on their merits. As we find them not well taken, the question whether or not they would invalidate the proceeding becomes immaterial. [10] Further objection is made on the ground that the commission did not find separately the value of each separate parcel of the property of the water company. Section 47 requires the commission to "proceed to fix and determine the just compensation * in the manner and in accordance with the provisions of section 70." Section 70 provides that it "shall make and file its findings of fact in writing upon all matters concerning which evidence shall have been introduced before it which in its judgment have any bearing on the value of the property." Evidence was given showing separately the value of the respective parcels. Section 47 also provides that after the filing of the petition, and before payment of the compensation fixed, the commission may be required to find the amount of an alleged unreasonable depreciation in value, to be deducted from the compensation allowed; also that it may be called on to fix the amount the owner may have had to expend to preserve the property after the final judgment of condemnation and before payment, to the end that the owner may be reimbursed such amount. In fixing these amounts it might be found convenient to have the parcels separately valued. But, however, this may be, we do not think the failure to make such detailed findings causes a loss of jurisdiction or makes the proceeding void. It is admitted that the commission acquired full jurisdiction. When once it is made to appear that a court of limited jurisdiction has acquired jurisdiction of the parties and of the subjectmatter, the same presumptions as to subsequent proceedings apply as with respect to courts of general jurisdiction, and subsequent irregularities do not make its judgments void. Van Fleet on Collateral Attack, § 806; Long v. Burnett, 13 Iowa, 28, 81 Am. Dec. 420. In such a case "jurisdiction cannot be lost by the erroneous exercise of the power conferred." Brown on Jur. § 25. Section 70 leaves it to the discretion of the commission to determine whether or not it will make detailed findings. It is not declared to be mandatory. At most, the making of a general finding is but an irregularity. If the parties have any remedy when injured by such failure, it is by mandamus, not certiorari. It does not go to the jurisdiction. If the undisputed evidence had shown that the property had a special additional value, as, for example, that by reason of the situation and topography of a parcel of the land a quantity of water could be annually caught, stored thereon, and sold at a profit, and that the commission had refused to allow such value, as a part of the compensation fixed, it may be conceded that this would have been a deprivation of property without due process of law, a disregard of the petitioner's right to just compensation, and therefore a violation of both the federal and state Constitutions. Appleby v. Buffalo, 221 U. S. 524, 31 Sup. Ct. 699, 55 L. Ed. 838; Chicago, etc., Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979; Davidson v. New Orleans, 90 U. S. 102, 24 L. Ed. 616; Backus v. Fort St., etc., Co., 169 U. S. 557, 18 Sup. Ct. 445, 42 L. Ed. 853; McGovern v. New York, 229 U. S. 363, 33 Sup. Ct. 876, 57 L. Ed. 1228, 46 L. R. A. (N. S.) 391. We do not find that the commission did thus refuse to allow an undisputed value, and therefore the argument founded on the above-stated proposition must fall. With respect to the contention that the commission did not allow the value of the water in storage at the time of the award, it is sufficient to say that our attention has not been directed to any evidence of such value, nor of the quantity in storage. It is difficult to see how it could be valued, under the circumstances. It was the store for daily use, and the quantity would change from day to day. The time when the water district would take possession of the plant could not be foretold. It seems difficult to fix such compensation except by finding the value per gallon and directing a measurement at the time of the transfer of possession. But this question is not now before us, and we express no opinion regarding it. The proceedings and determination of the Railroad Commission are affirmed. A contract for the purchase of shares of stock in a bank which acted as the seller's agent in the transaction provided that upon payment to such agent payment would be deemed sufficiently made, and when payment was due the buyer delivered to the bank, payable to it or bearer, a certified check for the price, which on the same day was delivered by the bank without indorsement to the seller. Held, in an action on the check, that it was given in payment, and not in tender of payment, and that the maker was liable thereon because he became and payment, and was entitled to compel dethe owner of the shares upon their identification livery of a certificate therefor; a "certificate of stock" not being the stock itself, but merely as executrix has demanded payment thereof. evidence of its title. PARTIES TO CHECK The defendants were required to interplead herein for the determination of their adverse claims in the premises. A judgment having been entered in favor of the executrix, the defendant Planz has appealed therefrom and also from an order denying his motion for a new trial. On July 21, 1908, an agreement in writing was entered into between C. L. Conner and one H. A. Blodget, whereby, in consideration of the sum of $5 in hand paid, Conner agreed to sell and deliver to Blodget, his nominee or assigns, 50 shares of the capital stock of the [Ed. Note. For other cases, see Payment, Cent. Dig. §§ 87, 88; Dec. Dig. 22. For other definitions, see Words and Phrases, First and Second Series, Certificate of Stock.] 2. EVIDENCE 459 PAROL EVIDENCE. Where, under a contract of sale of stock, a bank is agent for the seller to receive payment, and a certified check for the price, payable to it or bearer, is delivered to it by the buyer and received by it as such payment, parol evidence is inadmissible in an action on the check to show that the word "bearer" was left therein by mistake and that the check was intended for the bank itself and not for the seller. [Ed. Note. For other cases, see Evidence, Kern Valley Bank, a corporation, upon the Cent. Dig. §§ 1722, 1906-1910, 2109-2114; payment of the sum of $3,799.66 on or before Dec. Dig. 459.] July 21, 1909. It was agreed that upon pay3. CORPORATIONS ment to Conner on or before July 21, 1909, of the sum of $281.45, the time for payment of said larger sum should thereby be extended to, and the delivery of said stock extended to, July 21, 1910. It was agreed: 121 TRANSFER OF SHARES-ACTIONS-EVIDENCE. In such a case, evidence of the bank's delivery of the check to the seller is admissible. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 504, 505; Dec. Dig. 121.] 4. APPEAL AND ERROR 1050-PREJUDICIAL ERROR. The admission of such evidence, if erroneous for immateriality, is harmless. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.] Appeal from Superior Court, Kern County; J. W. Mahon, Judge. Action by the Bank of Bakersfield against Sarah L. Conner, as executrix of the last will of C. L. Conner, deceased, and G. J. Planz, to determine their rights to a sum of money deposited with it, and for which the executrix held Planz's certified check. Defendants were required to interplead, and, from a judgment for the executrix and an order denying Planz's motion for a new trial, he appeals. Affirmed. E. L. Foster, of Bakersfield, for appellant. C. C. Cowgill, of Sonoma, and Peter A. Breen, of San Francisco, for respondent. "That payment shall be deemed to be sufficiently made to said C. L. Conner by payment to the Kern Valley Bank for account of C. L. Conner of either of the sums above specified. And the said fifty (50) shares of said stock of the said Kern Valley Bank shall, upon payment made as hereinbefore provided, be delivered, on demand, to the said H. A. Blodget, his nominee or assignee, together with all dividends that may be declared and paid on said shares of stock during the life of this agreement." On July 21, 1909, Blodget paid the sum required for extending the time of final payment to July 21, 1910, and on July 19, 1910, sold, assigned, and transferred to G. J. Planz "all my right, title and interest in and to the within and foregoing contract and the capital stock of the Kern Valley Bank, viz., fifty (50) shares thereof, therein described." Thereafter Planz delivered his certified check as hereinabove stated. [1] The court found that said check was paid to the Kern Valley Bank for the account of C. L. Conner and was accepted by that CONREY, P. J. On July 21, 1910, the de-bank for the account of C. L. Conner as and fendant G. J. Planz drew his check upon the in full payment of the purchase price of said Bank of Bakersfield for the sum of $3,799.66 50 shares of stock. Under his specifications and caused it to be certified by that bank. of insufficiency of the evidence to justify the The check was payable to the Kern Valley findings, appellant claims that the evidence Bank or bearer. Immediately thereafter defendant Planz delivered the check to the does not show his delivery of the check for Kern Valley Bank, and on the same day the the account of Conner or as payment on the cashier of that bank delivered the check, contract, but claims that it was merely a without indorsement, to C. L. Conner. Con- of the shares of stock. In our opinion, the tender of payment conditioned upon delivery ner died at some time between September, 1910, and March, 1911, and the check in evidence fully justifies the finding as made. In his testimony defendant Planz himself question came into the possession of the defendant Sarah L. Conner as executrix of his last will and testament. The plaintiff, the * Bank of Bakersfield, filed its complaint here- 66. in showing that it holds and has in its possession money deposited with it by defendant He further testified that on July 23, 1910, Planz sufficient to pay said check; but also he demanded of Conner a transfer of the 50 that the defendant Planz gave notice and in shares of stock, and that Conner refused this struction to the plaintiff to refuse payment demand and said that, if Planz would deliv of the check, and that the defendant Connerler back to the Kern Valley Bank the receipt For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes said: * "On July 21, 1910, under the contract, * I gave the Kern Valley Bank $3,799.I paid it with my certified check on the Bank of Bakersfield." which that bank gave him, they would give | case as made by the record. He refers us to him the money back or the check. On Au- authorities holding that refusal to perform gust 6, 1910, Planz filed a complaint in the superior court of Kern county against Conner and the Kern Valley Bank to enforce his demand for delivery to Planz of the 50 shares of stock to which he claimed to be entitled under the agreement with Blodget which had been assigned to him. In that complaint, verified under his oath, the plaintiff therein said that he had made the before-mentioned payment of $3,799.66 to the Kern Valley Bank for the account of C. L. Conner, and that "the said Kern Valley Bank, a corporation, received the sum of money for the account of C. L. Conner and now has the said sum of money in its possession and under its control for the account of C. L. Conner." The same statement was repeated in an amended complaint. To that complaint a demurrer was filed, and it appears that the action was pending without any other proceedings having been had therein at the time of the trial of the case now before us. a contract constitutes a rescission. Assuming that in some instances this principle would be applicable, we have here a case in which the purchaser, even though he had a right to claim a rescission, elected to continue his demand for performance of the contract and bring an action for that purpose. Therefore appellant is unable to recall the payment made by him, even if, as he contends, under the terms of the contract the obligation of the seller to deliver the goods and of the buyer to pay the price were concurrent conditions. The shares of stock were identified the price agreed upon was paid, and thereby Planz became the real owner of the shares. He was in a position which entitled him to compel the delivery to him of a certificate of stock. Certificates of corporation stock, it should be remembered, are not the shares, but are merely evidence of title. [3, 4] Exception is taken to the court's ruling in allowing the cashier of the Kern Valley Bank to testify that on the same day when the certified check was received at that bank he delivered it to C. L. Conner. If this evidence was immaterial, the only reason would be that payment had been completed when the check came into the hands of the bank as Conner's agent. We see no error in the ruling, and at all events it would be without prejudice to any right of appellant. The judgment and order are affirmed. [2] Defendant Planz in his answer states that the certified check was by mistake made out to bearer. At the trial he was asked to state why the word "bearer" was left on the check, or whether he intended that it should be left on the check at the time when he made it. The court sustained an objection that the question was irrelevant, incompetent, and immaterial and an attempt to vary the terms of the written instrument by parol in the absence of any appropriate pleadings for reforming the instrument. It is now urged on this appeal that this ruling was erroneous, because it prevented appellant from showing that he was paying the money to the Kern Valley Bank and to no other person, and from showing that he had intended to strike out by drawing a line through the word "bearer." We think that the ruling was correct. Under the contract the Kern Valley Bank was agent of Conner for the A taxpayer's petition against the sheriff of purpose of receiving payment of the sum spec- a county for a writ of mandamus to compel the ified in the check. It is not claimed that sheriff's payment into the county treasury of the bank was aware of any mistake in the all fees collected by him as sheriff during three or four months, notwithstanding its insufficiencheck or informed that it did not fully ex-cy as to mileage, etc., claimed by the sheriff unpress the intention of the maker. Whether made payable to the order of the Kern Valley Bank or made payable to that bank or bearer, it was equally capable of being received and used for the purposes of the transaction. The specifications of insufficiency of the evidence, although not in the usual form and in some instances perhaps not legally sufficient, will be considered as sufficient to raise the only other important question in the case, which is whether the evidence justified the court in finding that Conner was the owner of the check, and that it is now the property of the defendant Sarah L. Conner as executrix, etc. On this phase of the case, it seems to us that appellant is relying upon propositions which are not applicable to the KEITH v. HAMMEL, Sheriff. (Civ. 1578.) (District Court of Appeal, Second District, California. Dec. 7, 1915.) 1. MANDAMUS 154-SUFFICIENCY OF PETITION-FEES OF COUNTY OFFICER. der the county charter and Pol. Code, § 4290, yet in view of other fees which the sheriff must collect and pay into the county treasury under sections 4300b and 4300c and its allegation that the sheriff had collected and appropriated to his own use $3,000 in fees belonging to the county, was good as against a general demurrer. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 296-316; Dec. Dig. 154.] ER-STATUTE. Code Civ. Proc. § 526a, permits a taxpayer's action against public officers to restrain certain described illegal expenditures of county funds, not to affect any right of action in favor of a county or any public officer; Pol. Code, § 4041, subd. 16, gives boards of supervisors juriswhich the county is a party; Los Angeles Coundiction to direct the prosecution of all suits in ty Charter (St. 1913, p. 1490), § 21, declares that the county council shall have exclusive charge of all civil actions in which the county or its officers are concerned as parties, and section 10 gives the board of supervisors the jurisdiction granted by the laws of the state. Held, that any right of action against the sheriff to compel him to pay into the county treasury fees collected by him during a certain time was a right of action in the county to be prosecuted by it as a party plaintiff, and that a taxpayer could not maintain an action or proceeding without showing that the county officers controlling matters of county litigation had refused to commence or prosecute such action. [Ed. Note. For other cases, see Sheriffs and Constables, Cent. Dig. § 98; Dec. Dig. 71.] Appeal from Superior Court, Los Angeles County; Frank G. Finlayson, Judge. Mandamus by D. E. Keith against W. A. Hammel, Sheriff of Los Angeles County. Judgment for defendant, and petitioner appeals. Affirmed. William H. Fuller, of Los Angeles, for appellant. Leon F. Moss, of Los Angeles, for respondent. CONREY, P. J. Mandamus. The petitioner, a resident property owner and taxpayer in the county of Los Angeles, filed his petition in the superior court against the sheriff of Los Angeles county for a writ of mandamus to compel the respondent to pay into the county treasury all fees collected by him as such sheriff between the 2d day of June, 1913, and the 31st day of October, 1913, for the performance of official duties pertaining to that office. A demurrer to the petition for want of facts suflicient to constitute any ground for the relief demanded was sustained, and judgment was entered in favor of respondent. From that judgment the petitioner appeals. Two principal objections among those relied upon by the respondent will be considered. These are: First, upon the merits, that the facts alleged do not show that the sheriff has received and retained any fees which he is under obligation to pay over to the county. Second, respondent claims that petitioner has not stated facts sufficient to establish his right to maintain the action, even though the demanded right exists in favor of the county. [1] The petition is so framed as to indicate that the pleader was intending to enforce the payment to the county of mileage and other compensation claimed by the sheriff under the charter of Los Angeles county and section 4290 of the Political Code. The claim of the sheriff that he was entitled to retain such moneys for his own use was determined in his favor on appeal to this court in Los Angeles County v. Hammel, 26 Cal. App. 580, 147 Pac. 983. Appellant now concedes the points which were involved in that appeal, but he contends that since there are other fees provided by law which the sheriff of Los Angeles county must collect and pay into the county treasury (Pol. Code, §§ 4300b, 4300c), the petition herein is nevertheless broad enough to include those fees. Treating many of his allegations as surplusage irrelevant to his real case, he now says that the case includes and was intended to include all moneys collected by the sheriff in his official capacity. The petition states that the respondent as sheriff, between the dates specified, "collected and received and appropriated to his own use, the sum of $3,000 as fees belonging to Los Angeles county for the performance of his services as sheriff of Los Angeles county during said time." This appears to be sufficient, and the allegation is good as against a general demurrer. [2] The law concerning the right of a taxpayer to maintain actions and proceedings to enforce public rights and protect public interests, has been a subject of discussion in many decisions, but is also to some extent affected by statutory declaration. Section 526a, Code of Civil Procedure, provides for the maintenance of a taxpayer's action against public officers to obtain a judgment restraining and preventing certain described illegal expenditures, etc., of county or municipal funds. It also says: "This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer.' The charter of Los Angeles county, in section 21 thereof (Stats. 1913, p. 1490), declares that: "The county counsel * shall have exclusive charge and control of all civil actions and proceedings in which the county, or any officer thereof, is concerned or is a party." Section 10 of the charter states that the board of supervisors shall have all the jurisdiction and power "which are now or which may hereafter be granted by the Constitution and laws of the state of California, or by this charter." Under section 4041 of the Political Code, subdivision 16, boards of supervisors are given jurisdiction and power to direct and control the prosecution and defense of all suits to which the county is a party. The general effect of these provisions of charter and statute seems to be, not only that the conduct of actions in which the county is a party is committed to the charge and control of public officers, but it further appears to be the intention (in harmony with long-established principles) that the county shall be a party to actions and proceedings wherein the county "is concerned." From the many decisions of the courts of this and other states dealing with this subject, we derive the principle that in the conduct of the ordinary business of a county or city, where the care and protection of the rights of the corporation have been committed to public officers, the primary right goes with the duty belonging to those officers to control the ordinary business of the corporation without the interference of private citizens, even though they be taxpayers. The exceptions which have been permitted usually arise in those situations where an officer is threatening to tained." Then, after further discussion and decision that there was no cause of action stated, the opinion closes as follows: that In the case at bar we are not called upon to consider whether the officers of Los Angeles county are exercising a wise discretion by refusing to commence an action against the sheriff to recover fees unlawfully retain act in excess of his authority, or refuses to private citizens to maintain actions concerning perform an official duty, and there is no municipal affairs-which right is founded to a other officer or official body empowered to any other proper party plaintiff. And the prop great extent upon necessity, and the want of act on behalf of the public or of the cor- osition that it was a duty enjoined upon said poration, to enforce their rights in the mat-trustees to bring such an action cannot be mainter, or where it appears that the officers empowered to act refuse to perform their duty in that respect. Instances which illustrate the subject may be given, such as Hyatt v. Allen, 54 Cal. 353, mandamus by a taxpayer the trustees now in office are not exercising a "It cannot be rightfully said, within an assessment district to compel coun-wise discretion by refusing, at the present time, ty assessor to assess property subject to asto commence unnecessary and hazardous litigasessment; Eby v. School Trustees, 87 Cal. 166, tion." 25 Pac. 240, mandamus to compel board of school trustees to comply with instructions of electors as to location of schoolhouse site; Frederick v. City of San Luis Obispo, 118 Cal. 391, 50 Pac. 661, mandamus to require board of trustees to call an election on ques-ed by him, since there is no intimation that tion of disincorporation of the city. All of these cases had to do with extraordinary situations, and not with the conduct of the ordinary business of the corporation. In Maxwell v. Board of Supervisors, 53 Cal. 389, petitioner was permitted to maintain a proceeding for writ of review to the board of supervisors to review its action in entering into a contract for printing. This related to a matter within the ordinary scope of the business of the corporation, but the recalcitrant body was the controlling board of officers of the county, and the taxpayer's right in such a case is one arising out of the necessity of the situation and is recognized for that reason. The principle which should control is very fully stated in Dunn v. Long Beach Land & Water Co., 114 Cal. 605, 46 Pac. 607, wherein a resident of and property owner and taxpayer in the city of Long Beach sought to have canceled a certain judgment affecting the title to a street and to quiet the title of the city to the street. It was held, not only that the complaint did not state facts sufficient to constitute a cause of action, but also that the facts were not sufficient to justify the plaintiff in bringing the action. The court said: they have refused or neglected anything in "The rule is that the municipality, through its governing body, has control of the property and general supervision over the ordinary business of the corporation; and there would be utter confusion in such matters if every citizen and taxpayer had the general right to control the judgment of such body or usurp the office. Where the thing in question is within the discretion of such body to do or not to do, the general rule is that then neither by mandamus, quo warranto, or other judicial proceeding, can either the state or a private citizen question the action or nonaction of such body; nor in such cases can a private citizen rightfully undertake to do that which he thinks such body ought to do. It is only where performance of the thing request-1. ed is enjoined as a duty upon said governing body that such performance can be compelled, or that a private citizen can step into the place of such body and himself perform it. If, therefore, in the case at bar it was not a duty enjoined upon the board of trustees of the city of Long Beach to bring an action similar to this present action brought by appellant, then we need not discuss the general subject of the right of We concur: JAMES, J.; SHAW, J. NOLTE v. NOLTE. (Civ. 1539.) APPEAL AND ERROR 713-CONSIDERA- Under Code Civ. Proc. § 951, providing that on appeal from an order the appellant must furnish the court with a copy of the notice of appeal and of the papers used on the hearing below, where an affidavit came into the transcript under certificate describing it as part of the judgment roll, which it was not, nor a paper used in connection with the order from |
