tion) for the erection of a plant and pipe [1] Appellant asserts that there were trust line, and the method by which they shall relations between Smith and Blaisdell, and apportion the 80,000 shares of the capital that the details of the work, the amounts restock of said corporation to be paid them for ceived by Blaisdell, the sums paid to his astheir work of construction and for materials signees, and other matters should have been to be used. First, there is an agreed valua- allowed in evidence. We think that this contion of the machinery, lumber, etc., contrib- tention is correct. Whenever proof regarduted by each of the parties. Next, it is stip-ing these matters was offered during the ulated that each party shall have the right trial, it was met with the objection that to contribute one-half of the necessary ex-partnership had not been proven and the pense of carrying on the work for the "King of Arizona Company"; but, if either fails so to do, the other reserves the right to furnish more than half the amount needed, receiving credit for the excess above his share so advanced, which shall bear interest at the rate of 1 per cent. per month. The agreement next recites that, when the 80,000 shares of stock shall have been issued in payment for the work done and material furnished to the "King of Arizona Company," said shares shall be distributed to the parties in proportion to the amounts advanced by them respectively during the progress of the work. The rest of the contract relates to the salary of Blaisdell as manager, to his powers as superintendent, and to the method whereby he is to spend money for supplies. The answer denied all of the material allegations of the complaint and pleaded the bar of the statutes-sections 337, 338, and 339 of the Code of Civil Procedure. court sustained such objection. It is not necessary to examine the assigned errors in detail, as practically all of them are based on the court's theory that no evidence of any other transactions was admissible until satisfactory proof of a copartnership had been produced. In its rulings upon this subject the court was in error. The contract of March 1, 1899, was set out in full in the complaint and an accounting was demanded. Under the contract in question, a trust relationship was created, and, if anything of value had been received by defendant, or in his behalf, pursuant to this agreement, there might, and probably would, arise a necessity for an accounting with the right of S. Morgan Smith, or his representative to demand it. It is true that the court found that Blaisdell had received nothing under the contract in question, but that was after the rulings by which evidence on that subject was excluded. [2] The court found that the cause of action set out in the amended complaint was barred by the provisions of sections 337 and 339 of the Code of Civil Procedure. It is conceded that the original complaint was filed on July 20, 1903, although the record does not disclose the date. The complaint alleges that the contract was completed on July 21, 1899. This is not denied. Hence, if the action was begun on July 20, 1903, it is not barred. Code Civ. Proc. § 343. We find no other alleged errors requiring attention. The order denying defendant's motion for a new trial is reversed. We concur: SHAW, J.; SLOSS, J.; ANGELLOTTI, J.; LORIGAN, J.; HENSHAW, J. Findings of facts and conclusions of law were all practically in favor of the defendant, following closely the averments of the answer. The court found that there was no partnership between Smith and Blaisdell; that pursuant to the contract of March 1, 1899, Smith and Blaisdell entered into an agreement with the "King of Arizona Company" to construct and equip its reduction plant, and that their compensation was to be two-fifths of the stock of said corporation; that defendant was not called upon to furnish one-half of the cost of said reduction plant and equipment; that defendant did not violate any duties toward any copartnership nor did he have any money belonging to said copartnership under his control; that neither the defendant nor his attorney received any stock from the "King of Arizona Company"; that S. Morgan Smith had not advanced any money for any copartnership existing between him and defendant, and that defendant, Hiram Blaisdell, was not shown to have received (Court of Appeal, Second District, California. any money, thing of value, or property whatsoever, either from the "King of Arizona Mining & Milling Company" or from the 1. EVIDENCE (§ 83*)-PRESUMPTION-PERFORM"King of Arizona Company," or from any ANCE OF OFFICIAL DUTY. Where it is not shown when the trial was corporation or person in any manner grow- had in a proceeding to condemn lands for a ing out of or connected with the transac-street, or when the verdict was rendered, it will tions and enterprises provided for by the he presumed, under Street Law (St. 1903, c. contracts referred to and set out in plain- by the provisions of the Code of Civil Proce268) § 6, requiring such actions to be governed tiff's amended complaint. dure, that the judgment was entered by the W. (15 Cal. A. 358) TITLE INS. & TRUST CO. et al. v. LUSK et al. (Civ. 957.) Feb. 11, 1911.) For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes clerk within 24 hours after rendition of the 2. CONSTITUTIONAL LAW (§ 106*) -VESTED RIGHTS REMEDIES speedy, and adequate remedy at law is open to petitioners. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 8-34; Dec. Dig. § 3.*] 7. STATUTES (§ 85*)-GENERAL AND SPECIAL [Ed. Note.-For other cases, see Statutes, Dec. Dig. § 85.*] The right given to a city by Street Lawgarding condemnation proceedings, in contra1903 (St. 1903, c. 268) § 14, to discontinue condemnation proceedings without prejudice at any time before payment of compensation, is not a vested right, and Street Law 1909 (St. 1909, c. 684) 11, providing that proceedings to condemn lands then pending should be thereafter continued under that law, and section 8, providing that condemnation proceedings may be abandoned up to the time of entry of the interlocutory judgment, are not invalid; such sections merely relating to remedies which are always within the control of the Legislature, provided a reasonable remedy is still left. [Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 106.*] RIGHT OF ABANDON PROCEEDINGS 8. EMINENT DOMAIN (8 246*) The right of a city to abandon condemnation proceedings for street purposes is not affected by Code Civ. Proc. § 581, subd. 2, authorizing dismissal of actions by either party on the written consent of the other, since Street 3. CONSTITUTIONAL LAW (§ 42*)-CONSTITU-Law 1903 (St. 1903, c. 268) § 14, as amended TIONAL QUESTIONS-WHO MAY RAISE. by Street Law 1909 (St. 1909. c. 684) § 8, is apOnly those can question the validity of aplicable to proceedings pending when it was statute who would be injured by its enforce-enacted. ment. [Ed. Note.-For other cases, see Eminent Do[Ed. Note.-For other cases, see Constitution- main, Cent. Dig. §§ 638-643; Dec. Dig. § 246.*] al Law, Cent. Dig. §§ 39, 40; Dec. Dig. § 42.*] Where a city, which under Act 1903 (St. 1903, c. 268) 14, had the right to discontinue without prejudice proceedings to condemn land for streets at any time before payment of compensation, had nine months after the passage of Act 1909 (St. 1909, c. 684) § 8, changing the limit for discontinuance to the time of entering interlocutory judgment, in which to discontinue, but entered such judgment without so doing, it cannot subsequently claim that the change in the statute was an unreasonable impairment of its remedy, and hence an unconstitutional interference with its vested rights. [Ed. Note. For other cases, see Constitutional Law, Dec. Dig. § 106.*] 5. EMINENT DOMAIN (§ 167*)-STREET WIDENING-STATUTES-EFFECT PENDING PROCEED Petition by the Title Insurance & Trust Company and others against R. M. Lusk and others for writ of mandate directing the city council to proceed to confirm, correct, or modify an assessment presented to them or to order a new assessment. On demurrer to the petition. Demurrer overruled. Thomas C. Ridgway and Hatch, Lloyd & Hurst, for petitioners. John W. Shenk, City Atty., and C. E. Haas, Deputy City Atty., for respondents. Ward Chapman, amicus curiæ. ALLEN, P. J. It appears from the petltion and affidavit filed that heretofore, in 1907, under the provisions of the street improvement act of 1903 (St. 1903, c. 268), the city council of Los Angeles duly adopted an ordinance declaring its intention to order the widening of Eighth street, between Main street and Central avenue; that said ordinance further designated the land necessary and convenient to be taken for such improve ment and fixed the boundaries of the assess [Ed. Note. For other cases, see Eminent Do- ment district, within which was included main, Dec. Dig. § 167.*] 6. MANDAMUS (§ 3*) PUBLIC OFFICERS STREET IMPROVEMENTS. Under Code Civ. Proc. § 1085, providing that a writ of mandate may be issued to a corporation, board, etc., to compel performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, such mandate may issue to a city council to compel it to proceed as expressly required by Street Law 1903 (St. 1903, c. 268) § 19, to pass upon and determine, as in their discretion and judgment is proper, the questions involved in the protests as to a street assessment and the orders with reference to its confirmation or modification, or the ordering of a new assessment in lieu of the original assessment filed, such action on the part of the city council being a duty resulting from an office and no plain, the property benefited by such improvement; that this ordinance was approved and published, and was followed by a subsequent ordinance ordering the improvement to be made and directing the city attorney to bring an action in the name of the city of Los Angeles for the condemnation of the property described in said ordinance necessary to be taken for the improvement mentioned. The action was instituted by said city attorney on July 3, 1907, against those whose lands were to be taken for such improvement. It is not shown at what date the trial was had or verdict returned, but it does appear that on January 3, 1910, an interlocu tory judgment was entered in favor of the | upon oral argument that section 11 is violaseveral defendants for the sums determined as damages which should be awarded the various defendants by reason of the taking of the land for the contemplated improvement. tive of the Constitution in that it impairs a right once vested. This section affects a remedy as distinguished from a right. "Remedies must always be under the control of the Legislature" (Cooley, Const. Lim. p. 381); and where a reasonable remedy