[6] The executors waived the delay in making prompt payment. George A. Cheda, when V. J. B. Cheda asked that he figure up the amount necessary to pay the full purchase price, pleaded his desire to go on a vacation, and suggested that to take it up then would (209 P.) Cheda to buy the stock. This is so, even if it be conceded that S. H. Cheda might have refused to accept less than the entire contract price. But, in fact, it was contemplated by the parties that payments less than the whole amount might be made on the principal. This is conclusively shown by the pro-interfere with his vacation. The matter vision in the option that no forfeiture could be declared without first returning such portions of the principal as may theretofore have been paid. Its language is: "This option may be terminated by paying to Elenore A. Cheda any sum paid on account of above principal of $25,650." was delayed until his return. This lulled the payee into a sense of security, and operated to extend the time until a reasonable time after his return. The respondent insists that the payments to V. J. B. Cheda and their acceptance by him as an executor cured any default theretofore existing. This view receives the support of our Supreme Court in Willis v. Farley, 24 Cal. 491, and In re Sanderson, 74 Cal. 199, 15 Pac. 753; but, in view of our conclusions on other points, it becomes unnecessary to examine the question at length. [3, 4] When George A. Cheda, on September 3, 1920, attempted to declare a forfeiture, he failed of his purpose, since he made no offer to return said payment. His position is that the death of S. H. Cheda revoked the option. It is quite true that the death of a [7, 8] The appellant submits the claim that the value of the stock at the time of the party before acceptance revokes a mere option. Section 1587, Civ. Code. But we have execution of the option, and especially at the no such case here. It is evident that both time of the commencement of this proceeding, parties, after the payment of said sum of was so far in excess of the agreed price that $6,650, regarded the option as closed. S. H. it would be inequitable to order a specific Cheda constantly recognized the obvious fact performance of the contract. This position that an acceptance of the offer and the pay- is wholly untenable. As to the value at the ment of a part of the purchase price on-time of making payment of the $6,650, the verted the option into a mutual contract, and that thereupon she became the owner of the stock and entitled to its dividends. This being so, the receipt by S. H. Cheda of the dividends constituted by operation of law a set-off to the accruing demands for interest. As long as he lived, unless the dividends of January and July, 1920, should constitute exceptions, they were regularly credited upon the interest. At most, the defenses interposed by appellant are purely technical, and they are clearly at variance with the desires and intent of the contracting parties. Although the option expressly provided that there could be no forfeit for nonpayment of interest, unless all payments of principal were returned, the appellant made an effort to avoid the effect of this provision by inviting V. J. B. Cheda to file a claim against the estate of S. H. Cheda for any sum that might be due to him under the terms of the option. But this was not according to the terms of the option. Moreover, neither V. J. B. Cheda nor his wife had any claim against the estate. They could have had no claim upon the $6,650 until there had first been a lawful termination of the contract, and this event could be brought about only by returning the payment to him or her. [5] It is insisted by the respondent that the delays granted in his lifetime by S. H. Cheda made it incumbent upon his representatives to give notice that they would there after require prompt payment of the interest before resorting to the remedy of forfeiture. This claim is well founded. Stevinson v. Joy, 164 Cal. 279, 128 Pac. 751. point is not fairly open to discussion. S. H. Cheda was a man of affairs, and evidently a banker of wide experience. He, better than any other person, knew the value of the stock. He knew, when he accepted the payment of $6,650, whether or not he was asking a proper price for the stock. The Supreme Court, in Estate of S. H. Cheda, 202 Pac. 133, has held that this proceeding is practically a proceeding in equity terminating in a final judgment; the findings of the trial court are therefore conclusive on the court on appeal, if reasonably sustained by competent evidence. In this case, the trial court found that the allegation of equity in the petition is true. This finding is justified by the testimony of V. J. B. Cheda, when he testified that each and every allegation of the petition is true. It is sustained by other evidence that goes more into detail. In every view, the value is not so out of proportion to the agreed price as to justify a court in overriding the deliberate contract