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made due and diligent search and inquiry for the findings in this regard, and the appellant the defendant by inquiring of each of several made the point in his brief. The judgment prominent county officers named, and had in favor of the respondent could not, therealso made inquiry of all other persons from fore, have been sustained on any ground. whom he could expect to obtain information The petition for hearing in bank is denied. as to the whereabouts of said defendants. The affidavit in the present case certainly

(178 Cal. 206) shows as much diligence and as strenuous an

UNION HOLLYWOOD WATER CO. V. CITY attempt to discover the whereabouts of de

OF LOS ANGELES et al. (L. A. 4061.) fendant' as did that involved in Rue V. Quinn.

(Supreme Court of California. April 29, [2] The only point stated in that case

1918. Rehearing Denied May 27, 1918.) which is not stated in the present case is 1. WATERS AND WATER COURSES 203 (12)— that the present affidavit does not declare

WATER SUPPLY-RATES_VALUATION.

Where meters installed by water company expressly, as that one did, that the affiant in new houses and the like which were not revhimself did not know the residence of said enue producing, and there was nothing to show defendant. This fact, however, is implied by that they would be in use within the year, they the language of the affidavit in almost ev.

were properly not considered in arriving at

valuation for purpose of rate making for the ery sentence, and it would be a reasonable in

year. ference from the statements therein that the 2. WATERS AND WATER COURSES Ow203(12) affiant himself was ignorant of the where -WATER SUPPLY-RATES_VALUATION. abouts of Gladys M. Clarkin. It is obvious

In an action involving reasonableness of that the persons of whom the defendant in tion to meters for which it gave a water com

water rates, where court gave a greater valuathe present case inquired would be those who pany credit than the water company gave for would be considered most likely to know the all the meters in its verified statement, or in facts sought to be discovered, much more so

its evidence, it cannot complain that the court

refused to consider some meters contained in than those of whom inquiry was made in such statement. Rue v. Quinn. Unless we can say that an 3. WaterS AND WATER COURSES Cw203 (12) affidavit is insufficient in every case where it -WATER RATES-VALUATION. does not expressly state that the affiant him In action involving reasonableness of waself does not know the whereabouts of de- ter rates, held, under the evidence, that there

was no abuse of discretion in not considering fendant, we must consider the present affida

an unused emergency plant such an essential vit sufficient. We are not willing to go to part of the system as to justify an increased that extent in indulging collateral attacks rate. upon judgments regularly rendered in pur

4. APPEAL

ERROR 1011(1)-FIND

AND

INGS OF FACT_CONFLICTING EVIDENCE. suance of law. With respect to the guard

In an action to restrain enforcement of a ian of whom inquiry was not made there is city ordinance regulating water rates, valuano claim that he was living or could have tion of property of water company arrived at been found at the time. This being the only

on conflicting evidence will no be disturbed on question presented, and the one which is de- 5. WATERS AND WATER COURSES w203(12)

appeal. cisive of the case, it follows that the court -WATER SUPPLY-RATES_VALUATION. erred in rendering the judgment for the In ascertaining the value of property of plaintiff.

a water company for the purpose of fixing The judgment is reversed.

rates, the court could fix the valuation of the water-bearing land from which percolating wa

ter was obtained without considering the valWe concur: SLOSS, J.; RICHARDS, ue of the water separate from the land, by Judge pro tem.

comparing it with similar water-bearing land

in the same locality. On Hearing in Bank.

In Bank. Appeal from Superior Court, PER CURIAM. [3] The respondent urges,

Los Angeles County; Robert M. Clark, Judge. in her petition for a hearing in bank, that

Action by the Union Hollywood Water the department failed to pass upon her con- Company to restrain the City of Los Angeles tention that the former judgment against and others from enforcing an ordinance regher had been obtained by fraud. It is true ulating water rates. Judgment for defendthat the complaint alleged, and the court ants. From an order denying a motion for found, the existence of a state of facts which, a new trial, plaintiff appeals. Affirmed. under the rule declared in Dunlap v. Steere, Haas & Dunnigan and Sheldon Borden, 92 Cal. 344, 28 Pac. 563, 16 L. R. A. 361, 27 all of Los Angeles, for appellant. Albert Am. St. Rep. 143, and similar cases, would Lee Stephens, Charles S. Burnell, E. R. have warranted equitable relief against such | Young, and Wm. P. Mealey, all of Los Anjudgment. But the appellant failed at the geles, for respondents. trial to offer any evidence in support of certain allegations material to her claim for re RICHARDS, Judge pro tem. This is an lief on the ground of fraud. The bill of ex-appeal from an order denying the plaintiff's ceptions embodies proper specifications of motion for a new trial. The action was one the insufficiency of the evidence to sustain brought to obtain an injunction to restrain

