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(209 P.) Cheda to buy the stock. This is so, even if [6] The executors waived the delay in makit be conceded that S. H. Cheda might have ing prompt payment. George A. Cheda, when refused to accept less than the entire con- / V. J. B. Cheda asked that he figure up the tract price. But, in fact, it was contemplat- amount necessary to pay the full purchase ed by the parties that payments less than price, pleaded his desire to go on a vacation, the whole amount might be made on the prin- and suggested that to take it up then would cipal. This is conclusively shown by the pro- interfere with his vacation. The matter vision in the option that no forfeiture could was delayed until his return. This lulled the be declared without first returning such por-payee into a sense of security, and operated tions of the principal as may theretofore to extend the time until a reasonable time have been paid. Its language is:

after his return.

The respondent insists that the payments "This option may be terminated by paying to Elenore A. Cheda any sum paid on account of

to V. J. B. Cheda and their acceptance by him above principal of $25,650."

as an executor cured any default theretofore

existing. This view receives the support of [3, 4] When George A. Cheda, on Septem

our Supreme Court in Willis v. Farley, 24 ber 3, 1920, attempted to declare a forfeiture,

Cal. 491, and In re Sanderson, 74 Cal. 199, he failed of his purpose, since he made no

15 Pac. 753 ; but, in view of our conclusions offer to return said payment. His position

on other points, it becomes unnecessary to is that the death of S. H. Cheda revoked the

examine the question at length. option. It is quite true that the death of a

1 [7,8] The appellant submits the claim that party before acceptance revokes a mere op

the value of the stock at the time of the tion. 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 gon

time of making payment of the $6,650, the verted the option into a mutual contract,

point is not fairly open to discussion, S. H. and that thereupon she became the owner of

Cheda was a man of affairs, and evidently a the stock and entitled to its dividends. This

banker of wide experience. He, better than being so, the receipt by S. H. Cheda of the

any other person, knew the value of the dividends constituted by operation of law a

stock. He knew, when he accepted the set-off to the accruing demands for interest. payment of $6,650, whether or not he was As long as he lived, unless the dividends of asking a proper price for the stock. The January and July, 1920, should constitute ex- Supreme Court, in Estate of S. H. Cheda, ceptions, they were regularly credited upon 202 Pac, 133, has held that this proceeding the interest. At most, the defenses inter- is practically a proceeding in equity termiposed by appellant are purely technical, and nating in a final judgment; the findings of they are clearly at variance with the desires the trial court are therefore conclusive on the and intent of the contracting parties. court on appeal, if reasonably sustained by

Although the option expressly provided competent evidence. In this case, the trial that there could be no forfeit for nonpayment court found that the allegation of equity in of interest, unless all payments of principal the petition is true. This finding is justified were returned, the appellant made an effort by the testimony of V. J. B. Cheda, when to avoid the effect of this provision by invit- he testified that each and every allegation ing V. J. B. Cheda to file a claim against the of the petition is true. It is sustained by estate of S. H. Cheda for any sum that might other evidence that goes more into detail. be due to him under the terms of the option. In every view, the value is not so out of proBut this was not according to the terms of portion to the agreed price as to justify a the option. Moreover, neither V. J. B. Cheda court in overriding the deliberate contract nor his wife had any claim against the es- of the parties. Equity does not require the tate. They could have had no claim upon highest price obtainable, but merely that it the $6,650 until there had first been a lawful should be fair and adequate under the cirtermination of the contract, and this event | cumstances. Haddock v. Knapp, 171 Cal. could be brought about only by returning the 59, 151 Pac. 1140. We are unable to say payment to him or her.

that the finding of the trial court on this [5] It is insisted by the respondent that point is not sustained by ample evidence. the delays granted in his lifetime by S. H. We may add that the option was closed Cheda made it incumbent upon his represent within about two months after S. H. Cheda atives to give notice that they would there-bought the stock, and at the precise price after require prompt payment of the interest that he paid for it. before resorting to the remedy of forfeiture. Lastly, our attention is directed to that This claim is well founded. Stevinson v. provision of the Probate Act which directs Joy, 164 Cal. 279, 128 Pac. 751.

| 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 ap lar wherein her right may be deemed doubt-peals. Affirmed. ful as viewed in the light of the findings

Lemuel D. Sanderson, City Atty., of Berkeand evidence. It does not appear that any |

ley, for appellant. point has arisen that could be handled more

Redmond C. Staats, of Berkeley (George La satisfactorily by a court of equity than by

Hughes, of Berkeley, of counsel), for respondthe probate court.

ents. The order appealed from is affirmed.

