valid exercise of the police power, though the authority to declare any regulation invalid will be exercised with the utmost caution. [6] ID.—ID.—ID.—ID.-ID.-PRESUMPTION OF REASONABLENESS OF CHARGE. The presumption is in favor of the reasonableness of the charge, and the legislative body is at liberty to make the charge large enough to cover any reasonable anticipated expense.

[7] ID.-COUNTY ORDINANCE-IMPOSITION OF LICENSE TAX On GrazING CATTLE-REASONABLE TAX.-A county ordinance imposing a tax of seven cents per head upon cattle is not unreasonable or oppressive, where it appears that the amount of the tax does not exceed seven hundred dollars per year, and the evidence does not clearly show that the cost of regulation exceeds the amount of the tax.

[8] ID.-VOLUNTARY SURRENDER TO ARREST-TEST OF VALIDITY OF ORDINANCE HABEAS CORPUS-OBJECTIONABLE PROCEDURE.-An application for a writ of habeas corpus will be denied where the restraint is merely nominal and voluntarily submitted to in order to test the validity of an ordinance.

For Appellant-Edward F. Treadwell.
For Respondent--Pat. R. Parker.

The petitioner was charged in the justice court of Bridgeport township, county of Mono, with misdemeanor in having commenced and carried on within said county "the business of raising, grazing, herding and pasturing cattle without having taken out or procured a license therefor, as required by an ordinance of the Board of Supervisors of said county."

The said ordinance requires on the part of everyone engaged in such business the payment to the tax collector of the sum of seven cents for each cow, heifer, bull or bullock, owned by, in the possession or under the control of such person and used in such business in Mono county.

It is claimed that petitioner is entitled to his discharge for two reasons: first, the ordinance does not provide that the act complained of shall be a crime, and secondly, the ordinance is "unreasonable, unconstitutional and void, and was not passed for the purpose of regulating the business therein referred to, but was passed solely for the purpose of raising revenue."

[1] The ordinance does indeed omit to denounce as a crime the failure to secure said license, but petitioner was amenable to prosecution by virtue of section 435 of the Penal Code, providing that "Every person who commences or carries on any business, trade, ' profession or calling, for the transaction or carrying on of which a license is required by any law of this state, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor." [2] It has been held by the supreme court that "Any law of this state" includes ordinances of counties and municipalities. (Er parte Christensen, 85 Cal. 208; Ex parte Mansfiels, 106 Cal. 400; Ex parte Bagshaw, 152 Cal. 701.)

The second ground of attack is equally untenable. [3] It is well settled that the "Police power, the power to make laws to secure the comfort, convenience, peace and health of the community, is an extensive one, and in its exercise a very wide discretion as to what is needful or proper for the purpose is necessarily committed to the legislative body in which the power to make such laws is vested." (Er parte Whitwell, 98 Cal. 73.)

[4] "The manner and extent of such regulation are primarily legislative questions, and the courts will not interfere unless it clearly appears that the legislature has, under the guise of regulation, imposed an arbitrary or unreasonable burden upon the use of property or the pursuit of an occupation." (County of Plumas v. Wheeler, 149 Cal. 762.)

[5] "It is always a judicial question whether a particular regulation of the right to pursue a useful business is a valid exercise of the police power, though the authority of the courts to declare any regulation invalid will be exercised with the utmost caution. An ordinance must be clearly shown by the attacking party to be obnoxious and unreasonable to authorize the interference of the court." (In re McCoy, 10 Cal. App. 116.)

[6] And, as stated in County of Plumas v. Wheeler, supra: "It is to be remembered that the presumption is in favor of the reasonableness of the charge, and that the county is not limited to the exact amount of the expense, as it may subsequently develop. 'The municipality is at liberty to make the charge large enough to cover any reasonable anticipated expense.' (Atlantic etc. Tel. Co. v. Philadelphia, 190 U. S. 160.) What expense the county will be put to in the enforcement of the ordinance cannot be determined from an inspection of the ordinance itself. . . . To arrive at the amount of such expense it would be necessary to consider the topographical conditions of the county, the extent of the industry as practiced there, the effect of the industry on the roads, trails and other public property of the county, the probable cost of prosecutions for violations of the ordinance and any other matters having a reasonable tendency to indicate the cost to which the county would be subjected by the business sought to be regulated." It was there held that a tax of ten cents per head upon sheep and lambs in the absence of evidence as to cost of regulation could not be adjudged unreasonable.

