ment in a newspaper." The court said, "The making and the publishing of the statement are charged in the indictment as two distinct acts, which it is alleged were performed at different times, and each of these acts is declared to be a felony." Under these circumstances the court very properly held that the indictment charged two offenses, and was obnoxious to a demurrer upon that ground. That case is not in point here. The defendant in the case at bar is not charged with furnishing liquor to an Indian at one time, and with causing it to be furnished at another time. So far as appears, it was one transaction, and all performed at the same time. The judgment and order appealed from should be reversed, and the cause remanded, with directions to the court below to overrule the demurrer.

Pol. Code, & 3766, as amended March 28, 1895 (St. 1895, p. 326), provides that the board of supervisors "must" contract for publishing the delinquent tax list with the lowest bidder after 10 days' notice of the letting of the contract. Section 3764 requires the tax collector to publish the delinquent list by June 5th. Held that, on failure of the supervisors to contract for publishing the list, the tax collector was not authorized to do so.

Commissioners' decision. Department 1. Appeal from superior court, Monterey county; N. A. Dorn, Judge.

Action by M. J. Smeltzer against George S. Miller, auditor of Monterey county. There was a judgment for defendant, and plaintiff appeals. Reversed.

John K. Alexander and Geo. A. Dougherty, for appellant. P. E. Zabala, for respondent.

VANCLIEF, C. The plaintiff, as a citizen and taxpayer of said county of Monterey, brought this action to enjoin the defendant auditor perpetually from drawing his warrant upon the county treasurer in favor of one W. J. Hill for the payment of his claim against the county for having published the delinquent tax list for the year 1894-95, which claim, for the sum of $466.65, had been formally allowed by the board of supervisors of that county. The court sustained a general demurrer to the complaint, dissolved the temRehearing denied.

porary injunction, and rendered judgment in favor of defendant. Plaintiff appeals from the order dissolving the injunction, and from the judgment.

Whether or not the court erred in sustaining the demurrer is the only question involved or presented, and this is reduced to the question whether the complaint shows that the demand of Iill for having published the delinquent list was not a lawful charge against the county. The claim of Hill was for having published the delinquent list four weeks immediately preceding June 20, 1895, as to which the complaint contains the following: "Plaintiff avers that said publication of said delinquent tax list or roll, if made, was and is entirely unauthorized by any law or order or ordinance, and without any right or authority whatever; that no advertisement for or notice of the letting of any contract therefor was made or given by the board of supervisors of said county, or at all; that no contract therefor was made by said board of supervisors with said Hill, or any one else, or at all; that said Hill was not, nor was any one else, the lowest or any bidder for the publication of said delinquent tax list; that no proposals therefor were asked for or received by said board of supervisors, or any one else; that no contract therefor was awarded to the lowest or any bidder by said board of supervisors, or by any one, or at all; that the publication of said list by said W. J. Hill, if made, was voluntary, and without any right, authority, or validity whatever; that said claim of said W. J. Hill, based and founded thereon as it is, is illegal, and constitutes no legal or valid claim or demand against the county of Monterey, and, if paid, will wrongfully and unlawfully increase the burden of taxation on this plaintiff and on and of all other taxpayers of said county." It is further alleged, in substance, that the defendant has declared and threatened that he will draw his warrant on the treasurer in favor of Hill for said sum of $466.65, and will do so unless enjoined by order of the court. No further statement of the contents of the complaint is necessary, since it is not claimed to be otherwise defective than in that it does not show that Hill's demand was not a lawful and valid charge against the county.

I think the court erred in sustaining the demurrer. The tax collector had no authority to contract for the publication of the delinquent list. Section 3766, Pol. Code, as amended March 28, 1895 (St. 1895, p. 326), provides: "The publication [of delinquent list] must be made once a week for three successive weeks in some newspaper, or supplement thereto, published in the county, and the board of supervisors must contract for such publication with the lowest bidder, and after ten days' public notice that such will be let. The bidding must be by sealed proposals. If there is no newspaper published in the county, then by posting a copy of the list in three public places in each town

(113 Cal. 147) VANDERHURST v. THOLCKE et al. (S. F. 152.)

(Supreme Court of California. June 5, 1896.) NUISANCE-TREES ON SIDEWALK-DETERMINATION OF CITY AUTHORITIES-REVIEW.