We concur: TYLER, P. J.; RICHARDS, J./ 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 subpana issued by appellant as mayor of the city of Berkeley. It

appears from the petition that the city orIn re DUNSCOMB et al.

dered the printing of certain sample and ofBARTLETT, Mayor, v. DUNSCOMB et al.

ficial ballots from the Berkeley Gazette, a

corporation of which respondents are officers. (Civ. 4244.)

No specified price was agreed upon, but the

work was performed and a bill therefor ren(District Court of Appeal, First District. Division 1, California. July 24, 1922. Hear

dered to the proper authorities. The city ing Denied by Supreme Court Sept. 21,

council approved the same, but before pay1922.)

ment was made petitioner, as mayor, was in.

formed, so it is alleged, that the charge was 1. Municipal corporations Cow 168-Acts of excessive, and he thereupon determined to

mayor must be authorized or necessarily im- ascertain the truth as to whether or not the plied.

account was fair and reasonable. With this The functions of a mayor are of an execu- purpose in view he issued a subpæna to retive or administrative character, and whatever

spondents directing them to appear and tespower he may exercise must be warranted or necessarily implied, or his acts will be illegal

tify before him, and to produce probative evi.

dence, consisting of certain described books and a usurpation of authority.

and papers. 2, Municipal corporations now 168-Mayor not Respondents failed to obey the subpæna,

authorized to investigate bill approved by and the petitioner thereupon presented an council,

application to the superior court of Alameda After the council had approved a printing

| county for an order to show cause why rebill, the mayor was not authorized to investi

spondents refused to do so. A demurrer was gate it on the theory that the charge was ex

| interposed thereto on several grounds, both cessive, as under the charter, amended in compliance with Const. art. 11, § 6, the council is

general and special. The trial court susinvested with the legislative powers of the

tained the same, without leave to amend, and municipality and has the sole power to deter- | this is an appeal from such judgment. No mine this question, and its determination, in claim of fraud was raised, nor that either the the absence of fraud, excessive jurisdiction, or council or any member thereof acted impropother plain violation of law, is final.

erly. The main question, therefore, present

ed for determination, is whether or not the 3. Municipal corporations en 168–Mayor not

mayor has the legal authority or power to authorized to issue subpæna to investigate claim against city.

investigate the bill in question, and to this

end require respondents to produce papers Provision of the city's charter authorizing

and documents and appear before him in obethe mayor to see that all ordinances are faithfully observed, and giving to every official board /dience to his subpona. the power to issue subpænas to compel parties [1] The source of the powers and duties of to produce records concerning matters before the mayor is the charter of the municipality. the board, did not authorize the mayor to issue In the various chapters of that instrument a subpæna to a creditor of the city to compel are to be found the provisions for his apthe production of records concerning a claim pointment and an enumeration of his powers which had been approved by the council, as land duties. He is one of ten elective offiwhatever power the mayor has in this respect

cials. As chief executive he must see that must be exercised in conjunction with the other

all ordinances are duly enforced, and he is members of the council.

charged with general oversight of the sev.

eral departments of the municipal governAppeal from Superior Court, Alameda

ment, and directed to ascertain whether all County; Joseph S. Koford, Judge.

contracts made with the city are faithfully Application by Louis Bartlett, as Mayor performed, and he must annually and from of the City of Berkeley, for an order to com- | time to time give the council information

Om 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 dis. mend 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- lin order to

| 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 seca

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 com

power, under the charter, to determine such pel the production of books, papers, and doc

question, and its hearing and determination, uments, and to take and hear testimony con

in the absence of fraud, excessive jurisdiccerning any matter or thing pending before

tion, or other plain violation of law, is final such official board or commission. It thus

and conclusive. McCanoughey V. Jackson, appears that the functions of the mayor, as

101 Cal. 265, 35 Pac. 863,-40 Am. St. Rep. such, are intended in the main to be, and

53; McFarland v. McCowen, 98 Cal. 329, they are, of an executive or administrative

