pany of New York is interested in respondent; but that fact does not devest from respondent any of the corporate powers with which it is clothed. There is nothing in the letter, spirit, or policy of the law which prohibits the same persons from forming and conducting two or more different corporations. This same question was before the United States circuit court for the district of Idaho (see Postal Tel. Cable Co. v. Oregon S. L. R. Co., 104 Fed. 623) in a case upon all fours with the one at bar, and the court said: "The next objection is that plaintiff is not a corporation and is not organized in good faith. No one will doubt that the organization of plaintiff was for the puropse of co-operation with the Postal Telegraph Cable Company of New York. It may be said that it is subordinate to the latter, and is to assist it in carrying out its objects. It may be nothing more than an agent. This may be said of it more from general circumstances than from the testimony in the case. This, however, is a common procedure with all large corporations. A recent instance is in mind. A railroad company, now operating in North Idaho, desiring to add a branch of about five miles, organized an independent company to build the same; and I think this defendant, in building the branch railroad from Nampa to Boisé, did the same. It seems not an unusual matter for a large corporation to utilize small corporations for their purpose. If the plaintiff, however, is organized for a fraudulent purpose, the court will not lend its aid in the consummation of any fraud; but this I am unable to find against the plaintiff from the evidence. The facts are that it appears by the record to have organized according to the statutes. It has held corporate meetings and performed corporate acts. It has not built any telegraph line within the territory for which it was organized; but it is for the privilege of doing that in the place it deems most available and best for its use that it is now in this forum. Until it is clearly shown that this organization is based upon fraud, or that it is for some fraudulent purpose, the court must regard it as organized in good faith, and accede to it accordingly the statutory rights accorded it." These views are fully sustained by the following authorities: Cunningham v. City of Cleveland, 39 C. C. A. 211, 98 Fed. 657; Lowler v. Railroad Co., 59 Iowa, 563, 13 N. W. 718; Day v. Telegraph Co., 66 Md. 354, 7 Atl. 608; In re New York, L. & W. Ry. Co., 35 Hun, 220; Id., 99 N. Y. 12, 1 N. E. 27; Com. v. New York, L. E. & W. R. Co., 132 Pa. 591, 19 Atl. 291; Frost v. Coal Co., 24 How. 278, 16 L. Ed. 637.

However, the authority of respondent to exercise the power of eminent domain cannot be considered in this proceeding. While the burden of proving its corporate existence was by the denial in the answer placed upon respondent, it was only necessary that it prove that it was a corporation de facto.

Dry-Goods Co. v. Box, 13 Utah, 629, 45 Pac. 629. Having made such proof, its corporate existence cannot be inquired into collaterally. Marsh v. Mathias, 19 Utah, 350, 56 Pac. 1074. And this proceeding to condemn a right of way is a collateral proceeding so far as it concerns the question of the corporate existence of respondent. Peoria & P. U. Ry. Co. v. Peoria & F. Ry. Co., 105 III. 110; Wellington & P. R. Co. v. Cashie & C. R. & Lumber Co., 114 N. C. 690, 19 S. E. 646; Turnpike Co. v. Bobb, 88 Ky. 226, 10 S. W. 794; Golden Gate Mill & Min. Co. v. Joshua Hendy Mach. Works, 82 Cal. 184, 23 Pac. 45. And it may be stated as a general rule that the legal existence of a de facto corporation can only be questioned by the state in a direct proceeding instituted for that purpose. Reisner v. Strong, 24 Kan. 411; Independent Order of Foresters v. United Order of Foresters, 94 Wis. 234, 68 N. W. 1011; Chicago & N. W. Ry. Co. v. Chicago & E. R. Co., 112 Ill. 601; Mortgage Co. v. Tennille (Ga.) 13 S. E. 158, 12 L. R. A. 529; Stout v. Zulick (N. J. Err. & App.) 7 Atl. 362; Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319; National Docks Ry. Co. v. Central R. Co. of New Jersey, 32 N. J. Eq. 755, 760; Rex v. Corporation of Carmarthen, 2 Burrows, 869. In the case of Ward v. Railroad Co.. 119 III. 287, 10 N. E. 365, the court says: "There is some proof that the petitioner is a corporation de facto, and that is all the law requires in this class of cases. There is evidence, although it may be slight, of corporate acts done by petitioner. It appears that an engineer has been appointed, the line of the proposed road has been located, and other steps taken towards the building of the road. * These are corporate acts, and tend to show that petitioner is a corporation de facto." See, also, Colorado E. Ry. Co. v. Union Pac. Ry. Co. (C. C.) 41 Fed. 297; Smith v. Sheely, 12 Wall. 358, 20 L. Ed. 430.