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the defendant city of Los Angeles from en-, valuation, could have effected at most a very forcing a certain ordinance regulating the small increase in plaintiff's water rates. water rates to be charged by persons, firms, [1] It is clear, moreover, that the trial or corporations supplying or distributing court was not wrong in the exclusion of these water in or to the city of Los Angeles or the 589 meters from its calculation in respect to inhabitants thereof or to or for the use of the value of the plaintiff's working proper. vessels in Los Angeles harbor for the year ties. These meters and other connections commencing July 1, 1910, and ending June were idle at the time the valuations were 30, 1911. Plaintiff was one of the corpora- made. They had never as yet come into tions coming within the terms and provi. use as a revenue producing part of the sions of the ordinance in question. The is-plaintiff's water system within said city. sue presented before the trial court was They were installed in advance of the acwhether the provisions of the ordinance, if tual necessity for their use, and there was enforced, would afford the plaintiff a rea- no sufficient showing that they would be sonable return upon its investment in the used during the year for which the rates various kinds of properties owned or used were fixed, and the other water users and by it on July 1, 1910, and which were essen- rate payers of the city should not be charged tial and necessary in its business of distrib- an additional amount, however small, in the uting water to the inhabitants of Los Angel- way of a water rate in order to yield a rees during the year in which said regulative turn to plaintiff upon a species of property ordinance was in force. It is conceded that which was not in actual use as a part of upon the hearing of the cause the trial court its system, and which was yielding no reconducted a minute and exhaustive investi- turn to plaintiff prior to the passage or gation as to the value of the plaintiff's vari- taking effect of said ordinance. ous properties and as to the extent of their

[2] In addition to this, our attention is necessary use as parts of its operating and called to the fact that the trial court, in its distributing system, and that upon these fixation of a value upon the 3,172 meters matters in controversy the testimony was and service connections of the plaintiff in much at variance. The appellant insists, actual use at the time of such valuation, however, that as to certain specified matters placed a value thereon which is much more the findings of the court have no support in than double the valuation which the plaintiff the evidence, and that the ordinance gener- itself placed thereon in the verified stateally is unreasonable and confiscatory, and ment of its properties attached to its comhence void. The first finding which the ap- plaint; and our attention has not been callpellant thus assails is the finding of the trial ed to any evidence in the record increasing court to the effect that only 3,172 of the this latter valuation. If this be so, then it service connections and meters owned by the follows that the court has already allowed plaintiff were used or necessary to be used the plaintiff a valuation upon this item of for the distribution and sale of plaintiff's its properties far greater than it was entiwater within the city of Los Angeles. The tled to have placed upon it for the purpose evidence in this respect showed that the of the fixation of a water rate, and it cannot

therefore be said that the plaintiff was in plaintiff was engaged in the distribution of water not only within a certain area within court in failing to include the 589 meters in

any wise prejudiced by any error of the the city of Los Angeles, but also in and to question in arriving at such valuation. districts without the limits of said city, and

For these reasons we are unable to say that for the purpose of operating its entire that the trial court abused its discretion in system within and without said city it own the omission of this item from its valuation ed and had in use 4,039 service connections of the plaintiff's essential properties for the and meters, and that of this number there

purpose of determining their total value and were actually in use within the city of Los of regulating its water rates. Angeles 3,172 of such service connections and meters. The evidence also showed that in the court erred in its finding that a portion

