were not authorized under section 709, Code of Civil. Procedure, to file a notice of claim for contribution within ten days of July 19, 1934, and the filing of said claim was a nullity.

The remedy provided by said section, however, is not exclusive, but cumulative. Instead of proceeding thereunder the debtor upon paying the judgment may take an assignment thereof from the judgment creditor. (Williams v. Riehl, 127 Cal. 365 [59 Pac. 762, 78 Am. St. Rep. 60]; La Fleur v. M. A. Burns Lumber Co., 188 Cal. 321 [205 Pac. 102]; Tompkins v. Powers, 106 Cal. App. 464 [289 Pae. 685]; 19 Cal. Law Rev. 196; 6 Cal. Jur. 509, 515; 23 Cal. Jur. 1084.) The assignment may be taken in the name of the judgment debtor, or, as in the instant case, in the name of a third party. Whether the judgment debtor proceeds under section 709, or by taking an assignment of the judgment, the payment to the judgment creditor does not operate as a satisfaction of the judgment as between the debtor paying it and those jointly liable with him. (Cases cited, supra, this paragraph and also, Forsythe v. Los Angeles Ry. Co., 149 Cal. 569, 573 [87 Pac. 24]; McIntosh v. Funge, 128 Cal. App. 70 [16 Pac. (2d) 1006].) The judgment is kept alive in equity to be used by the debtor paying to recover from his co-obligors the proportions they should pay, and he may have execution against them. (Williams v. Riehl, supra; Clark v. Austin, 96 Cal. 283 [31 Pac. 293]; Davis v. Heimbach, 75 Cal. 261 [17 Pac. 199].) Since his remedy in such circumstances is upon the judgment itself, the period of limitations is five years. (Sec. 336, Code Civ. Proc.; see Manuel v. Hicks Iron Works, 216 Cal. 459 [14 Pac. (2d) 756].)

But where the judgment debtor neither takes an assignment nor proceeds under section 709, Code of Civil Procedure, payment to the creditor constitutes satisfaction not only as to him, but also as between the judgment debtor making payment and his co-obligors. (National Bank v. Los Angeles etc. Co., 2 Cal. App. 659 [84 Pac. 466].) The remedy of the judgment debtor is then upon the obligation which the law implies that those jointly liable with him shall reimburse him to the extent of their proportion of the joint debt. The period of limitations upon this implied obligation is two years from the date payment is made to the creditor. (Sec. 339, subd. 1, Code Civ. Proc.; Manuel v. Hicks Iron Works, supra; Hurlbut v. Quigley, 180 Cal. 265, 271 [180 Pac. 613]; Richter v. Henningsan, 110 Cal. 530, 537 [42 Pac. 1077]; Chipman v. Morrill, 20 Cal. 130, 131.)

In the instant case the action is brought in time if the five-year period of limitations dating from entry of the deficiency judgment applies, but too late if the two-year period from date of payment to the creditor (July 22, 1933) is controlling. Defendant contends that the two-year period governs for the reason that plaintiffs caused their nominee, Will II. Winston, to execute and file a satisfaction of judgment on July 19, 1934. Said satisfaction of judgment and also the notice of claim for contribution under section 709, Code of Civil Procedure, were filed on that date under mistake. No payment of any sort took place on July 19, 1934, and the filing of the claim under section 709, Code of Civil Procedure, within ten days of that date was unauthorized. Plaintiffs should not lose their rights under the assignment of July 22, 1933, by reason of the abortive filing of said instruments of July 19, 1934. (See Merchants Nat. Bank v. Great Falls Opera House, 23 Mont.. 33, 34 [57 Pac. 445, 75 Am. St. Rep. 499, 45 L. R. A. 285].) It is not shown that defendant or her testate relied on said instruments to their prejudice. We conclude that the plaintiffs’ right of action is upon the judgment by virtue of the assignment to them, and hence is not barred.

The complaint is framed on the theory that plaintiffs are proceeding under section 709, Code of Civil Procedure. The judgment in any -event must be reversed for the reason that defendant is not liable for so large a proportion as one-fourth of the deficiency judgment. Plaintiffs’ remedy, although on the original judgment, is not, in the circumstances of this case, under section 709, but by virtue of the assignment of the judgment to them. Before retrial to determine the extent of defendant’s liability plaintiffs should amend their complaint.

In the instant case payment to the judgment creditor was in part by means of the promissory note of plaintiff Barnes and his wife, secured by deed of trust. Payment by the debtor’s personal note to the creditor gives rise to a right of contribution if accepted by the creditor in satisfaction of the debt. (Ralston v. Wood, 15 Ill. 159 [58 Am. Dec. 604]; Brooklyn Life Insurance Co. v. Dutcher, 95 U. S. 269 [24 L. Ed. 410]; Larson v. Slette, 125 Minn. 267 [146 N. W. 1094, L. R. A. 1915A, 898]; Fort Jefferson Imp. Co. v. Dupoyster, 112 Ky. 792 [66 S. W. 1048, 2 L. R. A. (N. S.) 263]; Brooke v. Boyd, 80 Wash. 213 [141 Pac. 357, Ann. Cas. 1916B, 359], 13 Am. Jur. 16; Am. Law Inst. Restatement, Restitution, sec. 81, comment d.) But where the creditor retains a right of action on the obligation for which a note is given, there is not a satisfaction of the old debt. (Ellison v. Henion, 183 Cal. 171 [190 Pac. 793, 11 A. L. R. 444]; Western Fuel Co. v. S. G. Lewald Co., 190 Cal. 25 [210 Pac. 419]; 20 Cal. Jur. 920-928, citing cases.) In the instant case the creditor by unconditionally assigning the judgment to Winston, the nominee of plaintiffs, accepted the note in payment of the judgment debt.

