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(209 P.) venience, and not for any necessary family, Action by John Hansen against the Northpurpose, was held to be solely responsible / western Pacific Railroad Company and anfor damages caused through the negligent other. Judgment for plaintiff, and defendoperation of the machine. The difference ants appeal. Affirmed. between that case and this is that the daughter there was an adult and the Vehicle Act

James N. Gillett, of San Francisco, and of California expressly preserves as against

F. A. Cutler, of Eureka, for appellants. a parent liability for negligence committed

| Puter & Quinn, of Eureka, for respondent. by a minor child while operating an automobile belonging to the former. Section 24 PREWETT, Justice pro tem. It is averred (a) of the act (Statutes of 1917, at page 408, that a train of the appellant company ran &18) provides that an operator's license over and killed 13 blooded Jersey cows beshall not be granted to a minor, unless the longing to respondent, for which injury he parent or parents having the custody of the seeks damages. The jury made an award in applicant shall have joined in signing the his favor, and the appellants bring this apapplication, and that the negligence of such peal. minor shall then be imputed to "the person or Respondent maintained a dairy situated persons who shall have signed the application about three-eighths of a mile from the railof such minor for said license."

road track. He knew that the morning pasAppellant insists that the father cannot senger train of appellant company was acbe 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 silent ture across the track. After crossing the on that question, but certain presumptions track at the regular crossing, the cows follow 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. Necessarily, then,

1, a train go down the track at about 8:19, and he would be the proper person to have in.

he assumed that this was the regular train. dorsed the application for the operator's license. There are two pertinent presumptions

In fact, however, it was a special running 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 the track and had reached a point about supplied.

400 feet distant from the crossing (which The judgment is affirmed.

brought him about opposite the pasture gate), We concur: CONRDY. P. J.: SHAW. J.] he heard the belated passenger train coming.

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. HANSEN V. NORTHWESTERN PAC. R.

From this point he saw the train rounding a CO. et al. (Civ. 4267; S. F. 9837.)

curve and coming into view. It was then

distant from him about 450 feet. The engi(District Court of Appeal, First District, Division 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 near

ly 1,000 feet. It is not controverted that the Railroads 443(7)-Evidence held to show

train could have been stopped in this disnegligence as to cows on track.

tance. The engineer testified that he could In an action for the death of cows on a

not see the cows on the crossing until he crossing, evidence held to show that the engi

reached a point distant therefrom about 432 neer had knowledge of something wrong on

feet. There is evidence in the record, which the track in time to stop the train and prevent the accident.

the jury may have believed, that the train

could have been stopped in this shorter disAppeal from Superior Court, Humboldt tance. County ; Denver Sevier, Judge.

1 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 that doctrine that he should have brought killed 10 of these outright and severely maim- his train to a stop. ed several others. This 1,000 feet of track The petition for a rehearing is denied. describes an arc of a circle. Owing to a slight elevation in the territory within the SHAW, O. J., LENNON and WASTE, JJ., arc, a person at its farthest extremity could and MYERS, Justice pro tem., concur. 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 MOORE v. CITY COUNCIL OF CITY OF would have seen the respondent standing on LOS ANGELES et al. (Civ. 4000.) the track and waving his hat. Seeing him, it was his duty at once to stop the train, and it

(District Court of Appeal, Second District, Diis clear that he had ample space within

vision 2, California. July 18, 1922.) which to accomplish that result. He knew

He knew 1. Statutes 199—"Manner" of doing thing that his train was behind time, and that a does not ordinarily include time of doing it, special had just gone down the track on the and whether it does depends on intent. regular schedule, and that this circumstance

Whether the word "manner" in a statute was likely to mislead persons near the track. shall be construed as including, not only the He knew, also, that the respondent had been way or mode of doing a thing, but also the accustomed for a long period to drive his time of doing it, depends on the intention of COWs el

every day across the track to and from the lawmakers, to be gathered from the conpasture.

