HANSEN v. NORTHWESTERN PAC. R. CO. 63 venience, and not for any necessary family purpose, was held to be solely responsible western Pacific Railroad Company and anAction by John Hansen against the Northfor damages caused through the negligent other. Judgment for plaintiff, and defendoperation of the machine. between that case and this is that the daughThe difference ants appeal. ter there was an adult and the Vehicle Act of California expressly preserves as against a parent liability for negligence committed by a minor child while operating an automobile belonging to the former. Section 24 (a) of the act (Statutes of 1917, at page 408, § 18) provides that an operator's license shall not be granted to a minor, unless the parent or parents having the custody of the applicant shall have joined in signing the application, and that the negligence of such minor shall then be imputed to "the person or persons who shall have signed the application of such minor for said license." Affirmed. F. A. Cutler, of Eureka, for appellants. that a train of the appellant company ran PREWETT, Justice pro tem. It is averred over and killed 13 blooded Jersey cows belonging to respondent, for which injury he seeks damages. The jury made an award in his favor, and the appellants bring this appeal. about three-eighths of a mile from the railRespondent maintained a dairy situated Appellant insists that the father cannot senger train of appellant company was acroad track. He knew that the morning pasbe held responsible, because it does not ap- customed to pass down the track each mornpear that he signed the application for the ing at about 8:19, and he always waited until operator's license which was issued to the it had passed before driving his cows to passon. It is true that the evidence is silentture across the track. on that question, but certain presumptions track at the regular crossing, the cows follow After crossing the may be indulged in in order to sustain the a road along parallel to the track for a disjudgment. In the first place, the evidence tance of about 400 feet before entering the showed that the father owned the machine, gate to their pasture. This road is separated and that the son lived with him. The father from the right of way by a wire fence. On was the head of the household, and the son the morning in question the respondent heard was under his control. he would be the proper person to have in- he assumed that this was the regular train. Necessarily, then, a train go down the track at about 8:19, and dorsed the application for the operator's li- In fact, however, it was a special running cense. There are two pertinent presumptions declared to exist under section 1963, Code on the regular time; the regular passenger of Civil Procedure: (15) “That official duty train being some 20 minutes late. When the has been regularly performed;" (33) "that respondent heard the special go by, he started the law has been obeyed." The trial judge his cows down the lane toward the crossing. was warranted in assuming that the father He was in the lead of the herd of 115 cows, did indorse the son's application, and that and his trained dog drove them from the rear. the officers in charge of the motor vehicle The dog had been at this work for the past department would not have issued the oper-six years. After the respondent had crossed ator's license without such indorsement being supplied. The judgment is affirmed. the track and had reached a point about 400 feet distant from the crossing (which brought him about opposite the pasture gate), We concur: CONREY, P. J.; SHAW, J. he heard the belated passenger train coming. HANSEN v. NORTHWESTERN PAC. R. He sprang over the wire fence and ran along the track, waiving his hat in a futile effort to flag the train. At this time he had reached a point about 500 feet from the crossing. CO. et al. (Civ. 4267; S. F. 9837.) From this point he saw the train rounding a curve and coming into view. It was then (District Court of Appeal, First District, Divi- distant from him about 450 feet. The engision 1, California. July 5, 1922. Hearing neer was looking along the track, and his enDenied by Supreme Court Aug. 31, 1922.) gine was then distant from the crossing nearRailroads 443 (7)-Evidence held to show train could have been stopped in this disly 1,000 feet. It is not controverted that the negligence as to cows on track. In an action for the death of cows on anot see the cows on the crossing until he tance. The engineer testified that he could crossing, evidence held to show that the engi- reached a point distant therefrom about 432 neer had knowledge of something wrong on the track in time to stop the train and prevent the accident. feet. There is evidence in the record, which Appeal from Superior Court, Humboldt tance. County; Denver Sevier, Judge. A number of cows were on the track when For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the train passed. The train ran over and killed 10 of these outright and severely maimed several others. This 1,000 feet of track describes an arc of a circle. Owing to a slight elevation in the territory within the arc, a person at its farthest extremity could not see objects upon the crossing, though a person about midway between could see both extremities. The engineer admits that he was looking ahead. If this is so, the jury had a right to believe that he could and would have seen the respondent standing on the track and waving his hat. Seeing him, it was his duty at once to stop the