*

That the telegraph is a public use, and the business of telegraphy is obviously a public business, is well established. It is a quasi public employment,-one not merely exercised for the purpose of private gain, but for the general benefit and welfare of the community. A telegraph company is a public servant, which must serve all alike who make demands upon it, and its right to exercise the power of eminent domain is recognized by our statutes and by numerous decisions of the courts. Rev. St. § 3588, subsec. 8: Joyce, Electric Law, § 274; Lewis, Em. Dom. § 172. The use, then, to which respondent seeks to apply the land to be condemned is a public use, recognized by law. It is, however, contended that the land sought is already devoted to a public use, and that the condemnation for telegraph purposes will not be devoting it to a more necessary public use. The land which respondent seeks to condemn is not now used for any purpose. Practically it is now idle

property, and the new use promises to be one of public utility. The appropriation of the right of way of a railroad not essential to the enjoyment of its franchises and property, for the construction of a telegraph line, is to and for a more necessary public use. Southern Pac. Ry. Co. v. Southern Cal. Ry. Co., 111 Cal. 231, 43 Pac. 602.

It is also argued that no necessity has been shown to exist for the taking of the right of way. But it is shown that the respondent made a bona fide effort to agree with the appellant upon terms for the taking of the land sought, and that the latter refused to consider respondent's proposition or to negotiate with it at all. The necessity, therefore, exists for the taking. It is not a question whether there is other land to be had that is equally available, but the question is whether the land sought is needed for the construction of the public work. The necessity is shown to exist when it appears that it is necessary to take the land by condemnation proceedings in order to effectuate the purposes of the corporation. Railroad Co. v. Kip, 46 N. Y. 553, 7 Am. Rep. 385; Railroad Co. v. Brainard, 9 N. Y. 110. The respondent has the right to determine when and where its telegraph line shall be built. It may be said to be a general rule that, unless a corporation exercising the power of eminent domain acts in bad faith or is guilty of oppression, its discretion in the selection of land will not be interfered with. Railway Co. v. Petty, 57 Ark. 359, 21 S. W. 884; Englewood Connecting R. Co. v. Chicago & E. I. R. Co., 117 Ill. 611, 6 N. E. 684; O'Hare v. Railroad Co., 139 Ill. 151, 28 N. E. 923; Stark v. Railroad Co., 43 Iowa, 501; Peavey v. Railroad Co., 30 Me. 498; Fall River IronWorks Co. v. Oil Colony & F. R. R. Co., 5 Allen, 221; Railroad Co. v. Stoddard, 6 Minn. 150 (Gil. 92); Dietrichs v. Railroad Co., 13 Neb. 361, 13 N. W. 624; Railroad Co. v. Speer, 56 Pa. 325; Colorado E. Ry. Co. v. Union Pac. Ry. Co. (C. C.) 41 Fed. 293; New York Cent. & H. R. R. Co. v. Metropolitan Gaslight Co., 5 Hun, 201. With the degree of necessity or the extent which the property will advance the public purpose, the courts have nothing to do. Tracy v. Railroad Co., 80 Ky. 259; In re New York Cent. & H. R. R. Co., 77 N. Y. 248; Railroad Co. v. Hooper, 76 Cal. 404, 18 Pac. 599. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. Boom Co. v. Patterson, 98 U. S. 403, 406, 25 L. Ed. 206; St. Louis, H. & K. C. Ry. v. Hannibal Union Depot Co., 125 Mo. 82, 28 S. W. 483.