text, and ordinarily the manner and time of In the foregoing résumé the only disputed

doing the thing are distinct things, and “man

per" will not be construed as including the elepoints are the position of the respondent at

ment of time, unless it appears from the conthe time he commenced to wave his hat to the

text that the lawmakers so intended. engineer and the position of the latter at that

[Ed. Note.-For other definitions, see Words time. The story of the respondent as to these

and Phrases, First and Second Series, Manner.] matters sounds reasonable enough, and the jury was justified in believing it. It may be

2. Municipal corporations 46-Constitu

tional provision requiring advortising of added that the experts did not agree as to the

amendments to charter in same "manner" as distance within which the train could have

new charter does not include element of time. been'stopped, but none of them insisted that

Const. art. 11, $ 8, providing that proposed it could not have been stopped in 1,000 feet. amendments to city charter shall be advertised This state of facts meets the claim of the ap- in the same "manner" as therein provided for pellants that the respondent was guilty of the advertisement of a new charter, does not contributory negligence. He had been using

require that the amendment shall be advertised

within 15 days after filing, as in the case of a this crossing for his cows twice a day during

new charter, in view of the further provisions ne period of 14 years, and this with the for verifying the signatures to the petition and knowledge of the engineers of the appellant for submitting proposed amendments only durcompany. But, even if the respondent had ing the six months preceding session of the beei negligent, the appellants had a space of Legislature, or thereafter and before its adabout 1,000 feet within which to stop after Journment. knowledge of something wrong on the track. 3, Municipal corporations Ow46–Constitution Under the doctrine of the “last clear chance," held to require submission of amendments to the engineer should have brought his train

charter during six months preceding next

session of Legislature, or before adjournment. to a stop. No other points are urged.

Const. art. 11, § 8, providing that proposed The judgment is affirmed.

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

before adjournment, is the equivalent of a man

datory requirement that the amendment shall Opinion of Supreme Court in Bank Denying

Bank Denying | be submitted during the six months preceding Hearing.

the regular session next succeeding the filing PER CURIAM. [1] In denying a rehearing

of the petitions, or before adjournment of that

session, and, in view of the provision that the of this cause after decision by the District

election shall not be less than 40 or more Court of Appeal we desire to say that we do

than 60 days after the completion of the adnot approve of the statement in the last para vertising, sufficiently fixes the time when the

1 of the opinion that "under the doctrine amendments are to be advertised. of the last clear chance'" the engineer was required to bring his train to a stop. The Original application by A. H. Moore for a last clear chance doctrine, in our opinion, is writ of mandamus, directed to the City Counnot involved in the case, and it is not under cil of the City of Los Angeles and others.

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

(209 P.) Alternative writ discharged, and application ( be fixed by the board of freeholders, before such denied.

| filing and designated on such charter, either at

la special election held not less than sixty days Jones & Weller, of Los Angeles, for peti

from the completion of the publication of such tioner.

charter as above provided, or at the general Jess E. Stephens and Lucius P. Green, both election next following the expiration of said of Los Angeles, and Charles B. MacCoy, of sixty days. * * * The charter of any city or San Diego, for respondents.

city and county may be amended by proposals

therefor submitted by the legislative body of the FINLAYSON, P. J. This is a proceeding

city on its own motion or on petition signcd by

fifteen per cent. of the registered electors, or in mandamus to compel respondents to ad

both. Such proposals shall be submitted to the vertise, within 15 days from July 5, 1922, a

electors only during the six months next precedproposed amendment to the charter of the city

ing a regular session of the Legislature or thereof Los Angeles. On application made to this after and before the final adjournment of that court in the first instance an alternative writ session and at either a special election called of mandate was issued, and thereafter re- for that purpose or at any general or special spondents appeared and filed their answer. election. Petitions for the submission of any From the uncontroverted averments of the amendment shall be filed with the legislative petition, and the stipulations of the parties, i

body of the city or city and county not less the following facts are made to appear:

than sixty days prior to the general election

next preceding a regular session of the LegislaOn July 5, 1922, a petition, signed by more

ture. The signatures on such petitions shall be than 15 per cent of the registered electors

verified by the authority having charge of the of the city of Los Angeles, requesting the registration records of such city or city and submission of an amendment to the city char-county, and the expenses of such verification ter, was filed with the city council, and the shall be provided by the legislative body theresignatures thereto were duly certified by the of. If such petitions have a sufficient number city clerk. On the same day, at a regular of signatures the legislative body of the city or meeting of the city council, a motion was city and county shall so submit the amendment made to advertise such proposed amendment |

mendment or amendments 80 proposed to the electors.

Amendments proposed by the legislative body within 15 days, but, for lack of the requisite

and amendments proposed by petition of the number of votes, the motion failed to carry.

y: electors may be submitted at the same election. Thereafter, on July 13, 1922, at a regular | The amendments so submitted shall be advermeeting, the city council adopted a resolu tised in the same manner as herein provided for tion whereby it declared it to be its purpose the advertisement of a proposed charter [italand 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 to be fixed by the legislative body of such city, than the general election to be held next No- not less than forty and not more than sixty vember.

days after the completion of the advertising in Petitioner claims that by the provisions of

the official paper. If a majority of the qualified

voters voting on any such amendment vote in section 8 of article 11 of our state Constitu

favor thereof it shall be deemed ratified, and 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; tion in the same manner as herein provided for that is to say, within 15 days after July 5, tbe approval or rejection of a charter." 1922. Section 8 of article 11 of the Constitution, in so far as it is necessary to an As will be observed, it is provided by the understanding of the question, reads:

Constitution that the legislative body of any “Any city or city and county * * * may city for which a proposed charter has been frame a charter for its own government, consist- prepared by a board of freeholders and filed ent with and subject to this Constitution. * * * with the clerk shall, "within fifteen days aft. Any such charter shall be framed by a board of er such filing," cause the same to be pubfifteen freeholders chosen by the electors of lished once in the official paper of the city, such city at any general or special election.

or in a paper of general circulation if there * * * The charter so prepared shall be signed by a majority of the board of freeholders and

be no official paper, and shall likewise cause filed in the office of the clerk of the legislative

copies of such charter to be printed in conbody of said city. The legislative body of said venient pamphlet form and give notice by adcity shall within fifteen days after such filing | vertising in one or more papers of general (italics ours) cause such charter to be published circulation that such copies may be had upon once in the official paper of said city (or in case application; and it will be recalled that it is there be no such paper, in a paper of general further provided that all proposed amendcirculation), and shall cause copies of such char

ments to any such charter shall be adverter to be printed in convenient pamphlet form,

tised “in the same manner as herein provided and shall, until the date fixed for the election

for the advertisement of a proposed charter." upon such charter, advertise in one or more papers of general circulation published in said

Whether, as petitioner claims, it is the duty city a notice that such copies may be had upon of the legislative body of a city having a application therefor. Such charter shall be sub- freeholders' charter to advertise a proposed mitted to the electors of such city at a date to amendment to the charter within 15 days

209 P.-5

after the filing of a petition by electors for | advertising a proposed amendment to a freethe submission of such amendment, depends holders' charter, unless we can see from the upon the meaning to be given to the word context that the time, as well as the mode "manner,” as that word is used in the pro- of advertising was intended to be included in vision which declares that all proposed char- the word "manner.” ter amendments shall be advertised “in the Petitioner argues that it was intended that same manner as herein provided for the ad- the word "manner," as here used, should invertisement of a proposed charter.” It is clude the time as well as the mode or way urged by petitioner that the phrase "in the of advertising, because, as he claims, if the same manner” refers, not only to the way or word were not construed as including the mode whereby the advertising must be done, time of advertising, it would be possible for but also to the time within which it must be any city council to frustrate the will of the done.