33 Pac. 113. character; but whatever power he may at any time exercise, be it executive, legislative

[3] The fact that the mayor, as chief execor judicial, it must be warranted or author. / utive, is given power to see that all ordi. ized, or be necessarily implied, or his acts

nances are faithfully observed, does not conwill be deemed illegal and a usurpation of

of fer the authority here attempted to be exerauthority. Von Schmidt v. Widber. 105 Cal. cised. Whatever power he has to object to 151, 38 Pac. 682.

the correctness of a charge of the character [2] In compliance with the provisions of here involved must be exercised in conjuncsection 6 of article 11 of the Constitution, tion with all the other members of the giving to cities the right and power to make

cil. The question of the reasonableness of and enforce all laws and regulations in re- a demand is not one for the mayor as such spect to municipal affairs, the city of Berke- to determine. Any other conclusion would ley amended its organic law. It is the totally distort the plain intention of the claim of appellant that by reason of this

framers of the charter, and stultify and deamendment the charter, instead of being stroy the limitations sought to be placed a grant of power, became in effect a limita- upon the various boards and officers. tion of powers, and that the mayor, in carry Considering the conclusion we have reaching out his official duties, has therefore com- ed, the questions as to the sufficiency of the plete authority to investigate any matter re- pleadings and the right of the mayor to inlating to municipal affairs, unless prohibited stitute the proceeding become unimportant. from so doing by direct limitation. Matter From what we have said it follows that of Nowak, 184 Cal. 701, 195 Pac. 402; Civic the judgment of the lower court, sustaining Center Association, etc., v. Railroad Commis- | the demurrer to appellant's application withsion of the State of California, 175 Cal. 441, out leave to amend, should be, and it is, here166 Pac. 351; Cole v. City of Los Angeles, by affirmed. 180 Cal. 617, 182 Pac. 436. Whatever the effect of the amendment to the charter may I concur: RICHARDS, J.

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.)

permit had been granted, except that, since (District Court of Appeal, First District, Di

said time, it had assumed more of a business vision 2, California. July 20, 1922.)

character from day to day; that in fact

there was only one residence in the block in Mandamus om 163-Demurrer to petition, ad which said premises were located, and the

mitting its allegations, held improperly sus- residents thereof consented to the maintetained.

nance of said business; that the declaration Demurrer to petition for mandamus to com- that the premises were located in a residence pel issuance of a license and permit to continue district "was a sham and a pretense, and the conduct of a dancing pavilion is improperly not based upon the fact or the truth, all of sustained; it admitting the petitioner's allega- I which is and was well known to the members tions that plaintiff was arbitrarily and capri

of the said board; that the said board and ciously forced out of its lawful business, properly conducted and not injurious to persons,

the members thereof well knew that the said property, or public welfare, while others in

district surrounding the plaintiff's place of like situation and condition were permitted by

business, and the street upon which it faces, the same authorities to continue.

were and are not a residence district, or a

residence street; and in this behalf plaintiff Appeal from Superior Court, City and

avers that said declaration was made for the County of San Francisco; Frank J. Mur

purpose of affording the said board and its asky, Judge.

members an excuse to arbitrarily, malicious

ly, oppressively, unreaşonably, and unlawMandamus by the Pavilion Ice Rink

fully destroy plaintiff's business and impair against Edward F. Bryant, Tax Collector of

plaintiff's contract of lease, and to cause the City and County of San Francisco, and

plaintiff great and irreparable injury." It others. Demurrer to petition was sustained,

was further alleged that the refusal to reand proceeding dismissed, and plaintiff ap

new said permit was in deference to a propeals. Reversed.

test filed with the commissioners, based upon H. J. Stafford, Edward A. Cunha, and a popular hue and cry against the "Winter John T. Williams, all of San Francisco, for Garden” as a place where "Howard street appellant.

gangsters" met their victims, and that though George Lull, City Atty., and Chas. S. I the police commissioners

the police commissioners, after a hearing, afPeery, Asst. City Atty., both of San Fran

firmatively found that those grounds of procisco, for respondents.

