PUBLIC LANDS (Continued).

and overflowed land, certain land forming a part of the bed of Little Klamath Lake, the conclusion of the district court of appeal that the government surveys of 1873 established the character of the land as sovereign and not as swamp and overflowed land is held to be erroneous, and that it cannot be declared as a matter of law, from facts of which the court takes judicial notice, that the land is not swamp and overflowed land. (Id.)

10. CONTEST-STATE NOT A PARTY-JUDGMENT-LACK OF ESTOPPEL.While it is made the duty of the state surveyor-general under section 3416 of the Political Code to issue his patent or certificate to the successful party in a contest for the right to purchase state lands, the state is not a party to the contest and is not estopped by the judgment therein. (Id.)

11. STIPULATION AS TO CHARACTER OF LANDS-FORECLOSURE OF INQUIRY -EVIDENCE.-Where, in a contest for the right to purchase state lands, both parties claimed that the lands were swamp and overflowed lands, such question was not an issue, and evidence as to the character of the lands was, therefore, wholly ineffectual, and immaterial. (Id.)

12. DECISION AS TO CHARACTER OF LAND RIGHTS OF UNITED STATES.A decision of the supreme court in a contest between private persons for the right to purchase land on the shores of Little Klamath Lake that the land is sovereign land is not prejudicial to the rights of the state as against the United States, growing out of the act of the legislature (Stats. 1903, p. 4), ceding certain lands in such lake to the United States for reclamation purposes, the government not being a party to the proceeding. (Id.) 13. CONTEST-JUDGMENT IN MANDAMUS PROCEEDING-LACK OF ESTOPPEL. A judgment in a mandamus proceeding to compel the state surveyor-general to issue a patent to state land that the land was sovereign land is not conclusive upon a contestant of the petitioner's right to purchase, where such contestant was not a party to the mandamus proceeding. (Franklin v. Churchill Co., 555.) 14. TITLE OF STATE TO SWAMP AND OVERFLOWED LANDS-IDENTIFICATION AND PATENT SUBSEQUENT TO GRANT-RELATION OF TITLE.Under the act of Congress of September 28, 1850, granting swamp and overflowed lands to the state, full beneficial enjoyment thereof passed to the state at that time subject only to the contingencies incident to identification, and when the lands were identified and a patent there for issued to the state on June 10, 1896, the title so transferred related back to the year 1850, and inured to the benefit of the state and its successors in interest for all purposes, as if the legal title had passed at the date of the act. (Canal & Irrigation Co. v. Worswick, 674.)

See Waters and Water Rights, 8,

PUBLIC OFFICERS.

1. STATUTES-COUNTY ENGINEER ACT-CREATION OF PUBLIC OFFICE.The County Engineer Act (Stats. 1919, pp. 1290, 1295) contemplates the creation of a county office and does, in fact, provide for something more than a mere employment by the board of supervisors of a person to be known as the county engineer. (Coulter v. Pool, 181.)

2. PUBLIC OFFICE-CHARACTER OF-HOW DETERMINED.-The definition and application of the words "public office" depend not upon what the particular office in question may be called, nor upon what a statute may call it, but upon the power granted and wielded, the duties and functions performed, and other circumstances which manifest the true character of the position and make and mark it a public office, irrespective of its formal designation. (Id.)

3. DEFINITION.-A public office is ordinarily and generally defined to be the right, authority, and duty, created and conferred by law, the tenure of which is not transient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public. (Id.) 4. NATURE OF PUBLIC OFFICE.-A public officer is a public agent and as such acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the act performed by the officer the authority and power of a public act or law. The most general characteristic of a public officer, which distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the governmental functions of the particular political unit for which he, as agent, is acting. Their characteristics are a fixed tenure of position, the exaction of a public oath of office, and perhaps, an official bond, the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and the payment of his salary from the general county treasury. (Id.)

5. COUNTY OFFICER-DEFINITION.-A county officer is a public officer and may be specifically defined to be one who fills a position usually provided for in the organization of counties and county gov ernments, and is selected by the political subdivision of the state called the "county" to represent that governmental unit, continuously and as part of the regular and permanent administration of public power, in carrying out certain acts with the performance of which it is charged in behalf of the public. (Id.)

6. COUNTY ENGINEER ACT-FAILURE TO SPECIFY COMPENSATION.The County Engineer Act is practically inoperative because it specifies no compensation for the office, and any ordinance of a board of supervisors attempting to fix the salary of a person ap

PUBLIC OFFICERS (Continued).

pointed to the position of county engineer is void to that extent, because the constitution imposes upon the legislature, exclusively, the duty of regulating the compensation of all county officers, unless a county has adopted a charter in accordance with the provisions of sections 71⁄2 or 72a, article XI, of the constitution, or there is some other express constitutional exception. (Id.)

7. COUNTY OFFICERS-FIXING SALARY-DELEGATION OF POWER-CONSTITUTIONAL LAW.-The state legislature cannot directly delegate to the board of supervisors of the various counties the power of fixing the compensation of a county officer. (Id.)

See Counties, 2, 6; Public Records, 1.

PUBLIC POLICY. See Bailments, 5.

PUBLIC RECORDS.