The original note upon which the deficiency judgment was based was given for the purchase price of land. As to the payee of said note, plaintiffs and their comakers, including the defendant’s testate, were primarily liable for the entire debt. But as between themselves, each maker was primarily liable for his proportion of the debt, and a surety for his co-obligors as to the balance. (Chipman v. Morrill, 20 Cal. 130, 131, 136; Clark v. Austin, 96 Cal. 283 [31 Pac. 293]; Weed v. Calkins, 24 Hun (N. Y.), 582; 13 Am. Jur. 71.)

By the judgment of the court below defendant is held liable to contribute one-fourth of the amount of the deficiency judgment to the three plaintiffs who paid said deficiency. This is erroneous. In an action against one co-obligor for contribution he may not be held for more than his just proportion of the debt in the absence of a showing of insolvency of the other co-obligors. The liability inter se of the comakers of a note given for the purchase price of land is presumptively proportionate to their interest in the land. (Chipman v. Morrill, supra; Clark v. Austin, supra; Weed v. Calkins, supra; see, also, note, 64 A. L. R. 216; 13 Am. Jur. 26; Am. Law Inst. Restatement, Restitution, see. 85, comment, subd. f.) In the instant case the land was purchased by ten persons, and title taken in the name of a bank as trustee. Two of said persons were interested in the purchase to the extent of a 2/12 interest each, the other eight, including defendant’s testate, A. J. Nicholson, to the extent of a 1/12 interest each. Therefore, if liability is apportioned among all ten purchasers, defendant is liable for 1/12 of the deficiency judgment.

In the instant case it cannot be ascertained from the record whether liability on the deficiency judgment should be apportioned (according to interest) between all ten purchasers, or only nine. The deficiency judgment is against only nine. Whether the tenth person did not sign the note, or whether notwithstanding he signed the note he was not made a party to the deficiency judgment does not appear. If said purchaser did not sign the note for the reason that he had paid in cash upon the purchase an amount commensurate to his interest in the land, the liability upon the purchase price note and deficiency judgment should then be divided between the other nine purchasers. But if such tenth purchaser, as between himself and his co-obligors, should justly bear a portion of the debt, the rule of apportionment as between all ten purchasers is not affected by the circumstance that the creditor did not take judgment against him on said debt. A creditor by suing less than all of those jointly liable to him cannot deprive a debtor paying him of the right to hold each of his coobligors for their proportion of the debt. (Richter v. Henningsan, 110 Cal. 530 [42 Pac. 1077]; Lorimer v. Julius Knack Coal Co., 246 Mich. 214 [224 N. W. 362, 64 A. L. R. 210, 212, 223]; 13 Am. Jur. 57, 60.) It follows that the action must be retried to determine the amount of defendant’s liability.

If contribution cannot be obtained from any joint debtor by reason of his insolvency, the loss arising therefrom is borne proportionately by the solvent co-obligors. (Lorimer v. Julius Knack Coal Co., supra; Hutson’s Adm. v. Combs, 110 Ky. 762 [62 S. W. 709]; McAllister v. Irwin’s Estate, 31 Colo. 254 [73 Pac. 47]; 13 Am. Jur. 27; 64 A. L. R 224; Am. Law Inst. Restatement, Restitution, sec. 85, comment h.) But the presumption is that the co-obligors are solvent. (Williams v. Riehl, 127 Cal. 365, 371 [5 Pac. 62, 78 Am. St. Rep. 60].)

The judgment is reversed.

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


author: LANGDON, J. EDMONDS, J., Dissenting.

text:
    [Crim. No. 4169.
    In Bank.
    December 13, 1938.]
    In the Matter of the Application of ROBERT R. SIDEBOTHAM for a Writ of Habeas Corpus.

      J. B. Freeman for Petitioner.
    U. S. Webb, Attorney-General, Ralph H. Cowing, Deputy Attorney-General, P. B. Lynch, District Attorney, Solano County, and I. K. Jones, Deputy District Attorney, for Respondent.
    Breed, Burpee & Robinson, as Amici Curiae, on Behalf of Respondent.
   LANGDON, J.

Petitioner, after conviction and sentence for violation of certain provisions of the Real Estate Act, secured a writ of habeas corpus from the District Court of Appeal, and after a favorable decision in said court, was ordered discharged. Respondent sheriff then sought a hearing in this court. The sole issue before us is the constitutionality of the regulation of subdivisions under the terms of said act. (Deering’s Gen. Laws, 1937, Act 112, sec. 20 et seq.)

Section 20a of the act provides that prior to the time when subdivided lands are offered for sale or lease, the owner, his agent or subdivider shall notify the real estate commissioner in writing of his intention to sell, and in such notice shall give the name and address of the owner and the subdivider; description and area of the land; true statement of the condition of the title, particularly including all encumbrances; the terms or conditions on which it is intended to dispose of the land; and copies of contracts intended to be used. The commissioner may require “such additional information concerning the project as he may deem necessary”, and may prepare a questionnaire to be answered. Section 20b authorizes the commissioner at the expense of the owner, his agent or subdivider, to investigate any subdivision offered for sale or lease and make public his findings. Section 20e provides that the commissioner may issue an order prohibiting the sale or lease of the property if his examination shows that the sale or lease “would constitute misrepresentation to or deceit or fraud of the purchasers of lots or parcels in such subdivision”. This examination is followed by a public report (sec. 20e), and before any prohibitory order, a hearing must be held (see. 20f). After the project has been submitted to the real estate division, no material changes may be made without first notifying the division (sec. 20g). If the land is subject to a lien or encumbrance, provision must be made enabling the vendor to deliver title to each parcel sold free of such lien or encumbrance, upon completion of performance by the purchaser. (Sec. 20h.) For the purpose of the act, “subdivision” is defined as “land or lands divided or proposed to be divided for the purpose of sale or lease, whether immediate or future, into five or more lots or parcels”. (See. 20j.) Violation of these sections is made punishable by imprisonment in the county jail for not exceeding two years, or a fine not exceeding $2,000, and by suspension or revocation of a real estate broker's license. (Sec. 20l.)