test were untrue, they nevertheless refused

to issue the permit unless the protestants NOURSE, J. Plaintiff filed its petition for would formally withdraw their protest ; that, a writ of mandate to require the defendant

when this was refused, the police commisBryant, as tax collector, to issue a license,

sioners devised the pretense of denying said and the other defendants, as members of the

permit on the ground that said premises were board of police commissioners, to issue a per

in a residential district; that this action mit, to continue the conduct of a dancing

was arbitrary, capricious, and unreasonable; pavilion in the premises known as the "Win

that it discriminated against plaintiff and in ter Garden" and located on the corner of Pierce and Sutter streets, San Francisco. A

favor of other proprietors of similar pavil. general demurrer to the petition was sus

ions located in districts which are of a far tained, without leave to amend, and judg

more residential character. Allegations folment followed, denying the application and lowed relating to the character of the dancdismissing the proceeding.

ing conducted in the premises and the genThe petition alleged that the plaintiff was eral conduct of the place. This, it was alin possession of the premises under a lease leged, was without criticism. It was also running until August 1, 1926; that on the alleged that plaintiff had expended large 1st day of June, 1918, acting under the ordi- sums of money in fitting up its place of businances enacted by the board of supervisors, ness for a dancing pavilion, and that it the police commissioners granted to peti- would suffer great injury if it was denied the tioner a permit to conduct a dancing pa- right to continue it. vilion in the premises, and that this permit From the allegations of the petition, it aphad 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

Om 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. I 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 Though contending that the trial judge others in like situation and condition were was justified in refusing to settle the bill of permitted by the same authority to continue. exceptions, respondents have argued and sub

It is not necessary to cite authority to the mitted this proceeding without questioning point that a lawful business, properly con- | the propriety of the issuance of the writ by ducted, and not injurious to persons, prop this court, if the facts disclose it to be a erty, or public welfare, cannot be confiscated proper case for commanding the trial judge by the arbitrary and capricious dictation of to settle the bill. Upon reading the briefs, any official body. The complaint alleges that our attention is for the first time directed to this was what was done in this case, and, of the fact that the appeal in which petitioner course, the demurrer admits the truth of intends using the bill of exceptions is not one these allegations.

of which this court has jurisdiction. Upon Judgment reversed.

a more careful examination of the contents

of the petition than was given when the alWe 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 ju

risdiction. Section 4, art. 6, Const. A bill of TANNAHILL v. SUPERIOR COURT OF ORANGE COUNTY et al. (Civ. 3928.)

exceptions is ultimately used as a basis for

presenting the merits of a case upon an ap(District Court of Appeal, Second District, Di.

peal. The writ of mandate, when issued by vision 2, California. July 25, 1922.) an appellate court to compel the settlement

of a bill of exceptions, is issued to aid the Courts m472(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.

risdiction-in this case the Supreme Court As a matter of policy, the District Court

of this state. Stewart v. Torrance, 9 Cal. of Appeal will not by writ of mandate compel

App. 209, 98 Pac. 396. See, also, Matter of settlement of a bill of exceptions in an action

Application of Davidson, 24 Cal. App. 407, involving the title to realty, since under Const.

141 Pac. 216, 144 Pac. 147. art. 6, § 4, the Supreme Court has exclusive appellate jurisdiction of such an action.

We do not say that we would not have jurisdiction, if we chose to exercise it. The

Constitution gives equal and concurrent juOriginal application for writ of mandate by J. M. Tannabill against the Superior

risdiction to the Supreme Court and to the

District Courts of Appeal to issue writs of Court of Orange County and Z. B. West, Judge thereof, Alternative writ discharged,

mandamus in all proper cases. Const., art.

6, § 4. See Favorite v. Superior Court, 181 and peremptory writ denied.

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.

of an original mandamus proceeding in aid

of appellate jurisdiction where that appellate FINLAYSON, P. J. This is an original ap- jurisdiction is vested originally in the other plication to this court for a writ of mandate court. See Collins v. Superior Court, 147 to compel the settlement of a bill of excep- Cal. 264, 81 Pac. 509; Favorite v. Superior tions. An alternative writ of mandate was Court, supra. issued-inadvertently, as it now appears. Because the alternative writ of mandate In due time respondents appeared and pre-was inadvertently issued, it is discharged, sented a general demurrer to the petition. and the petition for the peremptory writ of Thereafter the briefs were filed, and the mandate is denied. matter has been regularly submitted. Because we think the proceeding is not proper- We concur: WORKS, J.; CRAIG, J.

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

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