is provided it is immaterial that it alters one previously existing. [3] No one may question the constitutionality of a legislative act unless its enforcement would work an injury to the complaining party. [4] Whatever may be the effect which should be given this section in cases where the remedy is shown to be unreasonably impaired, the city in the case at bar is not in position to insist upon its unreasonable character, for it is apparent from the record that nearly nine months elapsed between the passage of the act of 1909 and the entry of the interlocutory judgment, during all of which time it had notice of the limitation upon the remedy of abandonment and dismissal imposed by section 14. It cannot, therefore, be said that this section unreasonably impaired the remedy in the case under consideration, and this case is brought within the rule of Terry v. Anderson, 95 U. S. 628, 24 L. Ed. 365, and the other cases cited in Tuttle v. Block, 104 Cal. 449, 38 Pac. 109. [1] It will be presumed, in view of section 6 of the street law, to the effect that actions for the condemnation of property brought thereunder shall in all respects be subject to and governed by such provisions of the Code of Civil Procedure now existing or that may hereafter be adopted, as may be applicable thereto, except in the particulars otherwise provided for in this act, that the judgment was entered by the clerk within 24 hours after the rendition of the verdict, as provided by section 664 of the Code of Civil Procedure. It further appears that after the entry of said interlocutory judgment, to wit, on the 29th day of July, 1910, a diagram of said improvement and of the property within the assessment district described in the ordinance with the assessment, was filed with the clerk of the city council of the city of Los Angeles; that thereafter protests were filed against such assessment on the ground that the same was inequitable; that upon the hearing of such protests, to wit, on the 15th day of November, 1910, the same were sustained by the city council; but that the city council have ever since failed and refused and now fail and refuse to either confirm, modify, or correct said assessment, or to order a new assessment, or to take any of the proceedings specified in section 19 of the act of 1903 (St. 1903, c. 268), justifying their action upon the claim that they desire to abandon the proceedings, and pursuant thereto have directed that an ordinance be prepared aban-cil possessed no right, even though the prodoning the proceedings and directing that said ordinance be presented for passage. Respondents interpose a general demurrer to the petition. [5] It follows, then, that all proceedings connected with the improvement by the council originally ordered were, after April 21, 1909, controlled by the act of that date, which must be construed as limiting the right of dismissal and abandonment to the time of the entry of the interlocutory judg ment. This being established, the city coun ceedings were instituted under the act of 1903, to abandon the same or direct a dismissal of the condemnation or other proceedings, after it had procured to be entered the interlocutory judgment. [2] The proceedings set forth in the petition were instituted under the provisions of [6] There remains, then, but one question, the street law of 1903, under section 14 of which relates to the right of this court to diwhich act the right to abandon the proceed-rect a city council to proceed, as by section ings by ordinance and cause a dismissal 19 of the act they are required to do, in passthereof without prejudice was given at any time prior to the payment of the compensation awarded to the defendants. Section 8 of the act of 1909, approved April 21, 1909 (St. 1909, c. 684), provides that the city council may at any time prior to the entry of interlocutory judgment abandon the proceedings by ordinance and cause said action to be dismissed without prejudice. Section 11 of the act of 1909 provides that any proceeding or action for any improvement, as provided for in the act, already commenced and pending at the time the act takes effect, under and by virtue of any ordinance of intention theretofore passed, shall, from the stage of any such proceeding or action already commenced and in progress at the time of the act taking effect, be continued under the provisions of that act. It was insisted ing upon and determining, as in their discretion and judgment is proper, the questions involved in the protests as to the assessment and the orders with reference to its confirmation or modification, or the ordering of a new assessment in lieu of the original assessment filed. We are of opinion that such action upon the part of the city council is a duty resulting from an office, and that under section 1085 of the Code of Civil Procedure a mandate may be issued to compel the performance of an act which the law specially enjoins as a duty resulting from an office; and that no plain, speedy, and adequate remedy in the ordinary course of law is open to the petitioners. [7] We are not in sympathy with the contention of respondents that the act of 1909 is in contravention of the Constitution, which prohibits special legislation. The procedure may not be said to be special because it is peculiar to the character of the action with reference to which it is prescribed. Clute