Petitioner pleaded guilty to a charge of subdividing and offering for lease and sale certain land in Solano County without first notifying the commissioner, in violation of the terms of section 20a, supra. Sentence of imprisonment in the county jail for one year was pronounced, and habeas corpus was then sought on the ground that the law is invalid. It is contended that these sections are unconstitutional in that they place unreasonable burdens on the exercise of property rights, and that they are vague and uncertain. In our opinion these contentions are not sound.

The assertion that this is not valid police power legislation because it benefits only a special class, the purchasers and lessees of subdivided real estate, and not the whole public, is without substance. The police power may be, and usually is, exercised for the purpose of protecting particular classes of the public in need of such protection, and it is rare indeed that a single law includes everyone in the scope of its regulations. The object of the present law, prevention of fraud and sharp practices in a type of real estate transaction peculiarly open to such abuses, is obviously legitimate; and the method, involving investigation and disclosure of certain essential facts, and a protection for the innocent purchaser against loss of his land by foreclosure of the underlying mortgage, is perfectly reasonable.’ A safeguard against arbitrary action is provided in the requirement of a public report of the commissioner’s investigation and a public hearing on any contemplated prohibitory order. The decisions sustaining regulatory legislation to prevent fraud are numerous, and they fully support the law herein attacked. Particularly in point are People v. Craven, 219 Cal. 522 [27 Pac. (2d) 906], upholding the provisions of the Corporate Securities Act requiring an individual to secure a permit for the issuance of “certificates of interest”; and Wholesale Tobacco Dealers Bureau v. National Candy & Tobacco Co., 11 Cal. (2d) 634 [82 Pac. (2d) 3, 118 A. L. R. 486], upholding the California Unfair Practices Act. (See, also, Hall v. Geiger-Jones Co., 242 U. S. 539 [37 Sup. Ct. 217, 61 L. Ed. 480, Ann. Cas. 1917C, 643, L. R. A. 1917F, 514], on corporate securities acts; Riley v. Chambers, 181 Cal. 589 [185 Pac. 855, 8 A. L. R. 418], upholding the California Real Estate Brokers’ License Act.; Gregory v. Hecke, 73 Cal. App. 268 [238 Pac. 787], sustaining the statute preventing adulteration, false labeling or fraud in sale of germicides used for plant pests; Pacific Coast Box & Basket Co. v. White, 296 U. S. 176 [56 Sup. Ct. 159, 80 L. Ed. 138, 101 A. L. R. 853], upholding law regulating size and shape of berry containers; and many other authorities reviewed in the above decisions.)

Petitioner relies on People v. Pace, 73 Cal. App. 548 [238 Pac. 1089], wherein it was held that a provision of the Corporate Securities Act regulating the sale by an individual of securities personally owned, and not issued or underwritten by him, was an unconstitutional restriction on his right to dispose of property. We need not here consider the extent to which the Pace case has been limited by the opinion in People v. Craven, supra (see 22 Cal. L. Rev. 341), except to point out that the present legislation falls within the principles laid down in the Craven case. There the subject-matter was securities, individually owned, but issued by the defendant, and this latter fact furnished the basis for valid regulation. Here, the owner or subdivider, initiating the project, is in somewhat the same position. But a more conclusive answer to the Pace case is that the present statute requires no permit for the sale, but merely the giving of certain information to prevent fraud and oppression against lot purchasers, and this requirement, as we have already stated, is a reasonable one.

Petitioner contends that section 20j, defining “subdivision”, is arbitrary and indefinite, and also attacks the act for failure to define “misrepresentation” or “fraud”. We find no uncertainty in these terms. The legislature must necessarily choose some point at which the sale of parcels from a large tract gives rise to the possible evils which require regulation, and we cannot say that the determination of five lots is improper. And the terms “fraud” and “misrepresentation” are commonly understood and fully defined judicially.

It is also suggested that unfair or discriminatory action is permitted by the delegation of powers to the commissioner, but since nothing of the sort was alleged to have been done in the instant case, there is no such issue before us now.

The writ is denied, and petitioner is remanded to custody.

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

EDMONDS, J., Dissenting.

I am unable to agree that the legislature may constitutionally require the owner of real estate who desires to sell it in five or more parcels to notify the real estate commissioner of his intention so to do and to pay $50 or more for “an examination of the project”. The Constitution of this state provides that all persons have certain inalienable rights, among which are those of “acquiring, possessing and protecting property”. (Art. I, sec. 1, Const.) This provision guarantees an owner of property the right to dispose of it “in such innocent manner as he pleases, and to sell it for such price as he can obtain in fair barter”. (Ex parte Quarg, 149 Cal. 79 [84 Pac. 766, 117 Am. St. Rep. 115, 9 Ann. Cas. 747, 5 L. R. A. (N. S.) 183].)

Although under the police power the state may properly limit the enjoyment and disposition of property, ordinarily such regulations will be upheld only where they are reasonably related to the health, morals or safety of the public. Even a purpose to protect people from their own folly will not overcome constitutional rights. Both the federal and state Constitutions guarantee the individual’s freedom of conduct, and although there are certain limitations which may be placed upon that freedom, in my opinion the act here before the court is not a regulation which it is within the legislative power to impose.