train, and it is clear that he had ample space within which to accomplish that result. He knew that his train was behind time, and that a special had just gone down the track on the regular schedule, and that this circumstance was likely to mislead persons near the track. He knew, also, that the respondent had been accustomed for a long period to drive his cows every day across the track to and from pasture. In the foregoing résumé the only disputed points are the position of the respondent at the time he commenced to wave his hat to the engineer and the position of the latter at that time. The story of the respondent as to these matters sounds reasonable enough, and the jury was justified in believing it. It may be added that the experts did not agree as to the distance within which the train could have been stopped, but none of them insisted that it could not have been stopped in 1,000 feet. This state of facts meets the claim of the appellants that the respondent was guilty of contributory negligence. He had been using this crossing for his cows twice a day during the period of 14 years, and this with the knowledge of the engineers of the appellant company. But, even if the respondent had been negligent, the appellants had a space of about 1,000 feet within which to stop after knowledge of something wrong on the track. Under the doctrine of the "last clear chance," the engineer should have brought his train to a stop. No other points are urged. The judgment is affirmed. that doctrine that he should have brought his train to a stop. The petition for a rehearing is denied. SHAW, C. J., LENNON and WASTE, JJ., and MYERS, Justice pro tem., concur. MOORE v. CITY COUNCIL OF CITY OF LOS ANGELES et al. (Civ. 4000.) (District Court of Appeal, Second District, Division 2, California. July 18, 1922.) 1. Statutes 199-"Manner" of doing thing does not ordinarily include time of doing it, and whether it does depends on intent. Whether the word "manner" in a statute shall be construed as including, not only the way or mode of doing a thing, but also the time of doing it, depends on the intention of the lawmakers, to be gathered from the context, and ordinarily the manner and time of doing the thing are distinct things, and “manDer" will not be construed as including the element of time, unless it appears from the context that the lawmakers so intended. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Manner.] 2. Municipal corporations 46-Constitutional provision requiring advertising of amendments to charter in same "manner" as new charter does not include element of time. Const. art. 11, § 8, providing that proposed amendments to city charter shall be advertised in the same "manner" as therein provided for the advertisement of a new charter, does not require that the amendment shall be advertised within 15 days after filing, as in the case of a new charter, in view of the further provisions for verifying the signatures to the petition and for submitting proposed amendments only during the six months preceding session of the Legislature, or thereafter and before its adjournment. 3. Municipal corporations 46-Constitution held to require submission of amendments to charter during six months preceding next session of Legislature, or before adjournment. Const. art. 11, § 8, providing that proposed charter amendments shall be submitted only during the six months next preceding a regular We concur: TYLER, P. J.; RICHARDS, J. session of the Legislature, or thereafter and Opinion of Supreme Court in Bank Denying Hearing. PER CURIAM. [1] In denying a rehearing of this cause after decision by the District Court of Appeal we desire to say that we do not approve of the statement in the last paragraph of the opinion that “under the doctrine of the last clear chance'" the engineer was required to bring his train to a stop. The last clear chance doctrine, in our opinion, is not involved in the case, and it is not under before adjournment, is the equivalent of a mandatory requirement that the amendment shall be submitted during the six months preceding the regular session next succeeding the filing of the petitions, or before adjournment of that session, and, in view of the provision that the election shall not be less than 40 or more than 60 days after the completion of the advertising, sufficiently fixes the time when the amendments are to be advertised. Original application by A. H. Moore for a writ of mandamus, directed to the City Council of the City of Los Angeles and others. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MOORE v. CITY COUNCIL 65 Alternative writ discharged, and application (be fixed by the board of freeholders, before such denied. Jones & Weller, of Los Angeles, for petitioner. Jess E. Stephens and Lucius P. Green, both of Los Angeles, and Charles B. MacCoy, of San Diego, for respondents. ** filing and designated on such charter, either at from the completion of the publication of such a special election held not less than sixty days election next following the expiration of said charter as above provided, or at the general sixty days. * * The charter of any city or city and county may be amended by proposals therefor submitted by the legislative body of the city on its own motion or on petition signed by both. Such proposals shall be submitted to the fifteen per cent. of the registered electors, or electors only during the six months next preced FINLAYSON, P. J. This is a proceeding in mandamus to compel respondents to advertise, within 15 