The determination of the common council of a city (given by the city charter the care and control of the streets, with power to define, prevent, and remove nuisances) that trees two to five feet in diameter, standing in the center of a sidewalk twelve feet wide, constitute a nuisance, cannot be reviewed.

Department 1. Appeal from superior court, Monterey county; N. A. Dorn, Judge.

Action by William Vanderhurst against J. W. Tholcke and others. Judgment for plaintiff. Defendants appeal. Reversed.

J. J. Wyatt, for appellants. Parker & Sargent, for respondent.

VAN FLEET, J. This action was brought to enjoin the authorities of Salinas city from cutting down or removing, as an obstruction and nuisance, certain shade trees standing and growing on the sidewalk in front of plaintiff's premises, within the corporate limits of said municipality. The material facts found by the court are: That plaintiff's premises (which are on a corner) front on Pajaro and Alisal streets, two regularly established public streets of said city, under the control and management of the authorities thereof, having curbed and graveled sidewalks some 12 feet wide. The trees in question were set out by plaintiff many years since, and have now grown so that their trunks are from 2 to 5 feet in diameter, and with a height of about 50 feet, and they stand in a row almost in the center of the sidewalk-15 of them on Alisal, and 10 on Pajaro, street. That the city council has ordered the removal of the trees, as presenting an obstruction to public travel, and a nuisance. And that defendants and appellants (one of whom is the superintendent of streets of said city, and the other chairman of the street committee of the common council thereof) are threatening to carry said order into execution. It was further found, upon evidence admitted against the objec- | tion of defendants that the same was immaterial and incompetent, that said trees are of great use and benefit to plaintiff, and beautify and protect his premises; and that they are of public utility and benefit in furnishing shade from the heat of summer, and shelter from wind and storm, and serve to beautify the streets, etc.; and it is found that there is sufficient room and passageway for travel along said walks on each side of said trees. And, apparently as a conclusion and deduction from these last special and probative facts, the court found that the trees are not an obstruction to the use of the said streets or sidewalks, and do not constitute a nuisance. Judgment was en

tered restraining the removal of the trees, from which and an order refusing a new trial the defendants appeal.

It is contended that the finding that the trees do not constitute an obstruction or nuisance is without competent support, and this is the material question arising, since, without the aid of that finding, the judgment cannot stand. We are of opinion that this contention must be sustained. Under the charter of Salinas city, the common council is given the general care, custody, and control of the streets, with power to lay out, open, alter, vacate, improve, cleanse, and repair the same; to make regulations for the protection of health, safety, order, and cleanliness of the city; and to define prevent, and remove nuisances. Charter of Salinas City (St. 1875-76, p. 98.) Under this

grant of power there can be no question that the city authorities can, and it is their duty to, cause the removal of anything constituting an obstruction to the streets and sidewaiks (the latter being a part of the street), and abate it as a nuisance, since anything which is an obstruction to the free use of a public street constitutes a public nuisance. Pen. Code, § 370; Taylor v. Reynolds, 92 Cal. 573, 28 Pac. 688; Marini v. Graham, 67 Cal. 130, 7 Pac. 442. This power, indeed, is not questioned; but it is contended that the determination of the city authorities in the premises is not conclusive, but is open to review by the courts, and that it was competent for the court to take evidence upon the question as to whether or no the trees in question constituted an obstruction to the free use of the streets, and hence a nuisance. But the rule would seem to be that in an instance, where the thing may or may not, in its nature or circumstances, constitute an obstruction, the determination of the city authorities, in the absence of fraud or oppression or circumstances disclosing a manifest abuse of their discretion, is conclusive, and not open to question by the courts. North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207; Roanoke Gas Co. v. City of Roanoke (Va.) 14 S. E. 665; Chase v. City of Oshkosh (Wis.) 51 N. W. 560. Mr. High, in his valuable work on Injunctions (volume 3, § 593), says: "Courts of equity are averse to interfering with the exercise of the discretion or judgment of public officers in matters committed to their care; and where municipal or town authorities are charged by law with the care of highways, and are empowered to remove obstructions therefrom, equity will not pass in review upon their judgments as to what constitutes an obstruction." And, in Beach on Public Corporations (section 1234), the author, speaking of the same character of obstruction as the one under consideration, uses this language: "A city may, without notice to an abutting landowner, remove shade trees which have been growing on the sidewalk of a public

street, if they constitute an obstruction to public travel; and whether or not such trees are an obstruction must be determined by the proper city authorities, and their determination cannot be reviewed by the courts, unless they have clearly abused their discretion. It is not necessary, in order that trees shall constitute an obstruction so as to authorize their removal, that they should interrupt or stop travel."