v. Turner, 157 Cal. 73, 106 Pac. 240; People v. Henshaw, 76 Cal. 436, 18 Pac. 413; Hellman v. Shoulters, 114 Cal. 136, 44 Pac. 915, 45 Pac. 1057. [8] Nor are we of the opinion that subsection 2 of section 581 of the Code of Civil Procedure in any wise affects the question here involved. The street law by express terms limits the control of the provisions of the Code of Civil Procedure to such cases as are not specially provided for in the act, and we find in the act of 1909 an express provision, which limits the right of dismissal in condemnation proceedings, different from the right accorded the court in the dismissal of actions under section 581. We are of opinion, therefore, that the street act and its various provisions with reference to the procedure connected with the condemnation of property by municipalities for street purposes is constitutional, and that under such act no dismissal of the action or abandonment of the proceedings could be had after the entry of the interlocutory judgment; that the petition here presented presents facts sufficient to entitle petitioners to a writ directing the city council to proceed and confirm, correct, or modify the assessment presented to them, or order a new assessment, as in their judgment is proper in the premises. We do not desire to be understood as passing upon any questions sought to be raised as to the regularity of the proceedings before the city council anterior to the entry of the interlocutory judgment. We have heretofore by an order denied the right of those affected by the improvement to intervene and raise such questions in this proceeding, upon the theory that, if any irregularities in the proceedings connected with the ordinances or orders as affecting the jurisdiction of the city council to order the improvement in fact exist, a remedy full and complete may be had by appropriate equitable action in the superior court, and that this proceeding is inappropriate for the determination of such questions. initiative petition after the expiration of a certain number of days, in case the petition is to invoke a referendum with reference to an found insufficient, is inapplicable to a petition ordinance already passed, notwithstanding section 198b, providing therefor, declares that the petition shall be in all respects, etc., in accordance with the provisions of section 198a, and shall be examined and certified by the clerk in all respects as therein provided, since such provision refers solely to the form and substance and certification of the original peti tion. Under City Charter of Los Angeles (Laws 1903, c. 6) § 198b, providing for a referendum with reference to ordinances passed by the city council on a petition executed in the prescribed properly executed within 30 days after the final manner, where a referendum petition is not passage of the ordinance sought to be referred the ordinance becomes effective, and is not subject to further reference. Corporations, Dec. Dig. § 108.*] [Ed. Note.-For other cases, see Municipal Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge. Mandamus, on petition of G. W. Rushton and others, against Lorin A. Handley, substituted for Harry J. Lelande, City Clerk of Los Angeles. From a judgment discharging an alternative writ, relators appeal. Affirmed. Milton K. Young, and John I. Stafford, for appellants. John W. Shenk, City Atty., and Emmet H. Wilson, Chief Deputy, for respondent. ALLEN, P. J. [1] The petition, the basis for the issuance of the alternative writ, discloses that the freeholders' charter of Los Angeles city contains certain provisions with reference to the initiative and referendum; the first thereof having reference to the initiative is found in section 198a (Laws 1903, c. 6), which provides: "The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers of each such paper shall make oath before an officer competent to administer oaths, that the statements therein made are true, and An order will be entered overruling re- that each signature to the paper appended is spondents' demurrer to the petition. We concur: SHAW, J.; JAMES, J. (15 Cal. App. 448) the genuine signature of the person whose name purports to be thereunto subscribed. Within ten days from the date of filing such petition the city clerk shall examine and from the great register ascertain whether or * and RUSHTON et al. v. HANDLEY, City Clerk of not said petition is signed by the requisite 1. MUNICIPAL CORPORATIONS (§ 108*)-CHARTER-CONSTRUCTION-INITIATIVE AND REF ERENDUM-PETITION. City Charter of Los Angeles (Laws 1903, c. 6) § 198a, permitting amendments to an number of qualified electors, * he shall attach to said petition his certificate showing the result of said examination. If, by the clerk's certificate, the petition is shown to be insufficient, it may be amended within ten days from the date of such certificate. The clerk shall, within ten days after such amendment, make like examina- | pray for a writ of mandate, directing the tion of the amended petition, and if his cer- city clerk to allow the persons who filed writtificate shall show the same to be insufficient, ten demands therefor to amend said petition it shall be returned to the person filing the by signing their names, streets, and numbers same, without prejudice, however, to the fil- to the body thereof, and that the clerk be ing of a new petition to the same