CALIFORNIA WATER STORAGE DISTRICT ACT (Continued). 22. JUDICIAL POWERS STATE ENGINEER ADJUSTMENT BOARD.-The claims that said act confers judicial power upon the state engineer, that in the adjustment board it has attempted to create a court, and that this board is called upon to exercise judicial powers, cannot be sustained.-Id.

23. CONSTITUTIONALITY OF ACT.-Said act is not unconstitutional in any of the provisions essential to its practical operation.-Id. 24. STATE ENGINEER-DEPARTMENT OF PUBLIC WORKS.-The words "state engineer," wherever they appear in the Water Storage Act, should be held to refer to the "Department of Public Works and the appropriate officers thereof."-Id.

CERTIORARI.

PROVINCE OF RECORD.-The province of certiorari is to review the record of an inferior court, board, or tribunal, and to determine from the record whether such court, board, or tribunal has exceeded its jurisdiction. The reviewing board is bound by the record, which must be taken as true. If the contrary is the fact, it must be corrected by motion or suggestion to the court below. If the court had jurisdiction, and the recitals in the judgment or order are sufficient to sustain it, those recitals are conclusive.-Halpern v. Superior Court, 384.

See Contempt, 2; Courts, 3, 4; Workmen's Compensation Act, 16.

CITIES. See Municipal Corporations.

CIVIL SERVICE. See Municipal Corporations, 1-3.

CLAIM AND DELIVERY.

1. CONDITIONAL SALE CONTRACT-AUTOMOBILE-FORFEITURE-FINDINGS -EVIDENCE. In this action in claim and delivery to recover an automobile held by defendant under a conditional sale contract, the evidence does not support the finding that there was no forfeiture by defendant of his rights under the contract, entitling the plaintiff to maintain the action.-Morrison v. Veach, 507. 2. CONTRACTS-DEFAULT KNOWLEDGE-WAIVER.-There can be no waiver of a default unless the party against whom the waiver is claimed had knowledge of the default.-Id.

3. ASSIGNMENT OF CONTRACT- PARTIES.-Under an assignment of a conditional sale contract for the sale of an automobile, together with all rights thereunder, for the purpose of recovery, the assignee is the legal owner of a cause of action to recover the automobile, based on a default of the purchaser, and is the proper party plaintiff in an action in claim and delivery to recover the

CLAIM AND DELIVERY (Continued).

automobile, the assignor retaining an equitable interest in the thing assigned.-Id.

COLLATERAL ATTACK. See Courts, 1.

COMMON CARRIERS.

1. INTERSTATE AND INTRASTATE BUSINESS-CONTROL BY CONGREss.— Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the state, that is entitled to prescribe the final and dominant rule.-Atchison etc. Ry. Co. et al. v. Railroad Commission, 214.

2. UNION TERMINAL DEPOT FACILITIES RAILROADS LARGELY ENGAGED IN INTERSTATE COMMERCE JURISDICTION-EFFECT OF AMENDMENT OF INTERSTATE COMMERCE ACT.-Under the Esch Cummings Act of February 28, 1920, amending the Interstate Commerce Commission Act, full power and authority over the matter of union terminal depot facilities of the railroads which are largely engaged in interstate commerce, has been vested in the Interstate Commerce Commission, and by virtue thereof the Railroad Commission of California has been divested of the power, authority and jurisdiction over that subject.-Id.

COMMON LAW. See Adoption, 1.

COMPENSATION. See Services, 1.

COMPROMISE. See Contracts, 17, 18.

CONDITIONS. See Appeal, 13.

CONSIDERATION. See Contracts, 17; Specific Performance, 1, 2.

CONSPIRACY.

PROOF CIRCUMSTANTIAL EVIDENCE. A conspiracy is almost always of necessity provable only by circumstantial evidence, that is to say, by inference reasonably deduced from facts proven, as the law recognizes the intrinsic difficulty of establishing a conspiracy by direct evidence; consequently the conspiracy complained of may oftentimes be inferred from the nature of the acts complained of, the individual and collective interest of the alleged conspirators, the situation and relation of the parties at the time of the commission of the act, and generally all of the circumstances preceding and attending the culmination of the claimed conspiracy.— Siemon v. Finkle, 611.

CONSTITUTIONAL LAW.

1. POWER OF LEGISLATURE REMEDIES. While the legislature has, ordinarily, the power to create a new remedy for the enforcement of a right or a defense against a wrong, it cannot, under the guise of creating a new statutory remedy, deprive a litigant of an existing constitutionally guaranteed right to defend, even unto a court of last resort, against the enforcement of an alleged right. This right to so defend, once existing, continues regardless of the form in which the legislature may cast the remedy.-In re SutterButte By-Pass Assessment, 532.

2. APPEAL JURISDICTION OF SUPREME COURT.-The legislature cannot by the creation of a new remedy deprive the supreme court of its constitutional grant of appellate jurisdiction if the right involved in the execution of the remedy is of a character which in its very essence is equitable and was of an equitable nature and character at the time of the adoption of the constitutional provision which gave to that court appellate jurisdiction over the subject matter of the remedy.-Id.

3. TITLE-REQUIREMENTS.-All that section 24 of article IV of the state constitution, providing that every act shall embrace but one subject, which shall be embodied in its title, requires is, that the subject must be in some way indicated by the title of the act, or be logically germane to it, and included within its scope.-Buelke v. Levenstadt, 684.

4. CONFLICT IN STATE LAW AND ORDINANCE POWER OF LEGISLATURE, When the state law and a county ordinance are in conflict the situation is not changed by the legislative declaration that the act shall be construed as though there was no conflict.-In re Mingo, 769.