1. PRELIMINARY ESTIMATES AND DETAILS OF MUNICIPAL WATER SUPPLY SYSTEM-HETCH HETCHY PROJECT OF SAN FRANCISCO-CHARACTER OF DOCUMENTS AND DATA BEFORE APPROVAL BY CITY ENGINEER. The preliminary estimates, plans, drawings, maps, and other data prepared by the assistants and subordinates of the city engineer of the city and county of San Francisco for submission to him for his approval in connection with the acquisition and construction of the municipal water supply system, known as the Hetch Hetchy project, of which project the engineer is in charge as an officer of the board of public works, are not, before official approval, "public records in the office of an officer" open to inspection by any citizen of the state, within the meaning of sections 1888, 1892, 1893, and 1894 of the Code of Civil Procedure, section 1032 of the Political Code, and section 6 of chapter 1 of article VI and section 13 of article XVI of the charter of the city and county of San Francisco. (Coldwell v. Board of Public Works, 510.)

2. RIGHT OF INSPECTION AS "OTHER MATTERS" IN OFFICE OF PUBLIC OFFICER-CONSTRUCTION OF SECTION 1032, POLITICAL CODE.-The preliminary estimates and details prepared by the assistants and subordinates of the city engineer of the city and county of San Francisco for submission to him for his approval in connection with the Hetch Hetchy project are, before approval, of such character as constitutes them "other matters" within the meaning of section 1032 of the Political Code, which provides that the public records and other matters in the office of any officer are at all times, during office hours, open to the inspection of any citizen of the state. (Id.)

3. CONFIDENTIAL CHARACTER IMMATERIAL.-The right of a citizen under section 1032 of the Political Code to inspect preliminary estimates

187 Cal. 55

PUBLIC RECORDS (Continued).

and details in connection with the acquisition and construction of a municipal water supply system as "other matters in the office of any officer" is not affected by the fact that the engineer had communicated them to the city attorney as confidential matter in pending and anticipated litigation affecting the project. (Id.)

4. INSPECTION BY CERTAIN CITIZENS-WAIVER OF PRIVILEGED CHARACTER.- -Where preliminary estimates and details in connection with the acquisition and construction of a municipal water supply project were permitted by the city engineer to be inspected by some citizens, the right of other citizens to inspect cannot be refused on the ground that the matter was of a confidential character. (Id.)

5. INSPECTION OF DATA IN OFFICE OF CITY ENGINEER-SAN FRANCISCO HETCH HETCHY PROJECT.-Judgment modified and affirmed on the authority of Coldwell v. Board of Public Works of the City and County of San Francisco et al., ante, p. 510. (San Francisco Bureau etc. v. Board of Public Works, 795.)

QUARANTINE. See Public Health, 1, 2.

QUIETING TITLE. See Appeal, 3; Courts, 2; Public Lands, 4; Tax Sales, 2-4; Waters and Water Rights, 11.

RAILROADS. See Vendor and Vendee, 2.

REAL ESTATE BROKERS' ACT.

1. VALIDITY OF.-The act known as the "Real Estate Act" (Stats. 1919, p. 1252) violates none of the fundamental principles of law, but is in harmony with them, in that it is a measure looking to the protection of the public, and provides a method of procedure in all respects ample to the protection of the rights of the licensee, and must be followed in order that the license can be legally revoked by the commissioner. (Brecheen v. Riley, 121.)

2. ACTION OF REAL ESTATE COMMISSIONER-QUASI-JUDICIAL CAPACITY. The commissioner under the "Real Estate Act" acts in a quasijudicial capacity when passing upon applications for a license, and when hearing petitions to revoke, and revoking, a license issued under the act, for he is deciding property rights and determining what shall be decreed in the matters before him, all of which is the exercise of a "judicial function"; but such commissions are not courts in the strict sense nor exercising judicial power as meant by the constitution conferring power upon courts, and statutes creating such commissions are constitutional. (Id.) 3. CHARGE OF DISHONEST DEALING-JURISDICTION.-A charge against a person laid before the real estate commissioner of acts "involv

REAL ESTATE BROKERS' ACT (Continued).

ing embezzlement, false representations, and gross moral turpitude" constitute "dishonest dealing," within the meaning of the phrase used in the Real Estate Act, and presents an issue which the commissioner is clearly authorized to hear and has jurisdiction to determine. (Id.)

4. CONSTITUTIONALITY OF ACT.-The "Real Estate Act" (Stats. 1919, p. 1252) is constitutional. (Id.)

REFORMATION OF INSTRUMENTS. See Contracts. 15-17: Sales, 6-9.

RELEASE. See Bonds, 1, 4, 5; Estates of Deceased Persons, 3.

REMEDIES. See Mandamus, 1; Motions, 2; Sales, 4.

RESCISSION. See Sales, 3-5: Vendor and Vendee. 3. 8. 10. 11. 13, 14.

RESIDENCE.

1. QUESTION OF INTENT.-Where a person has two dwellings in different places and resides a part of his time in one place and a part of the time in another alternately, the question which of the two places is his legal residence is almost altogether a question of his intent. (Chambers v. Hathaway, 104.)

2. EVIDENCE-REGISTERING AS VOTER-AFFIDAVIT-DECLARATION.-An affidavit made for the purpose of registering as a voter in which affiant states that his residence is at a certain place constitutes a declaration by affiant that at that time his legal residence is in the place indicated, and if unexplained and there is no other evidence of a subsequent change of intent, it would be sufficient to uphold a finding to that effect in a proceeding by the state controller, under the Inheritance Tax Act, for the collection of inheritance tax; but where the evidence shows that after making the affidavit he formed a decided intention to have his residence at his former home in a different state which he used repeatedly as a residence, the union of act and intent as required by the Political Code was sufficiently manifested to establish his residence in the latter place. (Id.)

See Estates of Deceased Persons, 14, 15.

RES JUDICATA. See Public Lands, 6, 13.

RESTRAINT OF TRADE. See Contracts, 23, 24.

RIPARIAN RIGHTS. See Waters and Water Rights, 6, 12.