of the parties. Equity does not require the highest price obtainable, but merely that it should be fair and adequate under the circumstances. Haddock v. Knapp, 171 Cal. 59, 151 Pac. 1140. We are unable to say that the finding of the trial court on this point is not sustained by ample evidence. We may add that the option was closed within about two months after S. H. Cheda bought the stock, and at the precise price that he paid for it. Lastly, our attention is directed to that provision of the Probate Act which directs the trial court, if the right of the petitioner is found to be doubtful, to dismiss the peti- | pel Charles E. Dunscomb and others to obey tion without prejudice. Section 1602, Code a subpoena. From an order sustaining a deCiv. Proc. However, we discover no particu- murrer to the application, petitioner aplar wherein her right may be deemed doubt-peals. Affirmed. ful as viewed in the light of the findings and evidence. It does not appear that any point has arisen that could be handled more Lemuel D. Sanderson, City Atty., of Berkeley, for appellant. Redmond C. Staats, of Berkeley (George L satisfactorily by a court of equity than by Hughes, of Berkeley, of counsel), for respond the probate court. The order appealed from is affirmed. We concur: TYLER, P. J.; RICHARDS, J. In re DUNSCOMB et al. BARTLETT, Mayor, v. DUNSCOMB et al. (Civ. 4244.) (District Court of Appeal, First District. Division 1, California. July 24, 1922. Hearing Denied by Supreme Court Sept. 21, 1922.) 1. Municipal corporations 168-Acts of mayor must be authorized or necessarily implied. The functions of a mayor are of an executive or administrative character, and whatever power he may exercise must be warranted or necessarily implied, or his acts will be illegal and a usurpation of authority. 2. Municipal corporations 168-Mayor not authorized to investigate bill approved by council. ents. TYLER, P. J. This is an appeal from an order sustaining a demurrer, without leave to amend, to an application for an order to compel obedience to a subpoena issued by appellant as mayor of the city of Berkeley. It appears from the petition that the city ordered the printing of certain sample and official ballots from the Berkeley Gazette, a corporation of which respondents are officers. No specified price was agreed upon, but the work was performed and a bill therefor ren dered to the proper authorities. The city council approved the same, but before payment was made petitioner, as mayor, was informed, so it is alleged, that the charge was excessive, and he thereupon determined to ascertain the truth as to whether or not the account was fair and reasonable. With this purpose in view he issued a subpoena to respondents directing them to appear and testify before him, and to produce probative evidence, consisting of certain described books and papers. Respondents failed to obey the subpoena, and the petitioner thereupon presented an application to the superior court of Alameda county for an order to show cause why respondents refused to do so. A demurrer was ex-interposed thereto on several grounds, both general and special. The trial court sustained the same, without leave to amend, and this is an appeal from such judgment. No claim of fraud was raised, nor that either the council or any member thereof acted improperly. The main question, therefore, presented for determination, is whether or not the mayor has the legal authority or power to After the council had approved a printing bill, the mayor was not authorized to investigate it on the theory that the charge was cessive, as under the charter, amended in compliance with Const. art. 11, § 6, the council is invested with the legislative powers of the municipality and has the sole power to determine this question, and its determination, in the absence of fraud, excessive jurisdiction, or other plain violation of law, is final. 3. Municipal corporations 168-Mayor not authorized to issue subpoena to investigate claim against city. Provision of the city's charter authorizing the mayor to see that all ordinances are faithfully observed, and giving to every official board the power to issue subpoenas to compel parties to produce records concerning matters before the board, did not authorize the mayor to issue a subpœna to a creditor of the city to compel the production of records concerning a claim which had been approved by the council, as whatever power the mayor has in this respect must be exercised in conjunction with the other members of the council. Appeal from Superior Court, Alameda County; Joseph S. Koford, Judge. Application by Louis Bartlett, as Mayor of the City of Berkeley, for an order to com investigate the bill in question, and to this end require respondents to produce papers and documents and appear before him in obedience to his subpœna. [1] The source of the powers and duties of the mayor is the charter of the municipality. In the various chapters of that instrument are to be found the provisions