Some evidence was taken in the matter before us, but it cannot be said that it clearly appears therefrom that the tax in question is unreasonable and oppressive. The amount realized from the license is comparatively small and the showing made by petitioner falls far short of that considered by this court in the McCoy case, supra.

The amount of the tax upon all the owners of the cattle does not exceed so it is admitted-the sum of seven hundred dollars a year and some years it is much less.

[7] This certainly appears quite reasonable in view of the prob able expense to the county that may be caused by the business, and while the evidence as to this is unsatisfactory and indefinite, it cannot be said that the presumption is overcome that said expense may approximate the amount of the tax, or that the board of supervisors was not entirely justified in concluding that the tax was proper to meet "A reasonable anticipated expense."

[8] But there is another reason why the application should be denied, and that is found in the return of the sheriff "That on November 1, 1909, the said Dave Miller did come to me as said sheriff, and state that he desired to surrender himself to my custody and re

lease his bail, and whatever custody or control I now have is solely under this surrender. Upon the said Dave Miller thus surrendering himself I did not assume actual custody or control of the person of the said petitioner, and he was permitted his own recognizance, and has never by me been in restraint or jeopardy." It thus appears that, if at the very moment the petitioner applied for the writ he was in the custody of the officer it was only momentary and voluntary, and invited for the purpose of obtaining a decision as to the validity of said ordinance. This practice is said to be not within the spirit of the Habeas Corpus Act, and not to be countenanced by the courts. In the case of In re Gow, 139 Cal. 243, the practice is condemned in the following language: "Our conclusion is that such a practice ought not to be countenanced, and hereafter the court will make strict inquiry in this class of cases whether the alleged imprisonment is actual and involuntary, and if it is found to be, as in this case, a merely nominal restraint, voluntarily submitted to for the purpose of making a case, the proceeding will be dismissed.

For the foregoing reasons, the writ is discharged and the proceeding dismissed.

We concur:

CHIPMAN, P. J.

HART, J.

BURNETT, J.

Civil No. 825. Second Appellate District. June 6, 1910. CAROL CROUSE-PROUTY and SIMON PROUTY, her husband, Plaintiffs and Respondents, v. JULIA A. N. ROGERS and W. B. JUDSON, Defendants and Appellants.

[1] APPEAL-ORDER GRANTING NEW TRIAL-DISCRETION.-Where a motion for a new trial is made on various grounds and the order granting the same is general, the ruling will not be disturbed on appeal unless the making of the order constitutes an abuse of discretion.

[2] ID.-ID.-ID.-CASE AT BAR-DISCRETION NOT ABUSED.-It is held herein, that the record fails to disclose any abuse of discretion on the part of the court in granting the motion for a new trial.

Appeal from the Superior Court of Los Angeles County-Chas. Monroe, Judge.

For Appellants-Haas, Garrett & Dunnigan.

For Respondents-O. B. Carter, Schweitzer & Hutton.

Action to quiet title. Judgment went for defendants; plaintiffs moved for a new trial, which motion was granted, and defendants prosecute this appeal from the order granting the same.

The judgment was based upon certain findings of the court to the effect that the purchase price of the lot in controversy was not paid to Glassell pursuant to the contract; that the deed to plaintiff Carol Crouse-Prouty did not describe the land set out in the complaint; that at the time defendant Julia Nolan Rogers received the deed to the lot she had no notice, either actual or constructive, of the deed from the corporation to plaintiff, and that plaintiff had no

claim of right, title, or interest in and to the lot in question, as to all of which findings the evidence was conflicting.

The grounds of the motion for a new trial were insufficiency of the evidence to justify the decision, newly discovered evidence embodied in affidavits used upon the hearing of the motion, and errors of law occurring at the trial. [1[ In such cases, where the order, as here, is general, this court will not disturb the ruling of the trial court unless the making of the order constitutes an abuse of discretion. (Brooks v. San Francisco etc. Ry. Co., 110 Cal. 178; Cole v. Wilcox, 99 Cal. 552; Von Schroeder v. Spreckels, 147 Cal. 186.)