days from July 5, 1922, a proposed amendment to the charter of the citying a regular session of the Legislature or thereof Los Angeles. On application made to this court in the first instance an alternative writ of mandate was issued, and thereafter respondents appeared and filed their answer. From the uncontroverted averments of the petition, and the stipulations of the parties, the following facts are made to appear: after and before the final adjournment of that session and at either a special election called for that purpose or at any general or special election. Petitions for the submission of any amendment shall be filed with the legislative body of the city or city and county not less than sixty days prior to the general election next preceding a regular session of the Legislaverified by the authority having charge of the ture. The signatures on such petitions shall be registration records of such city or city and county, and the expenses of such verification shall be provided by the legislative body thereof. If such petitions have a sufficient number of signatures the legislative body of the city or city and county shall so submit the amendment or amendments so proposed to the electors. Amendments proposed by the legislative body electors may be submitted at the same election. and amendments proposed by petition of the The amendments so submitted shall be advertised in the same manner as herein provided for the advertisement of a proposed charter [ital On July 5, 1922, a petition, signed by more than 15 per cent. of the registered electors of the city of Los Angeles, requesting the submission of an amendment to the city charter, was filed with the city council, and the signatures thereto were duly certified by the city clerk. On the same day, at a regular meeting of the city council, a motion was made to advertise such proposed amendment within 15 days, but, for lack of the requisite number of votes, the motion failed to carry. Thereafter, on July 13, 1922, at a regular meeting, the city council adopted a resolution whereby it declared it to be its purpose and intention to submit the proposed amend-ics ours], and the election thereon held at a date ment to the electors of the city not later than the general election to be held next No vember. to be fixed by the legislative body of such city, not less than forty and not more than sixty days after the completion of the advertising in Petitioner claims that by the provisions of the official paper. If a majority of the qualified section 8 of article 11 of our state Constitu- favor thereof it shall be deemed ratified, and voters voting on any such amendment vote in tion, presently to be quoted, it is the bounden shall be submitted to the Legislature at the regduty of the city council to advertise the pro- ular session next following such election, and posed amendment not later than 15 days aft-approved or rejected without power of alteraer the filing of the petition by the electors; that is to say, within 15 days after July 5, 1922. Section 8 of article 11 of the Constitution, in so far as it is necessary to an understanding of the question, reads: * may tion in the same manner as herein provided for the approval or rejection of a charter." As will be observed, it is provided by the Constitution that the legislative body of any prepared by a board of freeholders and filed city for which a proposed charter has been er such filing," cause the same to be pubwith the clerk shall, "within fifteen days aftlished once in the official paper of the city, or in a paper of general circulation if there be no official paper, and shall likewise cause copies of such charter to be printed in convenient pamphlet form and give notice by advertising in one or more papers of general circulation that such copies may be had upon application; and it will be recalled that it is further provided that all proposed amend "Any city or city and county frame a charter for its own government, consistent with and subject to this Constitution. Any such charter shall be framed by a board of fifteen freeholders chosen by the electors of such city at any general or special election. * The charter so prepared shall be signed by a majority of the board of freeholders and filed in the office of the clerk of the legislative body of said city. The legislative body of said city shall within fifteen days after such filing [italics ours] cause such charter to be published once in the official paper of said city (or in case there be no such paper, in a paper of general circulation), and shall cause copies of such char-ments to any such charter shall be adverter to be printed in convenient pamphlet form, and shall, until the date fixed for the election upon such charter, advertise in one or more papers of general circulation published in said city a notice that such copies may be had upon application therefor. Such charter shall be submitted to the electors of such city at a date to 209 P.