It is contended by appellant that the respondent had no power to locate its telegraph line longitudinally upon appellant's right of way, because, when the lands have been once taken, by virtue of the power of eminent domain or otherwise, and appropriated to a public use, as is the right of way in controversy, such land cannot again be

subjected to another public use, unless such secondary appropriation be authorized by the legislature. The authorities, however, affirm that this rule only applies when the second public use, by reason of its nature or character, necessarily supersedes or destroys the former use. Where, as in this case, the construction of the telegraph line will not materially interfere with the use of appellant's land for railroad purposes, it is clear that the rule does not apply. Baltimore & O. S. W. R Co. v. Board of Com'rs (Ind. Sup.) 58 N. E. 837; Gold v. Railway Co., 153 Ind. 232, 53 N. E. 285; Steele v. Empsom, 142 Ind. 397, 41 N. E. 822; Southern Pac. R. Co. v. Southern Cal. Ry. Co., 111 Cal. 221, 43 Pac. 602; Southwestern Telegraph & Telephone Co. v. Gulf, C. & S. F. R. Co. (Tex. Civ. App.) 52 S. W. 106; St. Louis & C. R. Co. v. Postal Tel. Co., 173 Ill. 521, 51 N. E. 382. Mr. Lewis, in his work on Eminent Domain (section 269), says: "A telegraph line may be established along a railroad right of way, it being no material interference with the use thereof for railroad purposes." And this is undoubtedly the law. A telegraph line, constructed as proposed, will not, in the nature of things, interfere with the operation of appellant's railroad.

The certificate of the postmaster general of the United States, showing the acceptance by respondent of the provisions of the act of congress of July 24, 1866, entitled "An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military, and other purposes," was properly admitted in evidence. By accepting the provisions of this act, respondent is given the right to erect its telegraph lines upon all post roads; and by section 3964 of the Revised Statutes of the United States all railroads are made post roads. But, before respondent can exercise the right thus granted by congress, it must have fixed and paid to the appellant just compensation for the easement. This is ascertained by resorting to the state law relative to eminent domain. The state law becomes auxiliary to the act of congress, and provides the method of condemnation and compensation. In other words, a right is given by this act of congress, and the remedy is furnished by the laws of the state. Postal Tel. Cable Co. v. Southern Pac. R. Co. (C. C.) 89 Fed. 190; Gilmer v. Lime Point, 18 Cal. 229; Postal Tel. Cable Co. v. Morgan's Louisiana & T. R. & S. S. Co., 49 La. Ann. 58, 21 South. 183; Smith v. Drew, 5 Mass. 513; Rogers v. Bradshaw, 20 Johns. 735-744; Kohl v. U. S., 91 U. S. 373, 23 L. Ed. 449; Suth. St. Const. § 399.

It is also claimed that the lower court erred in the rule as to the measure of damages which it adopted. It is insisted that the value of the property taken should be measured by the most advantageous use to which it could be put. That rule is undoubtedly correct where one owns property

in fee and may put it to any use which he chooses; but it is not the rule, as in this case, where the railroad right of way can only be devoted to railroad uses. Even though the award be nominal, if the sum awarded is a full and fair equivalent for the thing taken, it is just compensation. In the case of a railroad company whose right of way is held for railroad purposes, it is not a question as to what the property would be worth to the most advantageous use to which it could be put; but the question is, how much will the land be damaged for railroad purposes by the erection of the telegraph line? St. Louis & C. E. R. Co. v. Postal Tel. Co., 173 Ill. 508, 51 N. E. 382; Chicago, B. & Q. R. Co. v. City of Chicago, 149 Ill. 457, 37 N. E. 78; Id., 166 U. S. 226, 17 Sup. Ct. 581, 38 L. Ed. 819. The railroad company holds its right of way strictly for railroad purposes, and is restricted in its use of the same for such purposes. Under this view of the estate which the railroad company has in its right of way, it is difficult to see how the damage from the erection of a telegraph line can be more than nominal. Evidence was introduced by appellant to show damages from the added expense of burning grass from the right of way by reason of the erection of telegraph poles; but such damages are too remote. Southwestern Telegraph & Telephone Co. v. Gulf, C. & S. F. R. Co. (Tex. Civ. App.) 52 S. W. 107. Neither can damages be allowed for imaginary dangers. Jones v. Railroad Co., 68 Ill. 380; Railroad Co. v. Lamb, 11 Neb. 592, 10 N. W. 493; Chicago & N. W. Ry. Co. v. Town of Cicero, 157 Ill. 48, 41 N. E. 640; Lockie v. Telegraph. Co., 103 Ill. 401. Where, as in this case, a telegraph company has a right under the statutes to condemn a right of way on the right of way of a railroad, the damages to be paid to the railroad company are nominal, inasmuch as the railroad company only owns a right of way, and such a right of way is not interfered with by the telegraph company. Railroad Co. v. Catholic Bishop, 119 Ill. 529, 10 N. E. 372; Hilcoat v. Bird, 10 C. B. 327; Allen v. City of Boston, 137 Mass. 319; In re Albany St., 11 Wend. 149, 25 Am. Dec. 618; Chicago, B. & Q. R. Co. v. City of Chicago, 166 U. S. 258, 17 Sup. Ct. 992, 38 L. Ed. 819.