On December 26, 1885, Andrew Glassell, who was the common source of title, entered into a contract with Ralph and W. E. Rogers, whereby he agreed to sell and convey to them a large tract of land, which included the lot in controversy. On March 24, 1886, Ralph and W. E. Rogers transferred this agreement for purchase to a corporation known as the Garvanza Land Company, which, under the terms of the agreement, caused a portion of the land to be subdivided into lots and blocks and designated it as "Garvanza Addition No. 1", map of which was duly recorded. On June 19, 1886, the corporation, for a valuable consideration, executed a deed, which was duly recorded, to plaintiff Carol Crouse-Prouty, whereby it conveyed to her the lot in question. After the execution of this deed by the corporation, and on December 15, 1886, the corporation transferred the Glassell contract to W. F. McClure, who, on the day following, assigned it to Ralph Rogers. On July 12, 1888, Glassell executed a grant deed to Ralph Rogers of the lands described in the said contract, excepting therefrom certain tracts, which excepted lands did not, however, include the lot involved in this action. W. E. Rogers joined Glassell in the execution of this conveyance. This deed recited payment of the consideration mentioned in the contract, and that "this deed is delivered and accepted in satisfaction of the existing obligations of the party of the first part (Glassell) by reason of said contract of December 26, 1885". On January 2. 1892, Ralph Rogers conveyed the lot in question, together with other lands, to one Conway, from whom, by mesne conveyance, defendants acquired whatever title they have to the lot. It thus appears that plaintiffs' claim of title to the lot is by virtue of the deed from the Garvanza Land Company, whose only interest in the lot was by virtue of the Glassell contract, while defendants claim under a subsequent deed made by Ralph Rogers after he had acquired title to the property by a deed executed pursuant to the Glassell contract.

The record contains evidence which tends to prove that Ralph Rogers organized the Garvanza Land Company as an agency by means whereof to more conveniently conduct the real estate business in which he was then engaged, and make sales of lands and interest owned by him; that he owned practically all of the stock and was president of the corporation; that the other directors and officers, except W. E. Rogers, who for a short period held a comparatively small amount of stock which Ralph subsequently acquired, were mere dummies; that all the persons, including the corporation, in whom the title to the property was at any time vested, held the

same without consideration and as trustee for Ralph Rogers; that defendant Julia Nolan Rogers at the time she claims to have acquired the lot by purchase for a valuable consideration had actual notice of the conveyance of the lot to plaintiff Carol Crouse-Prouty, and of the fact that she claimed ownership under the deed from the corporation. Moreover, under the facts presented, the court might be justified in holding the record of plaintiff's deed sufficient to impart constructive notice. (Rogers v. McCartney, 3 Cal. App. 34.)

This and other evidence on the part of plaintiff, including a number of affidavits of newly-discovered evidence presented at the hearing, tended to establish facts contrary to those found by the court, and, by reason of the granting of the motion, it must be presumed that the court arrived at the conclusion upon the hearing thereof that the evidence upon which it based the findings was insufficient, either with or without the newly-discovered evidence shown by affidavits, to support them. [2] The record fails to disclose any abuse of discretion on the part of the court in granting the motion.

The order appealed from is, therefore, affirmed.

We concur:

ALLEN, P. J.

TAGGART, J.

SHAW, J.

Crim. No. 117. Third Appellate District. June 11, 1910. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. J. C. JONES, Defendant and Appellant.

[1] CRIMINAL LAW-MURDER-KILLING DURING GENERAL ALTERCATION-EVIDENCE-REMARKS OF PARTICIPANTS-RES GESTAE.-Proof in a prosecution for murder, occurring during a general altercation, of any remark made by any of the crowd having any material bearing on the affray is admissible as a part of the res gestae independent of whether or not it was heard by the defendant.

[2] ID.-EVIDENCE-INDEFINITE QUESTION-DUTY OF COUNSEL UPON OBJECTION. Where a question, on its face, or of itself, does not indicate the nature of the testimony thus sought to be brought out, it is the duty of counsel asking the question, where objection is made, to state to the court its purpose, so that the pertinency and competency of such testimony, if material and competent, may thus be made to appear.

[3] ID.-ID.-CASE AT BAR-ERRONEOUS RULINGS CONCERNING ADMISSIBILITY OF EVIDENCE-ERRORS NOT PREJUDICIAL.-It is held herein, that the errors relative to the admissibility of evidence, were not sufficiently prejudicial to compel a reversal.

ID.-APPEAL-REVERSAL

OF

[4] JUDGMENT-ERROR-RULE.-The general rule is that the judgment and order appealed from should not be reversed unless the error complained of is such as to make it reasonably manifest that a different result would have followed the trial but for such error.

[5] ID. CASE AT BAR-INSTRUCTIONS DEFINING MURDER AND MANSLAUGHTER JUSTIFIED BY EVIDENCE.-It is held herein, that the giving of the instructions correctly distinguishing the crime of murder from the crime of manslaughter was not prejudicially erroneous, as the giving thereof was justified from the evidence.