-5 tised "in the same manner as herein provided for the advertisement of a proposed charter." Whether, as petitioner claims, it is the duty of the legislative body of a city having a freeholders' charter to advertise a proposed amendment to the charter within 15 days after the filing of a petition by electors for the submission of such amendment, depends upon the meaning to be given to the word "manner," as that word is used in the provision which declares that all proposed charter amendments shall be advertised "in the same manner as herein provided for the advertisement of a proposed charter." It is urged by petitioner that the phrase "in the same manner" refers, not only to the way or mode whereby the advertising must be done, but also to the time within which it must be done. Whether the word "manner," or the phrase, “in the same manner," includes the element of time, has been answered by the courts both in the affirmative and in the negative. The Supreme Court of Nevada, in State v. Eureka, etc., M. Co., 8 Nev. 15, held, without discussion, that the word "manner," in the statute under consideration in that case, did not mean time. In United States v. Morris, Fed. Cas. No. 15,815, the word was also construed by the court as not including time. See, also, Bankers' Life Insurance Co. v. Robbins, 59 Neb. 170, 80 N. W. 484. On the other hand, Harris v. Doherty, 119 Mass. 142, and State v. McClure, 91 Wis. 313, 64 N. W. 992, are cases in which the word "manner" was construed as including the element of time. [1] We think that the question is, in every case, one of intent, and that the true rule may be formulated substantially as follows: Whether the word "manner" shall be construed as including, not only the way or mode of doing a thing, but also the time of doing it, depends upon the intention of the lawmakers, to be gathered from the context; that is, the "manner" of doing a thing and the "time" of doing it are distinct things, and ordinarily the word "manner" will not be construed as including the element of "time," unless it shall appear from the context that the lawmakers intended that it should. Thus, in State v. McClure, supra, the Supreme Court of Wisconsin said: "The word 'manner' in a statute may undoubtedly include 'time,' if such seems to have been the intent of the lawmakers." And in Porter v. Brook, 21 Okl. 885, 97 Pac. 645, a well-considered case, the Oklahoma Supreme Court used this language: "We think the language quoted from United States v. Morris, supra, to the effect that the 'manner of doing a thing and the 'time' of doing it are distinct things, but that 'manner' may embrace 'time' if such was the intention of Congress, states the correct rule." (Italics ours.) [2] It must be held, therefore, that the word "manner," in the phrase "shall be advertised in the same manner as herein provided for the advertisement of a proposed charter," does not include the element of time, but refers only to the mode or way of advertising a proposed amendment to a freeholders' charter, unless we can see from the context that the time, as well as the mode, of advertising was intended to be included in the word "manner." Petitioner argues that it was intended that the word "manner," as here used, should include the time as well as the mode or way of advertising, because, as he claims, if the word were not construed as including the time of advertising, it would be possible for any city council to frustrate the will of the electors by indefinitely postponing the advertisement of a proposed charter amendment, and thus prevent the holding of any election thereon. We do not think the dilemma thus suggested by petitioner will ensue if the word "manner" be construed as meaning only the way or mode, and not the time, of advertising. The embarrassing possibility suggested by petitioner's argument is based upon the assumption that, if the Constitution does not make it obligatory to advertise a proposed charter amendment within 15 days from the filing of the petition for its submission, then no time is prescribed by the Constitution for advertising a charter amendment proposed by electors. [3] An analysis of the provisions of the Constitution will show the fallacy of petitioner's contention. If the Constitution does not require the city council to advertise within 15 days from the filing of a petition for a proposed charter amendment, then it is true that no definite time for advertising is directly enjoined upon the council. But, even so, it still remains that, indirectly, a period for advertising is prescribed by the Constitution, although that period may cover a somewhat wide range of time. It is expressly declared by section 8 of article 11 that a proposed amendment to a city charter "shall be submitted to the electors only during the six months next preceding a regular session of the Legislature or thereafter and before the final adjournment of that session"; that petitions for the submission of any amendment shall be filed "not less than sixty days prior to the general election next preceding a regular session of the Legislature"; and that the election on such proposed amendment shall be held "at a date to be fixed by the legislative body of such city, not less than forty and not more than sixty days after the completion of the advertising in the official paper." We are satisfied that the declaration that proposed amendments "shall be submitted to the electors only during the six months next preceding a regular session of the Legislature or thereafter and before the final adjournment of that session" is the equivalent of a mandatory requirement making it the duty of the city council to submit all proposed amendments to the electors at some time during the 6 months preceding the regular session of the Legislature next succeeding the filing of the petitions, or before (209 P.) the final adjournment of that session. And since the council must fix the date of the election "not less than forty and not more than sixty days after the completion of the advertising," it follows that, indirectly, the