We find no error in the record, and the judgment of the lower court must be affirmed, with costs.

BARTCH and BASKIN, JJ., concur.

(133 Cal. 335)

PAGE v. VAUGHN et al. (L. A. 830.) Supreme Court of California. July 9, 1901.)

INJUNCTION-DISSOLUTION-NOTICE. Under Code Civ. Proc. $ 532, providing that, if an injunction be granted without notice, the defendant may apply, upon reasonable no

tice, to dissolve or modify the same, the court has no power to dissolve an injunction without notice to the plaintiff.

Commissioners' decision. Department 2. Appeal from superior court, Kern county; J. W. Mahon, Judge.

Bill by Sherman Page against M. L. Vaughn and another. From an order granting defendants' motion to dissolve an injunction, plaintiff appeals. Reversed.

C. C. Wright and Roger S. Page, for appellant. Alvin Fay and E. J. Emmons, for respondents.

GRAY, C. This is an appeal from an order dissolving an injunction. The plaintiff alleged in his verified complaint that he and the defendant M. L. Vaughn were each owners of an undivided one-half interest in a certain mining claim situated in Kern county; that investigation had demonstrated that the ores in said mine could not be extracted, shipped, and treated in any mill available for that purpose without great waste and loss, and for that reason on a certain day plaintiff notified defendants that he would not then engage in working said mine nor become a partner with them for that purpose, and at the same time objected to the removal of the ores in which he had an interest; that thereafter defendants, intending and conspiring to cheat and defraud plaintiff, and to deprive and exclude him from his said property, and intending to convert the same and the whole thereof to their own use, entered upon said property with a large force of men, and took exclusive possession of all parts thereof where work could be done or in which there is ore of any present value, and have ever since held such possession to the entire exclusion of plaintiff; that defendants while so in possession have committed, and are still committing, great waste and irreparable injury and damage to plaintiff's interest in said property by carrying away some of the ore, mixing it with worthless waste matter, throwing some of it over a steep incline, and covering it with a large mass of débris, where it cannot be recovered; that defendants have taken out large quantities of high-grade ore without regard to the method or safety of the shaft, and have done their work in a very unminer-like manner; that they have left the shaft untimbered and in a dangerous condition, and have committed numerous other acts specifically set out in the complaint, all of which as is alleged will tend to great waste and destruction of the property, and for all of which plaintiff has no adequate redress or remedy at law. Plaintiff further alleges that he has demanded possession of his interest in the said property, and defendants have refused, and still refuse, to permit him to enter into possession of said interest; that defendants and their employés still hold possession of said property, and are working the same as aforesaid to the exclusion of plaintiff, and

threaten to continue said work, and to commit further waste and irreparable injury to the said property. Plaintiff demands judgment for the possession of his interest in said property, for damages, and that during the pendency of the action the defendants be restrained by order of the court from interfering in any way with plaintiff's interest in said property, and from taking from said property or treating any of the ores thereof, and from disposing of any of the proceeds derived therefrom.