effect." forthwith required to compare the names Another provision of the charter, section annexed to all the petitions filed with him 198b, is with reference to the referendum. with the great register of Los Angeles counThis provides, with reference to the char- ty, to ascertain whether or not said petition acter of ordinances under consideration: is signed by the requisite number of quali"No ordinance passed by the city council fied electors, and, if so found sufficient, that shall go into effect before thirty he submit same to the city council without days from the time of its final passage and delay. its approval by the mayor, and if during said thirty days a petition signed by electors of the city equal in number to at least seven per cent. of the entire vote cast for all candidates for mayor at the last preceding general election at which a mayor was elected, protesting against the passage of such ordinance, be presented to the council, the same shall thereupon be suspended from going into operation, and it shall be the duty of the council to reconsider such ordinance, and if the same is not entirely repealed, the council shall submit the ordinance, as is provided in section 198a of this charter, to the vote of the electors of the city. * * Said petition shall be in all respects in accordance with the provisions of said section 198a, except as to the percentage of signers, and be examined and certified by the clerk in all respects as is therein provided." Further that on April 22, 1910, a certain ordinance, having theretofore been passed by the city council, was approved by the mayor. That on May 20, 1910, plaintiff and others filed with the defendant, city clerk of Los Angeles, certain separate papers, the aggregate thereof constituting a petition, protesting against the passage of such ordinance; that such petition in the aggregate contained the percentage of electors required by section 198b, but the separate papers, or many of them, so filed as a petition, were not verified by one of the signers of such separate paper; that by reason thereof the clerk, on May 26, 1910, certified to the council the insufficiency of the petition. Thereafter, and after the lapse of more than 30 days from the approval of the ordinance, plaintiffs and others who had originally signed said papers asked to amend the same by adding thereto the name of the party verifying each separate paper, so as to make such party a petitioner in the separate paper so by him verified. This was denied, and thereafter, on June 4, 1910, plaintiffs presented to the clerk other papers containing the names of electors, each of which papers was verified by a signer thereof; but upon examination the clerk found that these signatures were in duplicate, that many of the persons verifying what was termed the "amended papers" were signers upon the original papers on file constituting the first petition, and for that reason the clerk declared the amended petition insufficient. Plaintiffs therefore The proper construction to be given section 198b, and with reference to that portion thereof which provides, "said petition shall be in all respects in accordance with the provisions of said section 198a, * and be examined and certified by the clerk in all respects as is therein provided," presents the question for determination upon this appeal. It is insisted by appellants that this lastquoted portion of section 198b authorizes the amendment of a petition under that section in the manner and to the extent provided by section 198a. We are of opinion that such was not the intent of the framers of the charter, or of the electors who adopted the same; that the words "said petition shall be in all respects," etc., "and be examined and certified," etc., refer solely to the original petition provided for by section 198a, and refer solely to the form, substance, and certification of such original petition; that it is obvious that that portion of section 198a permitting amendments after 30 days cannot and does not apply to a petition which seeks to invoke the referendum. [2] This is apparent from the provision of the section generally, to the effect that the ordinance passed shall not go into effect before 30 days, and that 30 days is the time given within which the electors shall file their protests, and upon the filing of which protests in the manner and form prescribed, and in no other event, is the ordinance suspended from operation beyond the 30 days. It is plain that, if the requisite petition constituting the protests be not filed within 30 days, the ordinance becomes effective, and, being so effective, the referendum no longer applies to it, and if the elector desires relief from its operation such relief must be worked out through the initiative section before referred to by a repeal of such ordinance, brought about by the manner therein provided. Otherwise an insignificant number of voters might present a protest to the passage of an ordinance on the twenty-ninth day after its approval, and the insufficient character thereof being apparent, they could then file other and additional protests, each of which would have to be examined and certified, and, if finally found insufficient, they should be returned to the protestants, without prejudice to the filing of a new petition to the same effect. In other words, by these obstructive methods a small minority |