[3] The appellant's next contention is that addition to this latter number in actual use of the plaintiff's properties, known as the within said city the plaintiff owned and held Jefferson street plant, including its lots, 589 meters which were not in actual use at wells, and water rights in adjacent acres, the time the court's valuations were made. were unnecessary and not essential to its These were called dormant meters, and, ac distributing system within said city. Prior cording to the testimony of the secretary of to the organization of the Union Hollywood the plaintiff, most of these dormant meters Water Company, in the year 1906, the Jefferhad been installed in new properties, such as son street pumping plant had been owned houses which had been built, but not as yet and operated by a corporation known as rented or used. The value of these unused West Los Angeles Water Company, and was meters, according to the valuation placed by being used to supply water to the western the trial court upon those in use, would have portion of that city lying in its vicinity. amounted at best to a very small propor- Upon the organization of the Union Holly. tion of the total valuation of the plaintiff's wood Water Company, however, it took over ter Company, a part of which was this par-, ing, and, this being so, the finding of the ticular plant, and also took over the proper- court upon that subject will not be disturbed. ties of another corporation known as West We might go on dealing in detail with the Side Water Company, which was at the time other alleged errors of the trial court in arengaged in serving water to another section riving at its conclusions as to the proper of the western part of said city. After this amount and value of the plaintiff's various consolidation of these two corporations had properties for the purpose of arriving at a been effected in the name of and under the basis of total valuation upon which to predownership of the plaintiff herein the latter icate a reasonable water rate to be charged developed an additional water supply from by the plaintiff and collected from its cuscertain water-bearing lands at Sherman, tomers for the year covered by the terms of which rendered unnecessary the further op- the ordinance in question, but the discussion eration of the Jefferson street pumping would be unprofitable, since the conclusion plant, and in the beginning of the year 1908 in each of these matters must, in the state the latter was shut down, and so continued of the evidence, have rested in the sound disto be up to and after the commencement of cretion of the trial court. this action. It is conceded that this was [5] There is, however, one remaining questhe condition of things at the time of the tion which deserves separate consideration. trial, but the appellant insists that, notwith- This is the contention of the appellant that standing this fact, its Jefferson street pump- the trial court adopted a wrong principle of ing plant was being maintained by it as an valuation in its finding relative to the value emergency plant to be put into use in the to be placed upon the water-bearing lands of event of any interference with its water the appellant. The finding which the plainservice from its other sources of supply. tiff thus assails reads as follows: There was evidence, however, tending to "That plaintiff was also on said date the show that this plant was not at the time owner of water-bearing real estate constituting connected with the rest of the plaintiff's wa- bearing real estate was not of the value of

a part of said plant and system, but said waterter system, and that the installation of some $225,000, but was of the value of $92,500. And two miles of pipe would be required to make in making this finding the court does not con

sider the value of the water in said land sepasuch connection. Taking these facts into rate and apart from said land, but fixed the valconsideration, the trial court concluded, and ue of said water-bearing land by comparing its we think properly, that the Jefferson street value with similar water-bearing land in the plant, in its state of nonuse and disconnect- same locality, capable of producing a like

amount of water." edness, was not such an essential part of the plaintiff's distributing system as to justify In respect to this finding the appellant the imposition of an added water rate upon contends that it was entitled, in excess of the its customers. With the discretion of the valuation which the trial court placed upon trial court to make this finding from the its water-bearing lands as real estate, to state of the evidence before it, this court have its rights in and to the water collected will not interfere upon appeal.

or contained therein admeasured and ascer[4] The appellant's next contention, to tained as separate from and in addition to which considerable space is devoted in its the value of the land as land. The discussion opening brief, is that the trial court did not of this phase of the appellant's case has refplace an adequate valuation upon certain erence particularly to the lands of the plaineasements and rights of way over private tiff at Sherman, the waters in which are perproperty which were a part of its system for colating waters which are collected and exsupplying water to the inhabitants of Los tracted from the subsurface of said land by Angeles, and that the court, in reaching a ba- means of powerful pumps, and when so exsis for the valuation of this class of propvoirs and mains, and thence conveyed to its

tracted are transferred to plaintiff's resererty, included as unnecessary and nonessential a considerable part of the plaintiff's ac- customers. There was evidence before the quired easements and rights of way.

court that there were other lands in the vi

As to this latter contention we do not think it plaintiff which also contained these or other

cinity of the so-called Sherman lands of is sustained by a fair construction of the percolating waters derived from the same finding of the trial court, but that, with cer- higher sources as those supplying plaintiff's tain designated exceptions, such as the so said lands. It was these facts in relation to called Soldiers' Home reservoir, the Jefferson the original state of these waters prior to the street pumping plant and its adjacent water- plaintiff's extraction of them which controlbearing acres, the Day tract, etc., the trial led the conclusion of the court that they were court was undertaking to place a valuation a part and parcel of the soil itself, having upon all of the plaintiff's properties in the an appraisable valuation as a part of the nature of easements and rights of way over land through which they percolated. It was the lands of private parties. Whether or not these facts also which differentiated the casthat valuation was sufficient depends upon es cited by appellant from the case at bar; the evidence upon that subject, which evi- for in each of them the water rights which dence was detailed, extensive, and conflict. I the courts recognized as having an appraisable, value apart from the land were those | merely to the matter of sex as a qualification, appertaining to reservoirs or to surface lakes and that the Legislature was justified in deal or streams. It is not necessary to consider ing with the matter as such, so that it was no the question as to whether, in the case at was convicted of felony by a jury consisting

ground for a release from custody that one bar, the trial court might have adopted a in part of women. method of valuation in which the percolat

In Bank. Application for writ of habeas ing waters in the tract would be considered corpus by Eban Mana. Writ discharged, as appraisable apart from the value of the and petitioner remanded. land as land, for the reason that both methods of valuation were open to its adoption 0. S. Webb, of San Francisco, for respondent.