for his appointment and an enumeration of his powers and duties. He is one of ten elective officials. As chief executive he must see that all ordinances are duly enforced, and he is charged with general oversight of the several departments of the municipal government, and directed to ascertain whether all contracts made with the city are faithfully performed, and he must annually and from time to time give the council information For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (209 P.) relative to the affairs of the city and recom-, be is a question that is not necessary to dismend to its consideration such matters as he cuss generally. may deem expedient. He is given the power By the charter amendment (section 115, to make an examination of the books of offi- art. 16) the city is given the right to make cials and employees, and has supervision and enforce laws, subject to the limitations over public utility companies, and he per- and restrictions provided for in the charter. forms such other powers and duties as may By that instrument the powers and duties of be prescribed by law and ordinance. He is the mayor are restricted. The council is made a member of the council, and is presi- invested with the legislative powers of the dent thereof, and presides at its meetings, municipality, and is its governing body, and all resolutions and ordinances are signed True, the mayor is a member thereof, and by him; but he has no veto power. The as such he has the same, but no greater, powcouncil is made the governing body of the er than any of the other members, and that municipality, subject to the express limita- body must function as a whole, and not by tions of the charter, and is vested with all its members separately. The authority of powers of legislation in municipal affairs each official, board, or department of the adequate to a complete system of local gov- municipality to exercise any corporate powernment consistent with the Constitution of ers with which it has been clothed must be the state. Money is drawn from the treas- distinctly conferred or necessarily implied, ury upon warrant and allowed by the coun-in order to entitle it to act. As mayor, apcil or proper board, and then only when such pellant could undoubtedly refuse to order a warrant is signed by the president and sec-claim paid, and upon such refusal the propretary or clerk of such body and properly er remedy could be invoked against him; numbered and dated. Every official board or but the question of the regularity of a claim commission is, under the charter provisions, is one for the council, which has the sole given the power to issue subpoenas to compel the production of books, papers, and doc- power, under the charter, to determine such uments, and to take and hear testimony con- in the absence of fraud, excessive jurisdicquestion, and its hearing and determination, cerning any matter or thing pending before tion, or other plain violation of law, is final such official board or commission. It thus and conclusive. McConoughey v. Jackson, appears that the functions of the mayor, as such, are intended in the main to be, and 101 Cal. 265, 35 Pac. 863, 40 Am. St. Rep. they are, of an executive or administrative character; but whatever power he may at any time exercise, be it executive, legislative or judicial, it must be warranted or author-utive, is given power to see that all ordiized, or be necessarily implied, or his acts will be deemed illegal and a usurpation of authority. Von Schmidt v. Widber, 105 Cal. 151, 38 Pac. 682. 53; McFarland v. McCowen, 98 Cal. 329, 33 Pac. 113. [3] The fact that the mayor, as chief exec nances are faithfully observed, does not confer the authority here attempted to be exercised. Whatever power he has to object to the correctness of a charge of the character here involved must be exercised in conjunction with all the other members of the council. The question of the reasonableness of a demand is not one for the mayor as such to determine. Any other conclusion would totally distort the plain intention of the framers of the charter, and stultify and destroy the limitations sought to be placed upon the various boards and officers. [2] In compliance with the provisions of section 6 of article 11 of the Constitution, giving to cities the right and power to make and enforce all laws and regulations in respect to municipal affairs, the city of Berkeley amended its organic law. It is the claim of appellant that by reason of this amendment the charter, instead of being a grant of power, became in effect a limitation of powers, and that the mayor, in carrying out his official duties, has therefore complete authority to investigate any matter relating to municipal affairs, unless prohibited from so doing by direct limitation. Matter of Nowak, 184 Cal. 701, 195 Pac. 402; Civic Center Association, etc., v. Railroad Commission of the State of California, 175 Cal. 441, 166 Pac. 351; Cole v. City of Los Angeles, 180 Cal. 617, 182 