city council is commanded to advertise the proposed amendments at some time during a period having a fixed beginning and fixed ending, and that therefore it is not necessary to construe the word "manner" as including the element of time in order to escape the dilemma suggested by petitioner. Another reason why this word "manner" should not be construed to mean "time" is that, if it were so construed, the time consumed in verifying the signature to a petition for the submission of a proposed charter amendment might exceed the 15 days within which, according to petitioner's claim, the proposed amendment should be advertised. When a freeholders' charter is to be submitted to a vote of the electors, the Constitution fixes a definite point of time from which to reckon the 15 days within which such charter is to be advertised. Not so, however, with respect to charter amendments; that is to say, the Constitution declares that a charter prepared by a board of freeholders must be advertised "within fifteen days after such filing" of the charter in the office of the clerk. No checking of names or verifying of signatures is required where a complete charter is to be submitted for ratification. It comes from the hands of the freeholders ready for advertising. But, where an amendment to the charter is proposed by 15 per cent. of the electors of a city, the signatures on the petitions for the amendment must be verified by the person having charge of the registration records of the city, who, in the instant case, is the city clerk. In the very nature of things, such verification must take some time, and mayhap considerable time. It is even conceivable that the time required for that purpose may, in some cases, consume more than 15 days. If it should take more than that length of time to verify the signatures to a petition, and if the word "manner," as here used, were construed as including the element of time, so that the advertising of any proposed charter amendment would have to be done within 15 days after the filing of the petition for the submission of the amendment, it is possible that it would be a physical impossibility to comply with the constitutional mandate to advertise the proposed amendment within 15 days from the filing of the petition. Finally, there is, as we think, a conclusive reason why it must be held that the word "manner," as used in the phrase "shall be advertised in the same manner as herein provided for the advertisement of a proposed charter," was not intended to include the time for advertising proposed charter amendments. If it were necessary to advertise a charter amendment within 15 days from the filing of the petition for its submission to the electors, a case might readily arise where the council would either have to ignore the constitutional mandate to call an election "not less than forty and not more than sixty days after the completion of the advertising," or else violate the injunction not to submit the proposed amendment to a vote prior to 6 months next preceding a regular session of the Legislature. As we have seen, proposed amendments to a charter can be submitted to the electors "only during the six months next preceding a regular session of the Legislature or thereafter and before the final adjournment of that session." But, although an election upon a proposed charter amendment may not be held before the commencement of the period of time thus definitely fixed by the Constitution, petitions for such amendments, signed by 15 per cent. of the registered electors, may be filed with the legislative body of the city at any time prior to the period thus fixed by the Constitution as that within which proposed charter amendments may be submitted to a vote. The sole limitation upon the time for filing petitions for charter amendments is the requirement that they must be filed "not less than sixty days prior to the general election next preceding a regular session of the Legislature." A hypothetical, concrete case will best serve to bring out the force of the point that, if petitioner's construction of the constitutional provision in question were adopted, the legislative body of the city might be confronted with a situation where it would be impossible for it to fix the time for an election in compliance with the constitutional mandate. Let us suppose, for example, that a petition for an amendment to a city charter, signed by 15 per cent. of the registered electors, is filed in the month of February of a year in which a general election is to be held. In that case, if it were the duty of the city council to advertise such proposed amendment within 15 days after the filing of the petition, then the amendment would have to be submitted to vote not later than the month of April, if the council complied with the constitutional mandate to call an election on all proposed charter amendments "not less than forty and not more than sixty days after the completion of the advertising in the official paper." But the election could not be held in the month of April without violating the constitutional requirement that all proposed amendments shall be submitted to the electors of the city "only during the six months next preceding a regular session of the Legislature or thereafter and before the final adjournment of that session." For the foregoing reasons, we conclude that it was not intended that the element of time should be included in the word "manner," as that word is used in the constitutional requirement that proposed amend |