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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 court sustained such objection. It is not of Arizona Company"; but, if either fails necessary to examine the assigned errors in so to do, the other reserves the right to fur- detail, as practically all of them are based nish more than half the amount needed, re- on the court's theory that no evidence of ceiving credit for the excess above his share any other transactions was admissible until so advanced, which shall bear interest at satisfactory proof of a copartnership had the rate of 1 per cent. per month. The agree been produced. In its rulings upon this subment next recites that, when the 80,000 ject the court was in error, The contract shares of stock shall have been issued in of March 1, 1899, was set out in full in the payment for the work done and material complaint and an accounting was demanded. furnished to the “King of Arizona Compa- Under the contract in question, a trust re ny,” said shares shall be distributed to the lationship was created, and, if anything of parties. in proportion to the amounts ad- value had been received by defendant, or in vanced by them respectively during the prog- his behalf, pursuant to this agreement, there ress of the work. The rest of the contract might, and probably would, arise a necesrelates to the salary of Blaisdell as manager, sity for an accounting with the right of S. to his powers as superintendent, and to the Morgan Smith, or his representative to de method whereby he is to spend money for mand it. It is true that the court found supplies.

that Blaisdell had received nothing under The answer denied all of the material al- the contract in question, but that was after legations of the complaint and pleaded the the rulings by which evidence on that subbar of the statutes-sections 337, 338, and ject was excluded. 339 of the Code of Civil Procedure.

[2] The court found that the cause of acFindings of facts and conclusions of law tion set out in the amended complaint was were all practically in favor of the defend- barred by the provisions of sections 337 and ant, following closely the averments of the 339 of the Code of Civil Procedure. It is conanswer. The court found that there was no ceded that the original complaint was filed on partnership between Smith and Blaisdell; July 20, 1903, although the record does not that pursuant to the contract of March 1, disclose the date. The complaint alleges that 1899, Smith and Blaisdell entered into an the contract was completed on July 21, 1899. agreement with the "King of Arizona Com- This is not denied. Hence, if the action was pany" to construct and equip its reduction begun on July 20, 1903, it is not barred. plant, and that their compensation was to Code Civ. Proc. § 343. be two-fifths of the stock of said corpora We find no other alleged errors requirtion; that defendant was not called upon ing attention. to furnish one-half of the cost of said reduc The order denying defendant's motion for tion plant and equipment; that defendant a new trial is reversed. did not violate any duties toward any copartnership nor did he have any money be We concur: SHAW, J.; SLOSS, J.; ANlonging to said copartnership under his con- GELLOTTI, J.; LORIGAN, J.; HENtrol; that neither the defendant nor his at. SHAW, J. torney received any stock from the "King of Arizona Company"; that S. Morgan Smith had not advanced any money for any co

(15 Cal. A. 358) partnership existing between him and de TITLE INS. & TRUST CO. et al. v. LUSK fendant, and that defendant, Hiram W.

et al. (Civ. 957.) Blaisdell, was not shown to have received (Court of Appeal, Second District, California. any money, thing of value, or property what

Feb. 11, 1911.) soever, either from the "King of Arizona Mining & Milling Company" or from tue 1. EVIDENCE (8 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 Tands 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 be presumed, under Street Law (St. 1903, c. contracts referred to and set out in plain- by the provisions of the Code of Civil Proce.

268) $ 6, requiring such actions to be governed tiff's amended complaint.

dure, that the judgment was entered by the For other cases see same topic and section NUMBER in Dec. Dlg. & Am. Dig. Key No. Series & Rep'r Indexes

clerk within 24 hours after rendition of the speedy, and adequate remedy at law is open to verdict as required by Code Civ. Proc. $ 664. petitioners.

[Ed. Note.--For other cases, see Evidence, [Ed. Note.-For other cases, see Mandamus, Cent. Dig. $ 105; Dec. Dig. $ 83.*]

Cent. Dig. 88 8-34; Dec. Dig. $ 3.*]
2. CONSTITUTIONAL LAW (8 106*) — VESTED 7. STATUTES (8 85*)-GENERAL AND SPECIAL

RIGHTS - REMEDIES - RIGHT TO DISCON LAWS-REGULATING CIVIL REMEDIES.
TINUE.