Pac. 436. Whatever the effect of the amendment to the charter may I concur: RICHARDS, J. Considering the conclusion we have reached, the questions as to the sufficiency of the pleadings and the right of the mayor to institute the proceeding become unimportant. From what we have said it follows that the judgment of the lower court, sustaining the demurrer to appellant's application without leave to amend, should be, and it is, hereby affirmed. located was a business street; that the loPAVILION ICE RINK v. BRYANT, Tax Col-cality had not changed since the original lector et al. (Civ. 3976.) (District Court of Appeal, First District, vision 2, California. July 20, 1922.) permit had been granted, except that, since said time, it had assumed more of a business Di-character from day to day; that in fact Mandamus 163-Demurrer to petition, admitting its allegations, held improperly sustained. Demurrer to petition for mandamus to compel issuance of a license and permit to continue the conduct of a dancing pavilion is improperly sustained; it admitting the petitioner's allegations that plaintiff was arbitrarily and capriciously forced out of its lawful business, properly conducted and not injurious to persons, property, or public welfare, while others in like situation and condition were permitted by the same authorities to continue. Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge. Mandamus by the Pavilion Ice Rink against Edward F. Bryant, Tax Collector of the City and County of San Francisco, and others. Demurrer to petition was sustained, and proceeding dismissed, and plaintiff ap peals. Reversed. H. J. Stafford, Edward A. Cunha, and John T. Williams, all of San Francisco, for appellant. George Lull, City Atty., and Chas. S. Peery, Asst. City Atty., both of San Francisco, for respondents. there was only one residence in the block in which said premises were located, and the residents thereof consented to the maintenance of said business; that the declaration that the premises were located in a residence district "was a sham and a pretense, and not based upon the fact or the truth, all of which is and was well known to the members of the said board; that the said board and the members thereof well knew that the said district surrounding the plaintiff's place of business, and the street upon which it faces, were and are not a residence district, or a residence street; and in this behalf plaintiff avers that said declaration was made for the purpose of affording the said board and its members an excuse to arbitrarily, maliciously, oppressively, unreasonably, and unlawfully destroy plaintiff's business and impair plaintiff's contract of lease, and to cause plaintiff great and irreparable injury." It was further alleged that the refusal to renew said permit was in deference to a protest filed with the commissioners, based upon a popular hue and cry against the "Winter Garden" as a place where "Howard street gangsters" met their victims, and that though the police commissioners, after a hearing, affirmatively found that those grounds of protest were untrue, they nevertheless refused to issue the permit unless the protestants would formally withdraw their protest; that, when this was refused, the police commissioners devised the pretense of denying said permit on the ground that said premises were in a residential district; that this action was arbitrary, capricious, and unreasonable; that it discriminated against plaintiff and in favor of other proprietors of similar pavil NOURSE, J. Plaintiff filed its petition for a writ of mandate to require the defendant Bryant, as tax collector, to issue a license, and the other defendants, as members of the board of police commissioners, to issue a permit, to continue the conduct of a dancing pavilion in the premises known as the "Winter Garden" and located on the corner of Pierce and Sutter streets, San Francisco. A general demurrer to the petition was sustained, without leave to amend, and judg-more residential character. Allegations folment followed, denying the application and dismissing the proceeding. ions located in districts which are of a far lowed relating to the character of the danc- The petition alleged that the plaintiff was in possession of the premises under a lease running until August 1, 1926; that on the 1st day of June, 1918, acting under the ordinances enacted by the board of supervisors, the police commissioners granted to petitioner a permit to conduct a dancing paFrom the allegations of the petition, it apvilion in the premises, and that this permit had been renewed without protest on each pears that, without any legal cause, but arsucceeding quarter thereafter until January bitrarily, oppressively, and capriciously, the 1, 1921; that the commissioners refused to board suddenly terminated plaintiff's right to renew the permit for the quarter commenc- conduct a lawful and profitable business uping on that day, giving as a reason therefor on premises which were leased for