In the leading case of People v. Pace, 73 Cal. App. 548, 559 [238 Pac. 1089], the defendant was prosecuted for a violation of the Corporate Securities Act. The court held that the police power of the state may not be invoked, under the guise of general welfare, “to interfere with the sale by an individual of liis own property when the acquiring and possession of such property is not contrary to law”. This case was followed by the District Court of Appeal in Clover v. Jackson, 81 Cal. App. 55 [253 Pac. 187], and in Pollak v. Staunton, 210 Cal. 656, 659 [293 Pac. 26], it was cited for authority for the statement that “a natural person owning securities of which he is not the issuer or underwriter may sell such securities for his own account without procuring a permit from the Commissioner of Corporations”. Later, one Lesser appealed from a judgment of conviction for violating the Corporate Securities Act and it was held that “in so far as the regulation [provided by it] takes away the right of the owner to sell his own property, it is void. . . . Under the guise of ‘regulation’ a long-established constitutional right, such as is here involved, may not be abridged”. (People v. Lesser, 123 Cal. App. 489 [11 Pac. (2d) 668].) The case of People v. Pace, supra, said the court, states a principle of constitutional rights which has broad application.

Nothing which was said in People v. Craven, 219 Cal. 522 [27 Pac. (2d) 906], is authority for upholding the statute challenged in the present case. In the Craven case this court held that the state may properly prohibit an individual from selling a security of his own issue. But the sale of a security created by an individual stands in a different category from the sale of tangible property and the regulation of the sále of securities rests upon the principle that it is within the power of government to prevent deception concerning them because their value consists in what they represent. The intangibility of securities, said the Supreme Court of the United States, require and allow regulations concerning their sale different than those which may be applied to other property. (Hall v. Geiger-Jones Co., 242 U. S. 539 [37 Sup. Ct. 217, 61 L. Ed. 480, Ann. Cas. 1917C, 643, L. R. A. 1917F, 514].)

In my opinion the statute which the petitioner was charged with violating imposes onerous and unreasonable restrictions upon owners of real property precluding them from enjoying the constitutional guaranty of ownership and control of it; hence the writ should be granted and the petitioner discharged.

Houser, J., concurred.


author: THE COURT.

text:
    [L. A. No. 16715.
    In Bank.
    December 13, 1938.]
    GEORGE I. MILLER et al., Petitioners, v. ARLIN E. STOCKBURGER, as State Director of Finance, et al., Respondents.
    George R. Wickham for Petitioners.
    U. S. Webb, Attorney-General, and R. S. McLaughlin, Deputy Attorney-General, for Respondents.
    O’Melveny, Tuller & Myers, Louis W. Myers, Chandler, Wright & Ward, Chandler P. Ward, George W. Trammell, Jr., City Attorney (Long Beach), Harlan V. Boyer, Assistant City Attorney, Henry D. Lawrence and John O. Palstine, Deputies City Attorney, Swaffield & Swaffield and Roland G. Swaffield, as Amici Curiae, on Behalf of Respondents.
   THE COURT.

Petition for writ of mandate. Petitioners sought to obtain oil prospecting permits under the Mineral Leasing Act of 1921 (Stats. 1921, chap. 303, p. 404), and subsequent amendments thereto, on certain lands situated respectively in the cities of Long Beach and Los Angeles, within the respective harbor districts thereof. The petitioners contended that the lands were tide and submerged lands in their natural state and became vested in the state of California by virtue of its sovereignty at the time of its admission to the Union, and were artificially filled at some time prior to the year 1929. The city of Long Beach, appearing as amicus curiae, on behalf of respondents, contended that by act of the legislature of 1911 (Stats. 1911, p. 1304) it became the owner of the lands here involved lying within its corporate limits. That act read as follows: ‘ ‘ There is hereby granted to the city of Long Beach, a municipal corporation of the State of California, ... all the right, title and interest of the State of California, held by said state by virtue of its sovereignty, in and to all the tidelands and submerged lands, ivhether filled or unfilled, Avithin the present boundaries of said city, and situated below the mean high tide of the Pacific Ocean, . . . ” for the establishment of a harbor, and for the construction of wharves, docks, piers, etc. (Emphasis added.)

However, the respondents contended that neither the 1911 grant to the city of Long Beach nor that of like character to the city of Los Angeles (Stats. 1911, p. 1256), conveyed the minerals, oil, gas or other hydrocarbon substances lying in or under said tide and submerged lands, whether filled or unfilled. Respondents further contended, that although the ownership of such minerals remained in the state, nevertheless such lands were not subject to prospecting permits, or leases thereunder, because of certain prohibitions in the Mineral Leasing Act of 1921, particularly sections 4 and 23 thereof, as amended in 1929 (Stats. 1929, chap. 7, p. 11; chap. 536, p. 944), which, they contended, specifically exempted the said tidelands and submerged lands from the operation of the Mineral Leasing Act. In accordance with these views, the respondents refused to issue the permits sought by petitioners and the latter thereupon sought to compel the issuance thereof by filing in this court a petition for a writ of mandate directed to respondents herein. The alternative writ issued, and respondents have filed a demurrer to the petition, which they contend should be sustained upon numerous grounds, the first of which is that during the pendency of this litigation the decision of this court in the case entitled City of Long Beach et al. v. Marshall, 11 Cal. (2d) 609 [82 Pac. (2d) 362], has rendered moot the issues presented in this proceeding. In that case it was decided that the 1911 grant of the state of its tidelands to certain coastal cities, including the cities of Long Beach and Los Angeles, conveyed the mineral rights, including those in oil and gas, to those respective cities; and it is contended in the instant proceedings that since the alleged right of the petitioners to the issuance of the permits is dependent upon the ownership by the state of the lands in question, together with the oil rights thereto, the decision in the Marshall case has divested this court of authority to issue the writ, and that the demurrer should be sustained.