Nor is the act of 1909 (St. 1909, c. 684), re-
The right given to a city by Street Law i garding condemnation proceedings, in contra-
1903 (St. 1903, c. 268) 8.14, to discontinue con- vention of the Constitution, prohibiting special
demnation proceedings without prejudice at any legislation, as the procedure may not be said to
time before payment of compensation, is not a be special because it is peculiar to the character
vested right, and Street Law 1909 (St. 1909, c. of the action with reference to which it is pre-
684) $. 11, providing that proceedings to con- scribed.
demn lands then pending should be thereafter
continued under that law, and section 8, pro- Dig. & 85.*]

[Ed. Note.-For other cases, see Statutes, Dec. viding that condemnation proceedings may be abandoned up to the time of entry of the inter-8. EMINENT DOMAIN (8246*) – Right OP locutory judgment, are not invalid; such sec

PLAINTIFF TO ABANDON PROCEEDINGS tions merely relating to remedies which are

STATUTES. always within the control of the Legislature,

The right of a city to abandon condemnaprovided a reasonable remedy is still left. tion proceedings for street purposes is not af

(Ed. Note.- For other cases, see Constitution- fected by Code Civ. Proc. 581, subd. 2, aual Law, Dec. Dig. $ 106.*]

thorizing dismissal of actions by either party on

the written consent of the other, since Street 3. CONSTITUTIONAL LAW (8 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 ap

Only those can question the validity of a plicable 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. $8 638-643; Dec. Dig. $ 246.* ] al Law, Cent. Dig. 88 39, 40; Dec. Dig. $ 42.*] 4. CONSTITUTIONAL Law ($106*) — VESTED RIGHTS - REMEDIES RIGHT TO DISCON

Petition by the Title Insurance & Trust TINUE.

Company and others against R. M. Lusk Where a city, which under Act 1903 (St. and others for writ of mandate directing the 1903, c. 268) $ 14, had the right to discontinue city council to proceed to confirm, correct, or without prejudice proceedings to condemn land for streets at any time before payment of com- modify an assessment presented to them or pensation, had nine months after the passage of to order a new assessment. On demurrer to Act 1909 (St. 1909, c. 684) $ 8, changing the lim- the petition. Demurrer overruled. it for discontinuance to the time of entering interlocutory judgment, in which to discontinue, Thomas C. Ridgway and Hatch, Lloyd & but entered such judgment without so doing, it Hurst, for petitioners. John W. Shenk, City cannot subsequently claim that the change in Atty., and C. E. Haas, Deputy City Atty., the statute was an unreasonable impairment of its remedy, and hence an unconstitutional inter- for respondents. Ward Chapman, amicus ference with its vested rights.

curiæ.
[Ed. Note.-For other cases, see Constitution-
al Law, Dec. Dig. § 106.*]

ALLEN, P. J. It appears from the peti-
5. EMINENT DOMAIN (167*)-STREET WIDEN- tion and affidavit filed that heretofore, in
ING-STATUTES-EFFECT PENDING PROCEED-
INGS.

1907, under the provisions of the street im-
Act April 21, 1909 (St. 1909, c. 684) $ 8. provement act of 1903 (St. 1903, c. 268), the
amending Street Law 1903 ($t. 1903, c. 268) $ city council of Los Angeles duly adopted an
14, by providing that proceedings for the con-
demnation of land for street purposes could be ordinance declaring its intention to order the
abandoned without prejudice only before entry widening of Eighth street, between Main
of the interlocutory judgment; instead of at any street and Central avenue; that said ordi-
under the express provisions of section 11 of the nance further designated the land necessary
act of 1909, to proceedings pending when the and convenient to be taken for such improve-
amendment took effect.

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.*]

the property benefited by such improvement; 6. MANDAMUS ($ 3*) – PUBLIC OFFICERS that this ordinance was approved and pubSTREET IMPROVEMENTS.