Feliz & White, of Salinas, for petitioner. under the authority of Marin Water, etc., Co. v. Railroad Commission, 171 Cal. 706, Gail Laughlin, of San Francisco, for various 715, 154 Pac. 864, Ann. Cas. 19170, 114.

organizations of women. The trial court adopted and applied the rule approved in this case as the basis for

WILBUR, J. Petitioner, convicted of a its valuation of the plaintiff's water-bearing felony by a jury consisting in part of wo lands, and having a separate valuation to men, seeks release from custody on the the pumping works, which in effect separat- ground that the act of the Legislature aued the percolating waters from these lands, thorizing women to sit as jurors is unconstiand we are of the opinion that it was not in tutional. The right to a trial by a jury is error in so doing; nor do we think that it provided for in article 1, 87, of the Constiabused its discretion in the value which it tution, adopted by the people of the state of affixed upon this portion of the plaintiff's California in May, 1879, as follows: properties, in view of the evidence before it be secured to all, and remain inviolate ; but in

"Section 7. The right of trial by jury shall The contention of the appellant that the civil actions three-fourths of the jury may renordinance under review is unreasonable, con- der a verdict. A trial by jury may be waived fiscatory, and hence unconstitutional, depends in all criminal cases not amounting to felony, for its force upon the appellant's foregoing by the consent of both parties in open court,

and in civil actions by the consent of the parcontentions as to the undervaluations of its ties, signified in such manner as may be preproperties or portions thereof, and, since scribed by law. In civil actions and cases of these have not been sustained, this final con- misdemeanor, the jury may consist of twelve, tention must of necessity also fall.

or of any number less than twelve upon which

the parties may agree in open court No other points appear in the record re quiring separate consideration.

[1, 2] The petitioner claims that the word The order is affirmed.

"men" should be inserted by proper con

struction in the Constitution, so that the We concur: ANGELLOTTI, C. J.; SHAW, Constitution would in effect read: “The right J.; SLOSS, J.; WILBUR, J.; MELVIN, J.; of trial by a jury of twelve men shall be se VICTOR E. SHAW, Judge pro tem.

cured to all," etc. This contention is based upon the proposition that when the Consti

tution provides for a trial by a jury it, by (178 Cal. 213)

necessary inference, provides for the jury as Ex parte MANA. (Cr. 2145.)

known at the common law (People v. Powell, (Supreme Court of California. May 1, 1918.) 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75), and 1. JURY Ow10_RIGHT TO TRIAL BY JUBY, that, as juries of men were provided for by COMMON LAW.

the common law, the Constitution must be Constitutional provisions guaranteeing the

thus construed. Two questions seem to be right to a trial by jury establish the right to a trial as known at common law.

thoroughly settled by the unbroken line of 2. JURY Ow39_QUALIFICATIONS OF JURY- decisions in all the states: First, that conLEGISLATIVE POWER.

stitutional provisions guaranteeing the right The qualifications of the jury is a matter to a trial by jury established the right to a subject to legislative control, and, even though prescribed qualifications may differ from those trial by a jury as known at common law; at common law, the legislation is valid.

second, that the qualifications of the jury 3. JURY Ow39-RIGHT TO TRIAL-QUALIFICA- is a matter subject to legislative control, and TIONS-JURY CONSISTING IN PART OF Wo- that, even though such qualifications may

Const. U. S. Amend. 14, forbids any state differ from those at common law, such legisto make or enforce any law abridging the priv- lation is nevertheless a valid exercise of ileges or immunities of citizens of the United legislative power. 24 Cyc. 187; People v. States, and the subsequent California Consti- Powell, supra; People v. Chin Mook, 51 Cal. tution by article 1, § 7, provides that the right of trial by jury shall be secured to all and re

597. main in violate, and by article 20, § 18, provides [3] At the time of the adoption of our Conthat no person shall on account of sex be dis- stitution (1879) the Fourteenth Amendment qualified from entering, upon or pursuing any of the Constitution of the United States prolawful business or profession, and amendment of October 10, 1911, article 2, § 1, gave women vided that: the right to vote and hold office, and the Leg- "No state shall make or enforce any law islature provided that a woman might act as which shall abridge the privileges or immuni. a juror. Held, that the legislation pointed / ties of citizens of the United States;

MEN.