Since the filing of the decision in the Marshall case, the petitioners have asserted, however, that as to the greater portion of the area involved in the instant case the decision in the Marshall case “makes it inevitable that the petition for writ of mandate must be denied because of the holding that the title to the premises sought is in the City of Long Beach (and in the City of Los Angeles) and not in the State of California”. They contend, however, that certain portions of the lands described in the petition belong to the state of California and are not included in the grants to the city of Long Beach and to the city of Los Angeles, respectively, and ask that the writ issue with respect to such portions. With regard to their contention that certain portions of the lands referred to in their petition did not pass by the grant of the state to said cities, they rely upon the case entitled Strand Improvement Co. v. Long Beach, 173 Cal. 765 [161 Pac. 975], wherein they assert it was held that the grant embraced only the tide and submerged lands situated below the line of high tide, and which were filled prior to May 1, 1911, the date of the respective acts, or otherwise stated, that by the Strand case it was held that land which was filled and and above high tide at the date of the grant, did not pass by the grant,—and that the portions of the lands they now contend did not pass to the respective cities, and to which they are entitled to permits, were filled prior to 1911, and were above the line of mean high tide, over which the tide did not ebb and flow on said May 1, 1911. They contend also that the language of the respective granting acts supports this contention, wherein it is provided that the grant shall cover “ . . . the right, title and interest of the state in and to all the tidelands and submerged lands, whether filled or unfilled, within the present boundaries of said city and situated below the line of mean high tide of the Pacific Ocean”. (Emphasis added.) The respondents call attention to the fact that no claim is made in the petition that the lands were filled prior to 1911, but that, on the other hand, the petition shows affirmatively that the lands therein described were artificially filled at a time prior to January 1, 1929, some eighteen years later. Nor does the record disclose by description or otherwise, what particular portions of the lands referred to in the petition it is now contended are owned by the state and open for prospecting permits.

Respondents also point out that the Strand case relied upon by petitioners is not authority for their contention with regard thereto, in that the court in that ease was considering the question of accretion or alluvion, formed by the natural movement of the tides, and not by artificial means such as are alleged to have been used with regard to the lands here involved; and in that regard they contend that the case entitled Patton v. City of Los Angeles, 169 Cal. 521, at pages 525 and 526 [147 Pac. 141], decides the question adversely to petitioners’ contention. There the court was considering the question of ownership of tidelands which had been artificially filled prior to 1911, and concluded that such land retained its character as tideland and was included in the 1911 grant to the city of Los Angeles. The respondents further contend that by the language of the granting acts of 1911, the legislature intended that all the lands described in the petition were intended to be granted by the state to the respective cities here involved, by its use of the language, “all of the right, title and interest of the state in and to all of the tidelands and submerged lands, whether filled or unfilled” (emphasis added), and that to hold that the legislature only intended to convey title to lands which lay below the line of mean high tide on May 1, 1911, would be to ignore the qualifying word “filled”; and that in such ease it would have been unnecessary to say anything at all about the lands being filled or unfilled for, obviously, all lands which in fact lie below the line of mean high tide of the Pacific Ocean are in fact tidelands or submerged lands; that in expressly providing that the grant included tidelands and submerged lands, whether filled or unfilled, the legislature intended to include something more than would have passed by a grant merely of “tidelands and submerged lands situated below the line of mean high tide”. It would seem clear that the only lands which the legislature could possibly have had in mind which were not included in the description “tidelands and submerged lands . . . situated below the line of mean high tide” would be lands which formerly had been situated below said mean high tide line, but which at the time of the grant, had been filled in such manner as not to lose their character as tidelands or submerged lands. As was said in the Marshall case, “ . . . the history of tideland grants in this state, and the actions of the various legislatures and the courts in connection therewith, show a general agreement that the tidelands were conveyed to municipalities in fee, subject only to the public trusts and the limitations and reservations specified in the acts; and that until the discovery of these valuable oil rights in the southern California tidelands no serious doubt was ever expressed as to the title of the municipalities”. Nowhere in either of the granting acts here involved is there to be found any language which indicates that the state intended to reserve unto itself any unspecified or indeterminate portions of the tidelands there granted, but the very purpose of the acts was to encourage the development of the tidelands and submerged lands by the cities, for the promotion of commerce and navigation.

In 26 California Jurisprudence, page 306, it is said, “ . . . accretions caused by railroad embankments cannot operate to divest the title of the state to its tidelands, or to transfer them to the adjoining littoral owners. And so if tidelands are reclaimed, the change in the character of the land does not have the effect of transferring it to the owners of the abutting upland”. (Patton v. City of Los Angeles, 169 Cal. 521, 525 [147 Pac. 141].)

Prom the foregoing it follows that by virtue of the language of the granting acts of 1911, the state conveyed “ ‘all’ the right, title and interest . . . held by said state . . . in and to ‘all’ the tidelands and submerged lands, whether filled or unfilled” to the respective cities of Long Beach and Los Angeles, and that the portions of the lands here concerned, having been tide and submerged lands in their former state, passed to the said cities of Long Beach and Los Angeles, respectively, by the 1911 grants. No opinion, however, is expressed or intended as to the ownership of the lands here involved as between the respective cities and private claimants.

In view of the conclusions herein reached, it is unnecessary to discuss other questions presented by the record.

The demurrer is sustained; the alternative writ discharged, and a peremptory writ denied.


author: SHENK, J. SEAWELL, J., Dissenting.

text:
    [Sac. No. 5244.
    In Bank.
    December 20, 1938.]
    ED PORTER et al., Respondents, v. NANETTE HOFMAN, Appellant.

      H. L. Preston and Lilburn Gibson for Appellant.
    Charles Kasch for Respondents.
   SHENK, J.

The plaintiffs obtained a judgment in damages for personal injuries to the plaintiff, Mrs. Porter, sustained when the automobile in which she was riding as a guest of the defendant overturned after skidding on wet pavement. The judgment was entered pursuant to the finding of the trial court' that the defendant was guilty of wilful misconduct. The defendant appealed from the judgment.

The only question for determination is whether the evidence supports the finding of wilful misconduct.