Upon this complaint, and without notice to the defendants, an injunction was granted by the court as prayed in said complaint. Thereafter the defendants filed a verified answer denying all the material allegations of the complaint, except that the plaintiff and M. L. Vaughn are the owners as co-tenants of the mine, which is admitted, and averring that at no time has plaintiff been denied access to the mine or possession of his interest therein. Upon the said complaint and answer the defendants, without notice to plaintiff, subsequently moved the court to dissolve the injunction, and it is from the order granting said motion that this appeal is taken.

Section 532, Code Civ. Proc., provides: "If an injunction be granted without notice, the defendant at any time before trial, may apply, upon reasonable notice, to the judge who granted the injunction, or to the court in which the action is brought, to dissolve or 'modify the same. The application may be made upon the complaint and the affidavit on which the injunction was granted, or upon affidavit on the part of the defendant with or without the answer. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence in addition to those on which the injunction was granted." The evident purpose of the foregoing statute is to empower the court to dissolve its injunction only after notice to the plaintiff. The meaning of the statute is plain, and to put a construction on it that would dispense with the notice required by it is to construe one provision of the statute out of existence, and thereby thwart the purpose of the legislature in enacting it. If there were ever any doubt as to the language of the statute, its meaning must be taken as settled in the well-considered case of Hefflon v. Bowers, 72 Cal. 270, 13 Pac. 690. On the authority of the statute cited, as construed in that case, we think the court erred in dissolving the injunction without notice to plaintiff. It would add nothing to the law to here repeat the reasoning contained in the case cited. We advise that the order appealed from be reversed.

We concur: SMITH, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is reversed.

(133 Cal. 347)

PEOPLE v. MADDEN et al. (McGAHEY, Intervener. Sac. 811.)

(Supreme Court of California. July 9, 1901.) ACTION AGAINST COUNTY TREASURER-SATISFACTION-DISMISSAL.

Where a grand jury, which, under Pen. Code, § 929, is empowered to institute suits against county officers for moneys due the county, and the county board of supervisors ratify a suit brought by the district attorney against a county treasurer and his sureties to recover money fraudulently converted, the fact that such suit was instituted without authority of such board or any other official is not ground for dismissal thereof.

Commissioners' decision. Department 2. Appeal from superior court, Modoc county; J. W. Harrington, Judge.

Action by the people of the state of California against John Madden and others. John McGahey intervened. From a judgment in favor of the latter, plaintiff appeals. Reversed.

Tirey L. Ford, Atty. Gen., and John E. Raker, Ex Dist. Atty., for the People. G. F. Harris, E. C. Bonner, and J. H. Stewart, for respondent.

SMITH, C. Appeal from a judgment dismissing the action. The suit was brought against the defendant Madden, county treasurer, and his sureties, to recover the sum of $34,825.35, money of the state and county fraudulently converted by him. Judgment was entered by stipulation against the sureties, excepting one, as to whom the action was dismissed,-and, among others, against McGahey, now intervener. The defendant Madden had not been personally served, and the suit was continued as to him. The complaint in intervention of McGahey was filed January 6, 1899, about six months after the judgment against him and the other sureties. The action was dismissed on the ground that the suit was commenced, by the district attorney without authority of the board of supervisors, or other board or official having power to authorize the suit, and without authority of law.

The last proposition is contested by the appellant's counsel, who claim that under the law the district attorney is authorized by virtue of his office to bring suits of this character. The ruling of the court to the contrary was based on the supposed authority of the decision in Ventura Co. v. Clay, 119 Cal. 213, 51 Pac. 189. But it is claimed by the attorney general and his associate counsel that the decision does not apply, and, if it be held otherwise, the court is requested to review the decision, and to reexamine the question as to the authority of the district attorney to bring suits of this kind. This request, coming, as it does, from the highest officer, representing the interests of the state in matters of litigation, we would willingly acceed to; but, being of the opinion that the judgment must be reversed

on other grounds, it will be unnecessary to consider either the rectitude or the application of the decision.