а

por shall any state deprive any person of life, torney, defended by woman lawyer, liberty, or property, without due process of brought in court by a woman bailiff, and yet law, nor deny to any person within its jurisdic forced to a trial before a jury of men, be tion the equal protection of the laws." By this amendment state laws and state for jury duty at common law. It would seem

cause men only were considered as eligible Constitutions were modified or abridged so far as, necessary to conform to the rights radical an amendment of the Constitution

that the inferences to be derived from so and privileges thus created. In interpreting the right to a trial by jury as guaranteed by are quite as strong as those to be derived our Constitution, we must therefore look, from the use of the term “trial by jury." not alone to the common law, but also to this that a woman might act as a juror evidently

The Legislature of the state in providing amendment so far as it affects the right to believed that there was no longer any necesa trial by jury. The Supreme Court of the United States, in construing the effect of sity of discriminating against her as a citithis constitutional amendment upon the right

zen of the United States because she was of a colored man to a trial by jury in West disqualified. The Constitution having recog. Virginia (100 U. S. 303, 308, 25 L Ed. 664), nized her as in all respects the equal of man, said:

the Legislature was justified in doing away "The very idea of a jury is a body of men

with the discrimination which had thereto composed of the peers or equals of the person fore existed against her in the matter of whose rights it is selected or summoned to de- jury service. We do not hold that the Fourtermine; that is, of his neighbors, fellows, as-teenth Amendment to the federal Constitusociates, persons having the same legal status tion, or the Woman Suffrage Amendment to in society as that which he holds." (Italics ours.)

the Constitution of this state, were of themIt was therefore held that to try a negro selves sufficient to entitle women to act as before a jury from which his race was ex jurors, although this question has been sericluded by law was a denial of his right to ously raised and discussed, but not decided, a trial by jury as guaranteed by the Consti- by the Supreme Court of Wyoming in Mctution of West Virginia, for the reason that Kinney v. State, 3 Wyo. 719, 30 Pac. 293, 16 it deprived him of a trial by a jury compos- L R. A. 710. We do hold, however, that this ed of his “neighbors, fellows, associates, per- amendment points so clearly to the matter of sons having the same legal status in society sex as a question of qualification that the as that which he holds.” In deciding that Legislature was amply justified in dealing question the court added:

with the matter as such. "We do not say that, within the limits within Writ discharged. Petitioner remanded. which it is not excluded by the amendment a state may not prescribe the qualifications of We concur: ANGELLOTTI, C. J.; SLOSS, its jurors (italics ours) and in so doing make J.; MELVIN, J.; RICHARDS, Judge pro discriminations. It may confine the selection to males, to freeholders, to citizens, to persons tem.; VICTOR E. SHAW, Judge pro tem. within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this."

(103 Kan. 118) It will be observed, then, that the Supreme BLANTON V. KANSAS CITY COTTON Court of the United States, in determining MILLS CO. (KANSAS CITY CASUALTY the rights of citizens of the United States CO., Garnishee). LUBEK v. SAME. MYto a jury trial under the Fourteenth Amend.

ERS v. GARDNER (KANSAS CITY CASUment, bases its conclusion as to the right of

ALTY CO., Garnishee). (Nos. 21537-21539. a state to discriminate against female citi. (Supreme Court of Kansas. May 11, 1918.) zens of the United States upon the ground of the disqualification of females as jurors.

(Syllabus by the Court.; Our Constitution also expressly provides 1. INSURANCE 6-512-CONSTRUCTION OF CON(article 20, § 18):

TRACT-EMPLOYER'S LIABILITY. “No person shall, on account of sex, be dis- insurance contract agrees to indemnify the in

Where a casualty company in an employers' qualified from entering upon or pursuing any sured against loss, including expenses arising lawful business, vocation or profession."

or resulting from claims upon the insured for And while jury service is neither a “busi- damages on account of bodily injuries to emness, vocation or profession,” the Constitu-ployés, and wherein it is provided that the tion recognizes the capacity of women to en-company shall have notice of accidents and

shall not be responsible for settlements made ter upon any “lawful business, vocation or by the employer unless authority in writing is profession.” By an amendment to our Con given to the insured, excepting expenses of stitution, October 10, 1911 (art. 2, § 1), wo emergency relief, and wherein it is stipulated men were given the right to vote and hold and defend all suits

for damages unless it elects

that the company shall investigate all accidents office. If the contention of the petitioner is to settle the claims or suits, and the company, well grounded, we would then have a sit- acting under the policy, investigates accidents uation where a woman on trial for a crime and adjusts and pays claims for losses and asmight be brought to trial before a woman upon the claims of employés of the insured, the

sumes exclusive control of the defense of suits judge, prosecuted by a woman district at contract should be regarded as one to indemnify

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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