Under Code Civ. Proc. $ 1085, providing lished, and was followed by a suusequent that a writ of mandate may be issued to a cor ordinance ordering the improvement to be poration, board, etc., to compel performance of made and directing the city attorney to bring an act which the law specially enjoins as a duty an action in the name of the city of Los resulting from an office, trust, or station, such mandate may issue to a city council to compel Angeles for the condemnation of the propit to proceed as expressly required by Street erty described in said ordinance necessary to Law 1903 (St. 1903, c. 268) $ 19, to pass upon be taken for the improvement mentioned. and determine, as in their discretion and judg: The action was instituted by said city atment is proper, the questions involved in the protests as to a street assessment and the orders torney on July 3, 1907, against those whose with reference to its confirmation or modifica- lands were to be taken for such improvetion, or the ordering of a new assessment in ment. It is not shown at what date the trial lieu of the original assessment filed, such action on the part of the city council being a was had or verdict returned, but it does duty resulting from an oflice and no plain, Wappear that on January 3, 1910, an interlocu

H

tory judgment was entered in favor of the upon oral argument that section 11 is violaseveral defendants for the sums determined tive of the Constitution in that it impairs a as damages which should be awarded the right once vested. This section affects a various defendants by reason of the taking remedy as distinguished from a right. "Remof the land for the contemplated improveedies must always be under the control of ment.

the Legislature" (Cooley, Const. Lim. P. [1] It will be presumed, in view of section 381); and where a reasonable remedy is pro6 of the street law, to the effect that actions vided it is immaterial that it alters one prefor the condemnation of property brought viously existing. thereunder shall in all respects be subject to [3] No one may question the constitutionand governed by such provisions of the Code ality of a legislative act unless its enforceof Civil Procedure now existing or that may ment would work an injury to the complainhereafter be adopted, as may be applicable ing party. thereto, except in the particulars otherwise [4] Whatever may be the effect which provided for in this act, that the judgment should be given this section in cases where was entered by the clerk within 24 hours the remedy is shown to be unreasonably imafter the rendition of the verdict, as provid-paired, the city in the case at bar is not in ed by section 664 of the Code of Civil Pro- position to insist upon its unreasonable charcedure. It further appears that after the acter, for it is apparent from the record that entry of said interlocutory judgment, to wit, nearly nine months elapsed between the pason the 29th day of July, 1910, a diagram of sage of the act of 1909 and the entry of the said improvement and of the property with interlocutory judgment, during all of which in the assessment district described in the or- time it had notice of the limitation upon the dinance with the assessment, was filed with remedy of abandonment and dismissal imthe clerk of the city council of the city of Los posed by section 14. It cannot, therefore, be Angeles; that thereafter protests were filed said that this section unreasonably impaired against such assessment on the ground that the remedy in the case under consideration, the same was inequitable; that upon the hear- and this case is brought within the rule of ing of such protests, to wit, on the 15th day of Terry v. Anderson, 95 U. S. 628, 24 L. Ed. November, 1910, the same were sustained by 365, and the other cases cited in Tuttle v. the city council; but that the city council Block, 104 Cal. 449, 38 Pac. 109. have ever since failed and refused and now [5] It follows, then, that all proceedings fail and refuse to either confirm, modify, or connected with the improvement by the correct said assessment, or to order a new council originally ordered were, after April assessment, or to take any of the proceedings 21, 1909, controlled by the act of that date, specified in section 19 of the act of 1903 (St. which must be construed as limiting the 1903, c. 268), justifying their action upon right of dismissal and abandonment to the the claim that they desire to abandon the time of the entry of the interlocutory judgproceedings, and pursuant thereto. have di- ment. This being established, the city counrected that an ordinance be prepared aban-cil possessed no right, even though the prodoning the proceedings and directing that ceedings were instituted under the act of said ordinance be presented for passage. 1903, to abandon the same or direct a disRespondents interpose a general demurrer to missal of the condemnation or other proceedthe petition.

ings, after it had procured to be entered the [2] The proceedings set forth in the peti- interlocutory judgment. tion 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 ing upon and determining, as in their discretime prior to the payment of the compensation and judgment is proper, the questions tion awarded to the defendants. Section 8 involved in the protests as to the assessment of the act of 1909, approved April 21, 1909 and the orders with reference to its confirma(St. 1909, c. 684), provides that the city coun- tion or modification, or the ordering of a new cil may at any time prior to the entry of assessment in lieu of the original assessment interlocutory judgment abandon the proceed filed. We are of opinion that such action ings by ordinance and cause said action to upon the part of the city council is a duty be dismissed without prejudice. Section 11 resulting from an office, and that under secof the act of 1909 provides that any pro- tion 1085 of the Code of Civil Procedure a ceeding or action for any improvement, as mandate may be issued to compel the perprovided for in the act, already commenced formance of an act which the law specially and pending at the time the act takes effect, enjoins as a duty resulting from an office; under and by virtue of any ordinance of in- and that no plain, speedy, and adequate remtention theretofore passed, shall, from the edy in the ordinary course of law is open to stage of any such proceeding or action al- the petitioners. ready commenced and in progress at the time [7] We are not in sympathy with the conof the act taking effect, be continued under tention of respondents that the act of 1909 is the provisions of that act. It was insisted in contravention of the Constitution, which

prohibits special legislation. The procedure initiative petition after the expiration of a cermay not be said to be special because it is tain number of days, in case the petition is peculiar to the character of the action with to invoke a referendum

with reference to an

found insufficient, is inapplicable to a petition reference to which it is prescribed. Clute ordinance already passed, notwithstanding secv. Turner, 157 Cal. 73, 106 Pac. 240; People tion 198b, providing therefor, declares that the v. Henshaw, 76 Cal. 436, 18 Pac. 413; Hell- petition shall be in all respects, etc., in ac

cordance with the provisions of section 198a, man v. Shoulters, 114 Cal. 136, 44 Pac. 915, and shall be examined and certified by the 45 Pac. 1057.

clerk in all respects as therein provided, since [8] Nor are we of the opinion that subsec- such provision refers solely to the form and tion 2 of section 581 of the Code of Civil substance and certification of the original petiProcedure in any wise affects the question [Ed. Note. For other cases, see Municipal here involved. The street law by express Corporations, Dec. Dig. $ 108.*] terms limits the control of the provisions of 2. MUNICIPAL CORPORATIONS ($ 108*)-CITY the Code of Civil Procedure to such cases as CHARTER-REFERENDUM PETITION - INSUF

FICIENCY. are not specially provided for in the act, and

Under City Charter of Los Angeles (Laws we find in the act of 1909 an express provi- 1903, c. 6) & 198b, providing for a referendum sion, which limits the right of dismissal in with reference to ordinances passed by the city condemnation proceedings, different from the council on a petition executed in the prescribed

manner, where a referendum petition is not right accorded the court in the dismissal of properly executed within 30 days after the final actions under section 581. We are of opin- passage of the ordinance sought to be referred ion, therefore, that the street act and its the ordinance becomes effective, and is not subvarious provisions with reference to the pro

ject to further reference. cedure connected with the condemnation of Corporations, Dec. Dig. $ 108.*]

[Ed. Note. For other cases, see Municipal property by municipalities for street purposes is constitutional, and that under such

Appeal from Superior Court, Los Angeles act no dismissal of the action or abandon- County; N. P. Conrey, Judge. ment of the proceedings could be had after

Mandamus, on petition of G. W. Rushton the entry of the interlocutory judgment; and others, against Lorin A. Handley, subthat the petition here presented presents stituted for Harry J. Lelande, City Clerk of facts sufficient to entitle. petitioners to a Los Angeles. From a judgment discharging writ directing the city council to proceed and an alternative writ, relators appeal. Afconfirm, correct, or modify the assessment

firmed. presented to them, or order a new assess Milton K. Young, and John I. Stafford, for ment, as in their judgment is proper in the appellants. John W. Shenk, City Atty., and premises.

Emmet H. Wilson, Chief Deputy, for respondWe do not desire to be understood as pass-ent. ing upon any questions sought to be raised as to the regularity of the proceedings before ALLEN, P. J. [1] The petition, the basis the city council anterior to the entry of the for the issuance of the alternative writ, disinterlocutory judgment. We have heretofore closes that the freeholders' charter of Los by an order denied the right of those affect- Angeles city contains certain provisions with ed by the improvement to intervene and reference to the initiative and referendum; raise such questions in this proceeding, upon the first thereof having reference to the inthe theory that, if any irregularities in the itiative is found in section 198a (Laws 1903, proceedings connected with the ordinances or c. 6), which provides: “The signatures to orders as affecting the jurisdiction of the the petition need not all be appended to one city council to order the improvement in fact paper, but each signer shall add to his sigexist, a remedy full and complete may be nature his place of residence, giving the had by appropriate equitable action in the street and number. One of the signers of superior court, and that this proceeding is each such paper shall make oath before an inappropriate for the determination of such officer competent to administer oaths, that questions.

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.

the genuine signature of the person whose

name purports to be thereunto subscribed. We concur: SHAW, J.; JAMES, J.

Within ten days from the date of filing such

petition the city clerk shall examine and (15 Cal. App. 448)

from the great register ascertain whether or RUSHTON et al. v. HANDLEY, City Clerk of not said petition is signed by the requisite City of Los Angeles. (Civ. 929.) number of qualified electors,

and (Court of Appeal, Second District, California. he shall attach to said petition his certificate Feb. 20, 1911.)

showing the result of said examination. If, 1. MUNICIPAL CORPORATIONS (108*)-CHAR- by the clerk's certificate, the petition is TER-CONSTRUCTION-INITIATIVE AND REF- shown to be insufficient, it may be amended ERENDUM-PETITION.

City Charter of Los Angeles (Laws 1903, within ten days from the date of such cerc. 6) 198a, permitting amendments to antificate. 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 The proper construction to be given secthirty days a petition signed by electors of tion 198b, and with reference to that portion the city equal in number to at least seven thereof which provides, "said petition shall per cent of the entire vote cast for all candi- be in all respects in accordance with the prodates for mayor at the last preceding gen- visions of said section 198a, * * * and eral election at which a mayor was elected, be examined and certified by the clerk in all protesting against the passage of such ordi- respects as is therein provided," presents the nance, be presented to the council, the same question for determination upon this appeal. shall thereupon be suspended from going in- it is insisted by appellants that this lastto operation, and it shall be the duty of the quoted portion of section 198b authorizes the council to reconsider such ordinance, and if amendment of a petition under that section the same is not entirely repealed, the council in the manner and to the extent provided by shall submit the ordinance, as is provided in section 198a. We are of opinion that such section 198a of this charter, to the vote of was not the intent of the framers of the the electors of the city.

Said peti- charter, or of the electors who adopted the tion shall be in all respects in accordance with same; that the words "said petition shall be the provisions of said section 198a, except as in all respects,” etc., "and be examined and to the percentage of signers, and be examin- certified," etc., refer solely to the original ed and certified by the clerk in all respects petition provided for by section 198a, and as is therein provided."

refer solely to the form, substance, and cerFurther that on April 22, 1910, a certain tification of such original petition; that it is ordinance, having theretofore been passed obvious that that portion of section 198a perby the city council, was approved by the mitting amendments after 30 days cannot mayor. That on May 20, 1910, plaintiff and and does not apply to a petition which seeks others filed with the defendant, city clerk of to invoke the referendum. Los Angeles, certain separate papers, the ag [2] This is apparent from the provision of gregate thereof constituting a petition, pro- the section generally, to the effect that the testing against the passage of such ordi- ordinance passed shall not go into effect benance; that such petition in the aggregate fore 30 days, and that 30 days is the time contained the percentage of electors required given within which the electors shall file their by section 198b, but the separate papers, or protests, and upon the filing of which pro. many of them, so filed as a petition, were tests in the manner and form prescribed, not verified by one of the signers of such and in no other event, is the ordinance susseparate paper; that by reason thereof the pended from operation beyond the 30 days. clerk, on May 26, 1910, certified to the coun- It is plain that, if the requisite petition concil the insufficiency of the petition. There- stituting the protests be not filed within 30 after, and after the lapse of more than 30 days, the ordinance becomes effective, and, days from the approval of the ordinance, being so effective, the referendum no longer plaintiffs and others who had originally sign- applies to it, and if the elector desires reed said papers asked to amend the same by lief from its operation such relief must be adding thereto the name of the party verify- worked out through the initiative section being each separate paper, so as to make such fore referred to by a repeal of such ordiparty a petitioner in the separate paper so nance, brought about by the manner therein by him verified. This was denied, and there- provided. Otherwise an insignificant numafter, on June 4, 1910, plaintiffs presented to ber of voters might present a protest to the the clerk other papers containing the names passage of an ordinance on the twenty-ninth of electors, each of which papers was veri-day after its approval, and the insufficient fied by a signer thereof; but upon examina- character thereof being apparent, they could tion the clerk found that these signatures then file other and additional protests, each were in duplicate, that many of the persons of which would have to be examined and verifying what was termed the "amended pa- certified, and, if finally found insufficient, pers" were signers upon the original papers they should be returned to the protestants, on file constituting the first petition, and for without prejudice to the filing of a new petithat reason the clerk declared the amended tion to the same effect. In other words, by petition insufficient. Plaintiffs therefore these obstructive methods a small minority

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