Mrs. Hofman and Mrs. Porter were close friends. Mrs. Hofman conducted a business in Ukiah and had occasion to drive her car on frequent trips to San Francisco, on many of which she invited Mrs. Porter to accompany her. On April 19, 1936, Mrs. Hofman invited Mrs. Porter to make such a trip with her. Mrs. Hofman also took along her seven-year-old son. The three arrived safely in San Francisco and Mrs. Hofman completed her business. Early on the afternoon of April 21st they commenced the return trip to Ukiah. Somewhere between San Francisco and Healdsburg they picked up Eugene Walker, a resident of Ukiah. Mrs. Porter sat in the front seat with Mrs. Hofman, and young Walker and the Hofman boy sat in the rear seat. At Healdsburg they encountered rain, which continued intermittently during the course of the next thirty miles. The car skidded slightly twice on the wet pavement but apparently not dangerously, and Mrs. Porter admitted that she was not frightened. However, she suggested to Mrs. Hofman that she drive nearer the center of the road and reduce her speed. There is no evidence that at any time the speed of the car exceeded 45 miles an hour, and that rate was not maintained going around curves or through towns. Numerous curves on the portion of the highway between Healdsburg and Ukiah were taken with safety and without any indication of danger. At some moment preceding the accident—-it does not appear precisely when—Mrs. Hofman asked what the boys were doing. Mrs. Porter said they were playing with a toy airplane. Mrs. Hofman turned her head and a portion of her body around for a look Avithout relinquishing her hold on the steering Avheel. At this point in their travels they Avere about six miles south of Uldah. They had just passed around a slight curve folloAving a descent on a six per cent grade, and over a straight stretch preceding another ascent. Mrs. Hofman there lost control of the ear, Avhich skidded off the pavement and on to the parallel dirt portion betAveen the paved highAvay and a fence. Por a distance of about 130 feet she attempted to hold the car and bring it back to the pavement, but at the entrance to a lane it turned over, spun on its top and landed upright on its four Avheels. It Avas in evidence that similar accidents on that part of the road Avere not unusual, eight having occurred in the six Aveeks preceding the accident here involved, and a number prior to that period.

The facts are not in dispute. But they fall far short of evidencing that condition Avhich must obtain before a defendant in such an action may be said to be guilty of wilful misconduct. What is wilful misconduct as used in section 141% of the California Vehicle Act (Stats. 1923, p. 517, now section 403, Vehicle Code, Stats. 1935, p. 93), has been reiterated many times. (See cases cited in Parsons v. Fuller, 8 Cal. (2d) 463 [66 Pac. (2d) 430], Jones v. Hathway, 22 Cal. App. (2d) 316 [70 Pac. (2d) 681], and Ceikin v. Goldman, 5 Cal. App. (2d) 162 [42 Pac. (2d) 719]; also, Wright v. Sellers, 25 Cal. App. (2d) 603 [78 Pac. (2d) 209].) In Parsons v. Fuller, supra, at page 468, this court approved the following definitions of wilful misconduct:

“Wilful misconduct is defined in the case of Norton v. Puter, 138 Cal. App. 253 [32 Pac. (2d) 172], ... as follows:
“ ‘Wilful misconduct depends upon the facts of a particular case, and necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom. (Helme v. Great Western Milling Co., 43 Cal. App. 416 [185 Pac. 510]; Olson v. Gay, 135 Cal. App. 726 [27 Pac. (2d) 922]; Walker v. Bacon, 132 Cal. App. 625 [23 Pac. (2d) 520]; Howard v. Howard, 132 Cal. App. 124 [22 Pac. (2d) 279].) Webster’s New International Dictionary, page 1379, defines “Misconduct” as “wrong or improper conduct; bad behavior; unlawful behavior or conduct, malfeasance”. (40 Cal. Jur., p. 1221.) Wilfulness necessarily involves the performance of a deliberate or intentional act or omission regardless of the consequences. In Helme v. Great Western Milling Co., supra, it is said: “ ‘Wilful misconduct’ means something different from and more than negligence, however, gross. The term ‘serious and wilful misconduct’ is described by the Supreme Judicial Court of Massachusetts as being something ‘much more than mere negligence, or even gross or culpable negligence’ and as involving ‘conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its possible consequences’. (In re Burns, 218 Mass. 8 [Ann. Cas. 1916A, 787, 105 N. E. 601].) The mere failure to perform a statutory duty is not alone, wilful misconduct. It amounts only to simple negligence. To constitute ‘wilful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. (Smith v. Central etc. Ry. Co., 165 Ala. 407 [51 So. 792].) ” ’ ” To this must be added the element included in the definition approved in Meek v. Fowler, 3 Cal. (2d) 420, 425 [45 Pac. (2d) 194], and cases following it, of actual knowledge or its equivalent that an injury to a guest will be a probable result.