electors by indefinitely postponing the adver. Whether the word “manner," or the tisement of a proposed charter amendment, phrase, "in the same manner," includes the and thus prevent the holding of any election element of time, has been answered by the thereon. We do not think the dilemma thus courts both in the affirmative and in the neg. suggested by petitioner will ensue if the ative. The Supreme Court of Nevada, in word “manner" be construed as meaning only State y. Eureka, etc., M. Co., 8 Nev. 15, held, the way or mode, and not the time, of adwithout discussion, that the word "manner," vertising. The embarrassing possibility sugin the statute under consideration in that gested by petitioner's argument is based upcase, did not mean time. In United States on the assumption that, if the Constitution v. Morris, Fed. Cas. No. 15,815, the word was does not make it obligatory to advertise a also construed by the court as not including proposed charter amendment within 15 days time. See, also, Bankers' Life Insurance Co. from the filing of the petition for its submisv. Robbins, 59 Neb. 170, SO N. W. 484. On sion, then no time is prescribed by the Constithe other hand, Harris v. Doherty, 119 Mass.tution for advertising a charter amendment 142, and State v. McClure, 91 Wis. 313, 61 N. proposed by electors. W. 992, are cases in which the word "man [3] An analysis of the provisions of the ner" was construed as including the element Constitution will show the fallacy of peti. of time.

tioner's contention. If the Constitution does [1] We think that the question is, in every not require the city council to advertise withcase, one of intent, and that the true rule in 15 days from the filing of a petition for a may be formulated substantially as follows: proposed charter amendment, then it is true Whether the word “manner" shall be con- that no definite time for advertising is direct. strued as including, not only the way orly enjoined upon the council. But, even so, mode of doing a thing, but also the time of it still remains that, indirectly, a period for doing it, depends upon the intention of the advertising is prescribed by the Constitution, lawmakers, to be gathered from the context; | although that period may cover a somewhat that is, the "manner" of doing a thing and wide range of time. It is expressly declared the "time" of doing it are distinct things,

hings, by section 8 of article 11 that a proposed and ordinarily the word "manner" will not

amendment to a city charter "shall be subbe construed as including the element of

mitted to the electors only during the six "time," unless it shall appear from the con

months next preceding a regular session of text that the lawmakers intended that it

the Legislature or thereafter and before should. Thus, in State v. McClure, supra,

the final adjournment of that session"; that the Supreme Court of Wisconsin said:

petitions for the submission of any amend“The word 'manner' in a statute may undoubt- ment shall be filed "not less than sixty days edly include 'time,' if such seems to have been prior to the general election next preceding the intent of the lawmakers."

a regular session of the Legislature"; and

that the election on such proposed amendAnd in Porter v. Brook, 21 Okl. 885, 97

ment shall be held “at a date to be fixed by Pac. 645, a well-considered case, the Okla

the legislative body of such city, not less homa Supreme Court used this language:

than forty and not more than sixty days aft“We think the language quoted from United er the completion of the advertising in the States v. Morris, supra, to the effect that the offici

ris, supra, to the erect that the official paper." We are satisfied that the dec'manner of doing a thing and the time of do

laration that proposed amendments "shall ing it are distinct things, but that 'manner'

be submitted to the electors only during the may embrace 'time' if such was the intention of Congress, states the correct rule." (Italics

six months next preceding a regular session

of the Legislature or thereafter and before ours.)

the final adjournment of that session" is the [2] It must be held, therefore, that the equivalent of a mandatory requirement makword “manner," in the phrase "shall be ad- ing it the duty of the city council to submit vertised in the same manner as herein pro- all proposed amendments to the electors at vided for the advertisement of a proposed some time during the 6 months preceding the charter," does not include the element of regular session of the Legislature next suctime, but refers only to the mode or way of ceeding the filing of the petitions, or before

(209 P.) the final adjournment of that session. And filing of the petition for its submission to since the council must fix the date of the the electors, a case might readily arise where election "not less than forty and not more the council would either have to ignore the than sixty days after the completion of the constitutional mandate to call an election advertising," it follows that, indirectly, the "not less than forty and not more than sixty city council is commanded to advertise the days after the completion of the advertisproposed amendments at some time during aing," or else violate the injunction not to period having a fixed beginning and fixed submit the proposed amendment to a vote ending, and that therefore it is not necessary prior to 6 months next preceding a regular to construe the word "manner" as including session of the Legislature. As we have seen, the element of time in order to escape the proposed amendments to a charter can be dilemma suggested by petitioner.

submitted to the electors "only during the six Another reason why this word “manner" months next preceding a regular session of should not be construed to mean "time" is the Legislature or thereafter and before the that, if it were so construed, the time con- | final adjournment of that session." But, alsumed in verifying the signature to a peti- though an election upon a proposed charter tion for the submission of a proposed char- | amendment may not be held before the comter amendment might exceed the 15 days mencement of the period of time thus defiwithin which, according to petitioner's claim, nitely fixed by the Constitution, petitions for the proposed amendment should be adver- such amendments, signed by 15 per cent. of tised. When a freeholders' charter is to be the registered electors, may be filed with submitted to a vote of the electors, the Con- the legislative body of the city at any time stitution fixes a definite point of time from prior to the period thus fixed by the Constiwhich to reckon the 15 days within which tution as that within which proposed charter such charter is to be advertised. Not so, amendments may be submitted to a vote. however, with respect to charter amend- The sole limitation upon the time for filing ments; that is to say, the Constitution de petitions for charter amendments is the reclares that a charter prepared by a board of quirement that they must be filed "not less freeholders must be advertised “within fif- than sixty days prior to the general election teen days after such filing" of the charter in next preceding a regular session of the Legisthe office of the clerk. No checking of names lature." or verifying of signatures is required where A hypothetical, concrete case will best a complete charter is to be submitted for serve to bring out the force of the point that, ratification. It comes from the hands of the if petitioner's construction of the constitufreeholders ready for advertising. But, tional provision in question were adopted. where an amendment to the charter is pro

the legislative body of the city might be conposed by 15 per cent, of the electors of a city, I fronted with a situation where it

fronted with a situation where it would be the signatures on the petitions for the amend- impossible for it to fix the time for an elecment must be verified by the person having tion in compliance with the constitutional charge of the registration records of the city, mandate. Let us suppose, for example, that who, in the instant case, is the city clerk. In a petition for an amendment to a city charthe very nature of things, such verification ter, signed by 15 per cent. of the registered must take some time, and mayhap consider-electors, is filed in the month of February of able time. It is even conceivable that the a year in which a general election is to be time required for that purpose may, in some held. In that case, if it were the duty of cases, consume more than 15 days. If it the city council to advertise such proposed should take more than that length of time to amendment within 15 days after the filing verify the signatures to a petition, and if of the petition, then the amendment would the word "manner," as here used, were con- have to be submitted to vote not later than strued as including the element of time, so the month of April, if the council complied that the advertising of any proposed charter with the constitutional mandate to call an amendment would have to be done within 15 election on all proposed charter amendments days after the filing of the petition for the "not less than forty and not more than sixty submission of the amendment, it is possible days after the completion of the advertisthat it would be a physical impossibility to ing in the official paper." But the election comply with the constitutional mandate to could not be held in the month of April withadvertise the proposed amendment within 15 out violating the constitutional requirement days from the filing of the petition.

that all proposed amendments shall be subFinally, there is, as we think, a conclusive mitted to the electors of the city "only durreason why it must be held that the wording the six months next preceding a regular "manner," as used in the phrase "shall be session of the Legislature or thereafter and advertised in the same manner as herein pro- before the final adjournment of that session." vided for the advertisement of a proposed For the foregoing reasons, we conclude charter," was not intended to include the that it was not intended that the element of time for advertising proposed charter amend time should be included in the word "manments. If it were necessary to advertise aner," as that word is used in the constitucharter amendment within 15 days from the tional requirement that proposed amend

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