that purthat the premises were located in a residence pose upon the faith of the permit theretofore district; that in truth and fact the premises granted. It is not necessary to discuss the were not located in a residence district; many constitutional questions argued by the that the street on which the premises were parties. The right of the city to regulate a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (209 P.) business of this nature may be conceded. | ly here, we refrain from expressing any opinThe point of the case is that the petition al- ion upon the merits of the controversy, or leges that the appellant was not subjected to upon the propriety of the issuance of the regulation, but that it was arbitrarily and writ of mandate by the proper court. capriciously forced out of business, while others in like situation and condition were permitted by the same authority to continue. It is not necessary to cite authority to the point that a lawful business, properly conducted, and not injurious to persons, prop erty, or public welfare, cannot be confiscated by the arbitrary and capricious dictation of any official body. The complaint alleges that this was what was done in this case, and, of course, the demurrer admits the truth of these allegations. Judgment reversed. Though contending that the trial judge was justified in refusing to settle the bill of exceptions, respondents have argued and submitted this proceeding without questioning the propriety of the issuance of the writ by this court, if the facts disclose it to be a proper case for commanding the trial judge to settle the bill. Upon reading the briefs, our attention is for the first time directed to the fact that the appeal in which petitioner intends using the bill of exceptions is not one of which this court has jurisdiction. Upon a more careful examination of the contents of the petition than was given when the al We concur: LANGDON, P. J.; STURTE- ternative writ was issued, we find that the VANT, J. action in the superior court is one involving the title to and possession of real property. On an appeal from the judgment in such an action the Supreme Court has exclusive jurisdiction. Section 4, art. 6, Const. A bill of exceptions is ultimately used as a basis for presenting the merits of a case upon an appeal. The writ of mandate, when issued by an appellate court to compel the settlement of a bill of exceptions, is issued to aid the Courts 472(2) District Court of Appeal court in the exercise of its appellate jurisdicwill not compel settlement of bill of exceptions tion. The writ, therefore, should be issued in action over which Supreme Court has ex-by the court which possesses the appellate juclusive appellate jurisdiction. TANNAHILL v. SUPERIOR COURT OF ORANGE COUNTY et al. (Civ. 3928.) (District Court of Appeal, Second District, Division 2, California. July 25, 1922.) As a matter of policy, the District Court of Appeal will not by writ of mandate compel settlement of a bill of exceptions in an action involving the title to realty, since under Const. art. 6, 4, the Supreme Court has exclusive appellate jurisdiction of such an action. Original application for writ of mandate by J. M. Tannahill against the Superior Court of Orange County and Z. B. West, Judge thereof. Alternative writ discharged, and peremptory writ denied. risdiction-in this case the Supreme Court of this state. Stewart v. Torrance, 9 Cal. App. 209, 98 Pac. 396. See, also, Matter of Application of Davidson, 24 Cal. App. 407, 141 Pac. 216, 144 Pac. 147. We do not say that we would not have jurisdiction, if we chose to exercise it. The risdiction to the Supreme Court and to the Constitution gives equal and concurrent juDistrict Courts of Appeal to issue writs of mandamus in all proper cases. Const., art. 6, § 4. See Favorite v. Superior Court, 181 Cal. 265, 184 Pac. 15, 8 A. L. R. 290. But as J. R. Jaffray, of Los Angeles, for peti- a matter of policy and practice, both the Sutioner. preme Court and the District Courts of ApAdair & Winder, of Riverside, for respond- peal, respectively, refuse to take jurisdiction ents. FINLAYSON, P. J. This is an original application to this court for a writ of mandate to compel the settlement of a bill of exceptions. An alternative writ of mandate was issued-inadvertently, as it now appears. In due time respondents appeared and presented a general demurrer to the petition. Thereafter the briefs were filed, and the matter has been regularly submitted. Because we think the proceeding is not proper of an original mandamus proceeding in aid of appellate jurisdiction where that appellate jurisdiction is vested originally in the other court. See Collins v. Superior Court, 147 Cal. 264, 81 Pac. 509; Favorite v. Superior Court, supra. Because the alternative writ of mandate was inadvertently issued, it is discharged, and the petition for the peremptory writ of mandate is denied. We concur: WORKS, J.; CRAIG, J. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |