dealing with a similar constitutional provision to ours, and with similar situation to that presented in these cases, through the attempted legislation identical in effect to that of the statute of 1921, says:

"A majority of the voters answered by ballot 'yes.' Now, the legislature attempts by this act, without any clear intimation thereof in its title, to authorize these bonds sold at a discount-below par-which will net to the purchaser seven per cent per annum on his investment. The interest on the bond is a part of the bond. If the legislature can increase the rate of interest, or sell the bonds below par after the voters authorized a sale at par and at five per cent interest, then they can take away entirely from the majority of the voters the right to have the bonds issued. The constitution gives the legislature the right to fix the mode and manner of getting the will of the qualified voters on a bond issue; and it gives to the majority of the qualified voters at the election the right to authorize the issuance of the bonds by the board of revenue. The voters having fixed by ballot the amount of the bond issue, the maximum rate of interest, and under a law stating that they must not be sold below their face. value, it is then beyond the power of the legislature to authorize a higher rate of interest thereon or a sale of these bonds below par."

In the case of Skinner v. City of Santa Rosa, 107 Cal. 464, [29 L. R. A. 512, 40 Pac. 742], which was a case wherein the officials of the city of Santa Rosa had undertaken to change the amount of interest to be paid upon certain municipal bonds of said city, after a vote of its electors approving the issue of such bonds, this court held that the provision for the payment of the added interest upon said bonds would in effect increase the amount of the indebtedness which the electors had by their votes approved, and would to that extent be a violation of the constitutional inhibition. And the court goes on to say:

"If the terms and conditions submitted to the electors may be departed from, and such election held to authorize the issuance of bonds under other terms and conditions, a door will be opened authorizing the common council to submit a proposition so favorable as to secure beyond question a favorable vote, and then change the conditions

as to rate of interest and otherwise, even without any fraudulent purpose or intent, so that, if again submitted, an overwhelming defeat would result. . . . In the case at bar, where the question arises before the bonds have been delivered, we hold that the city has no power to issue them in a form which does not substantially comply with the terms stated in the ordinance of submission and notice of election, and with the statute under which the proceedings were had."

It is not intended by anything said in this opinion to suggest or intimate that there was any actual fraudulent intent on the part of the officials of the city of Los Angeles in seeking to take advantage of the terms of the statute of 1921 by disposing of these bond issues at less than their par value. Nevertheless, so to do either with or without the sanction of said act would be to accomplish a purpose directly violative of one of the essential conditions upon which the constitutional approval by the electors of said city of these bond issues was obtained, and in that sense a fraud would be wrought by permitting that condition to be violated by the sale of these bonds below par. For this reason we are constrained to hold that the authorization attempted to be conferred upon said city of Los Angeles to dispose of the unsold portion of these bond issues for less than their par value by the act of 1921 is invalid, and hence that the plaintiffs and intervener in these actions were entitled to an injunction restraining such attempted or threatened sales.

The judgment is reversed.

Waste, J., Wilbur, J., Sloane, J., Shurtleff, J., and Lennon, J., concurred.

SHAW, C. J., Concurring.-I concur in the foregoing opinion.

I wish to add, however, that, in my opinion, the vote of the people, by which the city was authorized to sell the bonds at a price not less than par, constituted a part, and a material part, of the contract evidenced by the bonds, as stated in Merchants Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, [77 Pac. 937]. The city is the nominal obligor or promisor on the bonds. It has no authority to

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make the promise and issue the bonds, except such as it obtained by this vote, and that authority was conditioned that the buyer of the bonds, the promisee, should pay to the city at least the par value as the consideration thereof. The real payors of the bonds are the people who pay the taxes levied to raise the fund for that purpose. They are, under the constitutional scheme, in substance and effect the principals whose authority must be first given, in order to authorize their agent, the city, to make the contract. This authority, as evidenced by the records of the election at which the authority was given, must be considered as a part of the contract, at least to the extent that the conditions therein stated cannot be disregarded by the city in selling the bonds, nor by the purchaser at the sale, and this being so, it necessarily follows that an act of the legislature purporting to authorize a disregard thereof would, if valid, impair a material portion of the contractual obligation.

[Crim. No. 2434. In Bank.-January 19, 1922.]

In the Matter of the Application f TOM SCOTT for a Writ of Habeas Corpus.

[1] INSANE PERSONS-TRIAL, BY JURY-TIME-CONSTRUCTION OF CODE. The provision of section 2174 of the Political Code that after the demand for a jury upon an inquisition of insanity, the court must cause a jury to be summoned and to be in attendance at a date stated, not less than five nor more than ten days from the date of the demand for a jury trial, is directory only, and the failure to impanel a jury and try the matter of insanity within ten days from the date of the demand does not deprive the superior court of jurisdiction to proceed thereafter with the matter.

[2] ID.-AGREEMENT ON VERDICT-CONSTRUCTION OF CODE.-The provision of section 2174 of the Political Code that the alleged insane person must be discharged unless a verdict that he is insane is found by at least three-fourths of the jury does not mean that he must be discharged if the jury fails to agree, but means that upon such trial a verdict could be returned by three-fourths in number of a jury of twelve in the same manner as in civil cases, and that he cannot be committed as insane unless a verdict of insanity is found and concurred in by at least three-fourths of the jury.

APPLICATION for a writ of Habeas Corpus to secure release pending a trial for insanity. Denied.

The facts are stated in the opinion of the court.

John R. Connelly for Petitioner.

SHAW, C. J.-The petitioner was detained upon a charge of insanity upon an affidavit as provided in section 2168 of the Political Code. He was arrested on a warrant issued thereon on September 1, 1921. An inquisition of insanity was held and on September 7, 1921, he was ordered committed to the state hospital at Napa. Within five days thereafter he demanded in writing that the matter of his sanity be tried by a jury. The jury was not called until November 15, 1921. Upon the trial which then took place the jury failed to agree. On November 28, 1921, the matter was reset to be tried on December 1, 1921. So far as appears from the petition, the trial did not take place at that time and the cause is still pending in the superior court for final determination. This is not alleged but we will assume it to be the fact.

Upon these facts the petitioner claims the right to his release on the ground: 1. That the court lost jurisdiction to act in the matter by its failure to have the cause tried by a jury within the ten days after the date of the demand therefor. 2. That the detention is illegal because, as is claimed, the statute requires his discharge upon the failure of the jury to agree. These points, it is contended, are set

tled by section 2174 of the Political Code.

Section 2174 provides that after the demand for a jury trial upon an inquisition of insanity, the court "must cause a jury to be summoned and to be in attendance at a date stated, not less than five nor more than ten days from the date of the demand for a jury trial. At such trial the cause against the alleged insane must be represented by the district attorney of the county, and the trial must be had as provided by law for the trial of civil causes before a jury, and the alleged insane person must be discharged unless a verdict that he is insane be found by at least three-fourths of the jury. If the verdict of the jury is that he is insane,

the judge must adjudge that fact and make an order of commitment as upon the original hearing."

[1] We are of the opinion that the failure of the court to impanel a jury and try the matter of insanity within the ten days from the date of the demand does not deprive the superior court of jurisdiction to proceed thereafter with the matter. We deem the provision to be directory only. If the superior court should unreasonably delay the trial, the remedy would be by a proceeding in mandamus in the district court of appeal or the supreme court to compel the court to proceed.

[2] We do not understand the provision that the alleged insane person must be discharged unless a verdict that he is insane is found by at least three-fourths of the jury to mean that he must be discharged if the jury fails to agree. Our interpretation of the clause is that it was intended to provide that upon such trial a verdict could be returned by three-fourths in number of a jury of twelve in the same manner as in civil cases and that he cannot be committed as insane unless a verdict of insanity is found and concurred in by at least three-fourths of the jury. The failure of the jury to agree did not oust the jurisdiction of the court to proceed in the matter. The charge still remains against the petitioner and it is the duty of the superior court to proceed as speedily as is reasonably possible to a final determination upon the matter of his insanity by a verdict concurred in by at least three-fourths of the jury. Upon the facts stated in the petition we think the superior court has power to proceed in the matter and to detain the petitioner until it is finally disposed of.

The petition for a writ of habeas corpus is denied.

Lawlor, J., Sloane, J., Wilbur, J., Lennon, J., Shurtleff, J., and Waste, J., concurred.