5. SECTION 11 OF ARTICLE XI, CONSTITUTION-CONSTRUCTION OF.-Section 11 of article XI of the constitution is not only a delegation of power by the people of the state to the local body but it is also a limitation upon the power of the local body and also upon the power of the state legislature.-Id.

See Appeal, 14, 28, 29; California Water Storage District Act, 1-4, 7-10, 12, 20, 21-23; Criminal Law, 11, 17; Declaratory Relief, 1; Intoxicating Liquors, 1, 2; Motor Vehicle Act, 3, 9; Negligence, 22; Ordinances, 1; Public Officers, 1, 2, 5; Railroad Commission, 3; Statutes, 1; Statutory Construction, 2; Taxation, 1.

CONSTRUCTION. See Accident Insurance, 1-4; Automobile Insurance, 1; California Water Storage District Act, 5; Contracts, 3, 13, 28, 32; Wills, 2-5.

190 Cal.-52

CONTEMPT.

1. APPEAL.-An order adjudging a party guilty of contempt in refusing to make certain payments alleged to be due under the terms of a final decree of divorce is not appealable in view of section 1222 of the Code of Civil Procedure which makes orders in cases of contempt final and conclusive.-Tripp v. Tripp, 201.

2. ANNULMENT ON CERTIORARI-ESSENTIAL.-It is only when an order adjudging a party guilty of contempt is in excess of the jurisdietion of the court making it that it may be annulled on certiorari. Id.

3. CONSTRUCTION OF CODE. Section 963 of the Code of Civil Procedure authorizing appeals from orders made after final judgment is general in character and is controlled by section 1222 of such code as to orders made in cases of contempt.-Id.

CONTRACTS.

1. ESTATES OF DECEASED PERSONS

CONTRACT FOR DIVISION OF ESTATE-RIGHT OF ADMINISTRATOR-CONSTRUCTION OF CODE.-Section 1576 of the Code of Civil Procedure providing that no executor or administrator must, directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale, does not prevent heirs making a contract for the division of the estate even though one of them is also the administrator, such section being only declaratory of the principle of law existing before its enactment, that a trustee must not deal with himself.Baker v. Miller, 263.

2. EMPLOYER AND EMPLOYEE OBTAINING AND HANDLING OF CONSTRUCTION CONTRACTS-INTERPRETATION OF AGREEMENT OF EMPLOYMENT. In an action for an accounting under a written agreement providing that the plaintiffs were to enter defendant's employment for a period of five years "and to exclusively give their services toward obtaining and handling of contracts to be entered into" between defendant and others for construction work, the profits and losses to be equally divided, the defendant cannot contend that the plaintiffs were not entitled to share in the performance of any contracts which they did not both obtain and handle, where the defendant during the period of plaintiffs' activities under the agreement charged the plaintiffs with one-half of the losses on certain contracts which were obtained but not handled by them, and with their proportion of defendant's office expense, which under the terms of the agreement was chargeable as "costs of administration" against the plaintiffs' work.-Kales v. Houghton,

294.

3. CONSTRUCTION-ACTS OF PARTIES.-When the meaning of the language of a contract is doubtful the construction which the parties to it place upon it during the course of its execution will be

CONTRACTS (Continued).

adopted where the language will reasonably permit such an interpretation. Id.

4. EMPLOYER AND EMPLOYEE · - CONSTRUCTION CONTRACTS ACCOUNTING OVERHEAD CHARGE ON PARTICULAR CONTRACT-FINDING.-In such action for an accounting, the failure to make a specific finding as to whether the overhead charges for costs of administration chargeable to a certain contract were to be estimated according to the oral agreement between the parties or according to the basis fixed in the original agreement as to the chargeable overhead against work in which the plaintiffs had a right to share, did not amount to a failure to find upon a material issue, since the finding as to plaintiffs' share in the net profits for the year was sufficient to sustain the judgment based thereon.-Id.

5. STATEMENT OF ACCOUNT SETOFF · INDIVIDUAL NOTE OF ONE OF EMPLOYEES. Under such an agreement, the defendant in his statement of account was not entitled to offset against the sum due to both of the plaintiffs, the amount of the personal note of one of them made in the course of a transaction antedating the agreement and with which the other plaintiff had nothing to do.-Id. 6. SETOFF JOINT OBLIGATION-PERSONAL INDEBTEDNESS.-In the absence of insolvency or of other facts calling for the application of the rules of equitable setoff, the personal indebtedness of one of the parties to a joint agreement or obligation cannot be availed of as a setoff so as to affect the other party to such agreement or obligation without his consent.-Id.

7. RESCISSION-RESTORATION-EXCEPTION. One who seeks to rescind an agreement is not bound to restore that which he would be entitled in any event to retain.-Id.

8. SALE OF GRAPES - SUBSEQUENT ORAL AGREEMENT ABROGATION OF WRITTEN CONTRACT.-Where, after a written contract for the sale of grapes had been partly performed, the remaining grapes were damaged by rain and it was thereupon agreed that the balance of the boxes of the buyer on the place should be filled and the deal closed for the year, the trial court was justified in finding in an action for the balance due for delivered grapes that the written contract had been mutually abandoned and that the new agreement was an abrogation instead of a modification or alteration of the former contract.-McClure v. Alberti, 348.

9. ACTION FOR PRICE - PLEADING - AMENDMENT ΤΟ CONFORM ΤΟ PROOFS - LACK OF PREJUDICE. - The defendants in such action were not prejudiced by the action of the trial court in permitting the plaintiff after the evidence was closed, but before decision, to amend her pleadings by setting up the mutual abandonment of the written agreement, where all the facts were before the court