We need not again enter upon a review of the considerations surrounding the enactment of the legislation and which bear upon the adoption of the quoted definition as appropriate thereunder. All of these considerations are discussed at length in the cases cited herein. It is unnecessary in this case to do more than point to the language of the above-quoted definitions to emphasize the fact that the present record is devoid of any evidence that Mrs. Hofman, if guilty of anything, was guilty of anything more than negligence, for which no recovery may be had by the plaintiffs under the provisions of the California Vehicle Act. Before liability arises there must be shown actual knowledge, or its equivalent, on the part of the defendant of peril to be apprehended coupled with a conscious failure to act to the end of averting injury. (Meek v. Fowler, supra, p. 425.) Even if it be assumed that the skidding commenced while Mrs. Hofman’s head was turned, there is no circumstance in the record disclosing either express or implied knowledge on her part that probable injury to any guest in the car would follow from any conduct on her part. On the contrary it appears that Mrs. Hofman was more concerned with the safety of her son and close friend than otherwise. There is here no conscious reckless disregard of their safety as was involved in cases such as those relied upon by the plaintiffs (see Wright v. Sellers, supra; Jones v. Hathway, 22 Cal. App. (2d) 316 [70 Pac. (2d) 681]; Jackie Coogan Prod., Inc., v. Industrial Acc. Com., 21 Cal. App. (2d) 225 [68 Pac. (2d) 750]; Frank v. Myers, 16 Cal. App. (2d) 16 [60 Pac. (2d) 144]; Candini v. Hiatt, 9 Cal. App. (2d) 679 [50 Pac. (2d) 843]; Parsons v. Fuller, 8 Cal. (2d) 463 [66 Pac. (2d) 430]; Edwards v. Bodenhamer, 7 Cal. App. (2d) 305 [46 Pac. (2d) 202]; Gieselman v. Uhlman, 7 Cal. App. (2d) 409 [45 Pac. (2d) 819]; Sanford v. Grady, 1 Cal. App. (2d) 365 [36 Pac. (2d) 652, 37 Pac. (2d) 475]; Norton v. Puter, 138 Cal. App. 253 [32 Pac. (2d) 172]; Olson v. Gay, 135 Cal. App. 726 [27 Pac. (2d) 922]; Walker v. Bacon, 132 Cal. App. 625, 630 [23 Pac. (2d) 520]), and which led to the conclusion therein that the evidence warranted a finding that wilful misconduct had occurred. In another case the driver’s act of turning to adjust the head of his sleeping companion, resulting in the truck colliding with a car coming from the opposite direction, was held not to amount to wilful misconduct, and a judgment for the plaintiff was reversed. (Bartlett v. Jackson, 13 Cal. App. (2d) 435 [56 Pac. (2d) 1298].) Similarly in other cases, some of which are cited below, the facts failed to reveal misconduct on the part of defendants within the meaning of the approved definition and the courts unhesitatingly reversed judgments or orders favorable to the plaintiffs therein. (Meek v. Fowler, 3 Cal. (2d) 420 [45 Pac. (2d) 194]; Weir v. Lukes, 13 Cal. App. (2d) 312 [56 Pac. (2d) 987]; McLeod v. Dutton, 13 Cal. App. (2d) 545 [57 Pac. (2d) 189]; Halter v. Malone, 11 Cal. App. (2d) 79 [53 Pac. (2d) 374]; Newman v. Solt, 8 Cal. App. (2d) 50 [47 Pac. (2d) 289]; Ceikin v. Goldman, supra; Lennon v. Woodbury, 3 Cal. App. (2d) 595 [40 Pac. (2d) 292]; Turner v. Standard Oil Co., 134 Cal. App. 622 [25 Pac. (2d) 988]; Howard v. Howard, 132 Cal. App. 124, 130 [22 Pac. (2d) 279]; see, also, Rail v. Mazzei, 14 Cal. App. (2d) 48 [57 Pac. (2d) 948].)

The record in this case calls for similar action.

The judgment is reversed.

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

SEAWELL, J., Dissenting.

I dissent. The only question presented on this appeal is whether the driver of an automobile is liable in damages to a guest for injuries which were the proximate result of the acts of the driver losing control of the car by reason of turning almost completely in her seat to engage in conversation with guests occupying the rear seat while the car was descending a six per cent oiled road bed, twenty feet wide with graveled shoulders, wet from rain on a cloudy day, and traveling at the rate of approximately forty-five miles per hour, as found by the trial judge, with the warning that the car had skidded but a relatively short time before the accident happened. The trial court with all the facts before it held that the driver was guilty of wilful misconduct. There is substantial evidence in the record sustaining the findings of the trial court and the judgment, in my opinion, should not be disturbed.

Rehearing denied. Seawell, J., voted for a rehearing.


author: EDMONDS, J.

text:
    [L. A. No. 16615.
    In Bank.
    December 22, 1938.]
    CORDELIA ST. CLAIR, Petitioner, v. GEORGIA P. BULLOCK, as Judge of the Superior Court, etc., Respondent.

      Henry E. Phister for Petitioner.
    Everett W. Mattoon, County Counsel, Douglas De Coster, Chief Deputy County Counsel, and W. I. Gilbert for Respondent.
   EDMONDS, J.

The petitioner in this original proceeding seeks a writ of mandate to compel the respondent Judge of the Superior Court of Los Angeles County to settle a proposed bill of exceptions which was presented in connection with her appeal from an order made after final judgment in a divorce action. The judge refused to settle the bill and, upon motion of the defendant, made an order striking it from the files.

In 1934, Cordelia St. Clair sued her husband for divorce and thereafter secured a final decree in her favor which ordered the defendant to pay to her “as and for alimony and for the support and maintenance of the plaintiff, one-half of the earnings of the defendant during the period of five years beginning on the 20th day of July, 1934, and ending on the 30th day of July, 1939”. By an affidavit filed in January, 1937, Mrs. St. Clair alleged that her former husband was then indebted to her in the sum of $10,200, which had accrued under the terms of the interlocutory and final decrees of divorce, and the court made an order directing him to appear and show cause why he should not be punished for contempt of court in not complying with the terms of the decrees previously made. Later she filed an affidavit reciting that Mr. St. Clair owed her $9,012.50 for alimony. Upon this affidavit execution issued pursuant to an order of court therefor.

Mr. St. Clair appeared in the contempt proceeding and denied that he was indebted to the petitioner in any amount. He also moved to recall the execution. After various hearings the court, on September 8, 1937, made an order that “Malcolm St. Clair is not guilty of contempt of court, and that he was not on the 15th day of June, 1937, or at any time prior thereto, indebted to the plaintiff, Cordelia St. Clair”. A separate provision of the order is “that the executions heretofore levied . . . are hereby recalled and quashed, and the Sheriff is directed to release any and all levies made thereunder and to return all property held thereunder ... to the defendant Malcolm St. Clair”. On October 11, 1937, Mrs. St. Clair filed a notice of appeal from the order adjudging the defendant “not guilty of contempt of court, and that the said defendant was indebted to plaintiff, that executions levied . . . should be recalled and quashed and directing the Sheriff to release any and all levies made thereunder and adjudging that plaintiff is not entitled to any attorney’s fees or court costs”. The proposed bill of exceptions was presented as the record for that appeal.