In this instance we think it very clear, under the undisputed facts disclosed, that the question was one upon which the determination of the city council must be held final. As we have seen, the trees in controversy were very large, and, standing immediately in the center of the sidewalk, necessitate the public travel passing along the narrow edges or spaces left on either side thereof, instead of having the enjoyment of the entire width and surface of the walks to which it is entitled.

Such an obstruction constitutes a nuisance per se. Chase v. City of Oshkosh, supra. It was not essential to the power of the city to remove the trees that they should completely obstruct the walk, or take up the entire width thereof. The degree of obstruction justifying their removal is a question for the city, in the absence, as we have said, of an abuse of discretion. The public is entitled to the free and unobstructed use of the entire street and sidewalk for purposes of travel, subject only to the reasonable and proper control of the municipality (24 Am. & Eng. Enc. Law, 33, 34; Ex parte Taylor, 87 Cal. 91, 25 Pac. 258; Beach, Pub. Corp. supra); and that it cannot enjoy this right with the obstruction presented by these trees, situated as they are, is beyond question. When it became established, therefore, that the city council had determined that the trees constituted an obstruction to public travel such as to require their removal, the court should not have proceeded to review such action, and the evidence admitted for the purpose was wholly incompetent, and did not legally tend to sustain the finding based thereon. The mere form of the order declaring the trees a nuisance, and requiring their removal, was immaterial. An ordinance was not required for the purpose, and the order in question is clearly sufficient as a direction and authorization to the superintendent of streets to remove the obstruction. The judgment and order are reversed.

We concur: HARRISON, J.; GAROUTTE, J.

land being taken in the name of a husband, while the purchase price was paid half by him and half by her, can claim such half against his administrator and general creditors, though the estate be insolvent; they not being purchasers, the law of fraudulent conveyances not being applicable, and she not being estopped, though after the conveyance the property, with the knowledge and consent of the wife, remained in the apparent sole possession and ownership of the husband, and his financial standing was based in part on the fact that the property stood in his name, and his indebtedness was contracted without notice to his creditors of his wife's equity; no act, conduct, or admission of hers by which the creditors were induced to give him credit being shown, and it not even being shown that they knew the title stood in his name, or that means were taken by them to ascertain the true state of the title.

Commissioners' decision. Department 1. Appeal from superior court, Santa Clara county; John Reynolds, Judge.

Action by Ann Murphy against Edward W. Clayton, administrator of D. J. Murphy, deceased, and another. Judgment for plaintiff. Defendant Clayton appeals. Affirmed.

Kittredge & Kraft and Rhodes & Barstow, for appellant. Geo: W. Lewis (J. H. Campbell, of counsel), for respondent.

VANCLIEF, C. This is an action to establish a resulting trust in land. The cause was tried by the court, without a jury. Defendant Clayton, administrator, etc., appeals upon the judgment roll.

The following is a condensed statement of the findings of fact: The land described in the complaint was conveyed to D. J. Murphy on the 31st day of August, 1887, upon the consideration of $23,000 then paid by said D. J. Murphy and the plaintiff jointly; plaintiff paying one-half thereof, namely, $11,500, from her separate property and estate. From the date of said conveyance till on or about the 20th day of June, 1833, when said D. J. Murphy died, said land was of record in his name. Said conveyance was made to him with the knowledge and consent of plaintiff. From the date of said conveyance to the time of his death the premises remained in the apparent sole possession and ownership of said Murphy, and was managed and dealt with by him as apparently the sole owner thereof, with the plaintiff's knowledge and consent. The plaintiff (his mother) and the defendant Kate Murphy (his wife) were his only heirs at law. The defendant Clayton, by an order of court duly made on the 21st day of July, 1893, was appointed administrator of the estate of said D. J. Murphy, and from thence hitherto has been the duly qualified and acting administrator of said estate. Upon qualifying, he took possession of, and still holds, the whole of said land, claiming that it is a part of said estate. A notice to creditors was duly published on the 27th day of July, 1893. Within 10 months thereafter, claims against said decedent, aggregating $90,000, were presented and allowed by said administrator and the judge