It appears without controversy that the action of the district attorney in bringing the suit was subsequently ratified and approved by the board of supervisors, and also by the grand jury, which, under section 929 of the Penal Code, had power to authorize the district attorney to institute and maintain the suit, and which in fact expressly directed him to continue the prosecution of this particular proceeding. The right of a defendant to move to dismiss a suit for lack of authority in the plaintiff's attorney to institute or maintain it is based on the ground that otherwise "he might be twice compelled to litigate the same cause of action" (Weeks, Attys. at Law, § 200); but this reason ceases, and with it the rule, if the act of the attorney is subsequently ratified by the plaintiff (Id. p. 430 [at top] §§ 203, 206; Ryan v. Doyle, 31 Iowa, 53). In this respect the case of client and attorney cannot be distinguished from other kinds of agency. We advise that the judgment be reversed, and the same remanded for further proceedings.

AMERICAN TYPE FOUNDERS CO. et al. v.
JUSTICE'S COURT OF SAUSALITO
TP. et al. (S. F. 1,473.)1

(Supreme Court of California. July 3, 1901.) JUSTICES OF THE PEACE TRIAL BY COURTTIME FOR DECISION OF CASE. Notwithstanding Code Civ. Proc. § 892, relative to justices' courts, provides that, when the trial is by the court, judgment must be entered at the close of the trial, a justice of the peace may take a case under advisement, and a judgment rendered some months after trial is valid.

Department 2. Appeal from superior court, Marin county; F. M. Angellotti, Judge.

Appeal from a judgment rendered on certiorari by the superior court of Marin county affirming the judgment of a justice of the peace. Affirmed.

Gordon & Young, for appellants. T. J. Crowley, for respondents.

TEMPLE, J. This appeal is from a judgment rendered upon certiorari, by the superior court of Marin county, affirming the judgment of a justice of the peace. A case was tried by the justice, and at the conclusion of the trial was taken under advisement, and the parties were allowed to file briefs. Some months afterwards the justice rendered judgment in favor of the plaintiff In that action. The defendant subsequently For opinion on motion for reargument, see 65 Pac. 978.

commenced this proceeding. His contention is that a justice of the peace has no authority to take a case under advisement, and that a failure to decide a case at the conclusion of the trial works a discontinuance of the cause. This contention is based upon section 892, Code Civ. Proc., which reads: "When the trial is by the court, judgment must be entered at the close of the trial." The point was made and expressly decided in Heinlen v. Phillips, 88 Cal. 557, 26 Pac. 366. Counsel for the appellants contend that all that was said upon the subject in that case was obiter, because it was also urged and decided in that case that the justice of the peace had no power to set aside the judgment, it not being a judgment by default. It was held in Winter v. Fitzpatrick, 35 Cal. 269, that a justice could not vacate a judgment entered by him. This question was reconsidered in Weimmer v. Sutherland, 74 Cal. 341, 15 Pac. 849, and it was there said that the justice court could only vacate a judgment in cases where it was expressly authorized by statute. and it was authorized by section 859, Code Civ. Proc., to do so with reference to judgments entered upon a default, but could do so in no other cases. It seems that in Heinlen v. Phillips, notwithstanding these decisions, respondent to the writ again raised the point; but in this court, at least, his main reliance was upon the proposition that the judgment was vold, and therefore could have been vacated at any time, and that, at all events, there being no valid judgment in the case, the order setting the case for trial was valid. The point was properly before the court, and necessarily decided. A decision of the other question did not dispose of the case; for, if the judgment which the Justice had entered was void, it was properly struck out of the record. We have held that It is always in the power of the court to erase from its records a void judgment. The decision was one, therefore, which the court was bound to make. Without the decision upon this point, the judgment entered would have been an absolute non sequitur. provided it had also appeared that the contention was made that the judgment which the justice had set aside was a void judgment. The judgment is affirmed.

(133 Cal. 321) In re HUGHSTON'S ESTATE. (S. F. 2,720.) 1 (Supreme Court of California. July 3, 1901.)2 APPEAL FROM PROBATE COURT-RETROACTIVE STATUTES-ENTRY OF JUDGMENT. The amendment passed February 28, 1901, to the Code of Civil Procedure (section 963, subd. 3), authorizes an appeal from an order or judgment refusing to revoke the probate of a will. Section 1715, relative to probate orders, decrees, and judgments, declares that the appeal must be taken within 60 days after the order, decree, or judgment is entered. Held, that

1 For dissenting opinion, see 65 Pac. 1039. 'Rehearing denied August 3, 1901.