In her petition for the writ of mandate the petitioner alleges: ‘ ‘ That said proposed bill of exceptions was prepared, served and filed within the time allowed by law and contained all evidence that your petitioner honestly believed a bill of exceptions should contain in order to make it a fair and proper draft of a bill of exceptions. Such draft contained all of the exceptions and proceedings taken before the respondent upon which petitioner, appellant in said action, relies and included and contained all matters reviewable on the same appeal, all as required by section 650 of the Code of Civil Procedure. That said bill of exceptions specified the particulars therein in which the evidence is insufficient to justify said decision and error of law and sets forth substantially all the evidence given upon the trial relating to said specified particulars.” To this petition the respondent filed a general demurrer and an answer.

A copy of the proposed bill, containing what purports to be copies of the pleadings in the divorce action, and also of many notices of motion, affidavits and orders, as well as a transcript of the testimony of witnesses, about 150 pages in all, is presented to this court as an exhibit to the petition, The respondent judge’s answer “denies that said proposed bill of exceptions was prepared, served and filed within the time allowed by law”. She also “denies that said proposed bill of exceptions contained all evidence that a bill of exceptions should contain in order to make it a fair and proper draft of a bill of exceptions. Respondent denies that said bill of exceptions sets forth substantially, or even a fair portion of, all of the evidence given upon the trial and relating to the particulars in which the evidence is specified to be insufficient to justify the decision of respondent”. As justification for the order striking the proposed bill of exceptions from the files the respondent alleges that “after considering all of said • motions, the proposed amendments to said proposed bill of exceptions, and the stenographic report of said proceedings, together with the numerous exhibits submitted to respondent at the trial, she concluded that said proposed bill of exceptions did not contain a full and fair presentation of the evidence relating to the matters specified in said proposed bill of exceptions as errors, and that said proposed bill of exceptions was partial, meager, unfair, and a pretense and a sham, and that in order to present a fair bill of exceptions, it is the belief of respondent that either respondent or the defendant therein would be required to rewrite said bill of exceptions”.

The only points presented by the respondent as grounds for denying the relief sought by the petitioner are that (1) an order striking a proposed bill of exceptions is properly made where the proposed bill is lacking in the essentials of such a document; (2) that the writ should not issue where the proposed bill is merely a sham or pretense and the court or the defendant would be required to prepare an entirely new bill in order to provide one which will fairly reflect the evidence relating to the errors assigned by the appellant; (3) it is the duty of the superior court to settle bills of exception, not to make them; and (4) a bill of exceptions must state so much of the evidence or other matter as is necessary to explain it. However, in so far as these statements are correct principles of law, they arc inapplicable to the facts as alleged in the respondent’s answer.

As early as 1889 this court required a trial judge to settle a bill of exceptions which he certified was “inaccurate, and in many respects untrue, and contains but a meager and partial statement of the facts and proceedings leading up to and connected "with and upon which the rulings of the court therein were had that are complained of, and also a mere defective skeleton of the testimony and evidence submitted to the jury, and upon which they rendered their verdict of guilty”. (Sansome v. Myers, 80 Cal. 483, 485 [22 Pac. 212].) In this case the court said that if anything was omitted from the proposed bill of exceptions or any matter was incorrectly stated, opposing counsel should offer such amendments as would correct the omissions or errors. It is the duty of the trial judge, said this court, to see that a correct bill of exceptions is prepared and then to sign it, although he may not be called upon to prepare one. Later the District Court of Appeal held on the authority of the Sansome case “that although a proposed bill of exceptions, apparently prepared in good faith, may be but ‘skeleton’ in form, and even inaccurate in many respects, meager and partial”, nevertheless the trial judge is not justified in refusing to settle it because of these imperfections. (Kouts v. Superior Court, 135 Cal. App. 699 [27 Pac. (2d) 788].) And in Clough v. Superior Court, 17 Cal. App. (2d) 14 [61 Pac. (2d) 375], the doctrine of the Sansome case was again stated to be controlling and the respondent court directed to settle a bill.

Under the law as stated and applied in these cases, the facts alleged by the respondent in her answer, so far as they apply to the points relied upon, do not justify the order striking the proposed bill of exceptions from the files. The record presented by the petitioner shows that the bill of exceptions proposed by her is in the usual form. The defendant offered extensive amendments to it. So far as is shown, the petitioner did not decline to include these in the bill nor to revise it in other particulars. Under these circumstances the trial judge should either have allowed the amendments and directed the bill to be rewritten accordingly, or required such other changes as would make it conform to the facts. The petitioner is entitled to a record upon the appeal noticed by her.

The case of Dainty Pretzel Co. v. Superior Court, 7 Cal. App. (2d) 437 [45 Pac. (2d) 817], is not at variance with these conclusions. It came before the appellate court upon an order made by the trial judge striking the proposed bill of exceptions from the files upon the grounds, among others, “that it does not contain any of the essentials of a proposed bill of exceptions, and cannot be regarded as such; that it is not even a skeleton bill of exceptions; . . . and that a true bill could not be settled merely by suggestion of any amount of amendments to the proposed bill short of preparing an entirely new bill; ...” In declining to issue the writ, the District Court of Appeal, upon an examination of the proposed bill, held that it was deficient in the particulars specified by the trial judge and that it did not show any attempt to present such a fair and bona fide statement of the case as such an instrument should contain. However, in the present case an entirely different situation is shown.

Accordingly, the writ is granted and it is ordered that, subject to the right of the respondent judge to direct the petitioner to make and present a correct bill of exceptions to the order from which the appeal has been taken, she proceed in due course to the settlement thereof, either as already presented, or as hereafter to be presented pursuant to amendments which may be made thereto in accordance with the order of the court.

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