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by jury as it existed at common law and at the time the constitution was adopted. With respect to the civil as distinguished from the criminal law, the right never existed in purely equity cases or in many other proceedings for the enforcement of private rights. It has been held also not to apply here to certain statutory proceedings not known to the common law. It has also been sometimes said in a general way, when the point was not before the court, that it does not apply to a crime created by statute and which did not exist at common law; but this certainly cannot be taken as a correct general statement of the law. No court would hold, for instance, that a person charged with the statutory crimes of embezzlement or displacing part of a railroad, which is a felony, could be legally tried without a jury. Modern improvements and changes in society and business have made it necessary to create felonies unknown to the common law; but, if they had existed in the last century, they certainly would have been triable in England by a jury. In fact, the general rule at common law proper was that accusations of all crimes involving loss of liberty as a punishment were triable by a jury; but parliament (which is supreme) provided by various statutes that there should be summary trials by justices of the peace, without a jury, of certain petty offenses. Blackstone refers to the matter, as follows: "By a summary proceeding I mean principally such as is directed by several acts of parliament (for the common law is a stranger to it, unless in the case of contempts) for the conviction of offenders and the inflicting of certain penalties created by those acts of parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only as the statute has appointed as his judge.” He protests against the extent to which such statutes had gone, and says: “But it has of late been so far extended as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases." In addition to offenses against the revenue laws and attach. ments for contempts, he describes the class of ordinary petty offenses provided for by such statutes as follows: "Another branch of summary proceedings is that before justices of the peace in order to inflict divers petty pecuniary mulcts and corporal penalties denounced by act of parliament for many disorderly offenses, such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justice books formerly cited, and which used to be formerly punished by the verdict of a jury in the courtleet." 4 Bl. Comm. 281. And again, speaking of the right of jury trial, he says: “So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open

attacks (which none will be so hardy as to make), but also from all secret machinations which may sap and undermine it, by introducing new and arbitrary methods of trial by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the more convenient), yet let it be again remembered that delays and lit. tle inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters." Id. p. 330. From the foregoing it clearly appears that those summary proceedings under special statutes were marked innovations upon the common law. But, as they were in existence at the time of the separation of the American colonies from England, it is, perhaps, proper to say that the quaranties in the various state constitutions of the right of jury trial do not prohibit the legis. lature from providing for summary proceedings without a jury, in cases of such petty offenses as are enumerated in said Eng. lish statutes, or in cases where the offenses so dealt with are intrinsically of the same nature and degree as those mentioned in said statutes. But the rule cannot safely be made much broader. This rule would, no doubt, allow the legislature to provide for summary proceedings without a jury, against those violating municipal by-laws. proper where the offenses charged are in their nature similar to those petty offenses mentioned in said English statutes. See 1 Dill. Mun. Corp. & 433. Of course, cases may arise very difficult of assignment to the proper side of the line of constitutional right to a jury trial, but no absolute rule can be formulated that will dispose of all possible cases. However, in the case at bar the petitioner was clearly entitled to a jury trial. The offense with which he was charged was a violation of a general law of the state; it was punishable by a fine of $500 and imprisonment for one year, and his conviction destroyed, practically, his means of livelihood; it was not in any sense a minor or petty offense; and such a crime would have been triable at common law by a jury. Parliament could, of course, have provided that a trial for such a crime, or for any crime, should be without a jury, because parliament is omnipotent; but American legislatures have no such power, for they are limited by written constitutions. It is ordered that the petitioner be discharged from custody.

We concur: VAN FLEET, J.; HARRISON, J.; GAROUTTE, J.

(106 Cal. 332) RAGSDALE v. NAGLE. (No. 15,741.) (Supreme Court of California. March 11, 1895.) SALE or Good Will-BREACH OF CONTRACT.

1. A breach of his covenant, by one who conveys his interest in the business of abstract

maker, that he will not engage in such business poration known as the Sonoma County Ab in the county so long as it is carried on by the

stract Bureau all the personal property used purchaser, cannot be justified by him on the

by him in the making of abstracts, and that, ground that the purchaser was not carrying on such business because of his having previously subsequent to the contract with Nagle, he transferred the property engaged therein to a cer- transferred to this corporation all the pertain corporation, where such corporation was

sonal property secured by him and Brown formed for the sole purpose of raising funds, and was conducted for the exclusive benefit of the

under said contract. And, to put the matpurchaser who owned practically all its stock. ter more concisely, defendant claims that 2. A contract otherwise valid is not void in

neither Ragsdale nor Brown was engaged in toto merely because, in certain independent particulars, it is broader than, or goes beyond the

the business of abstracting at the time he scope of, the law.

re-entered therein, but that their business 3. The searching or abstracting of records is had passed to the said corporation, and a "business." within Civ. Code, $ 1674, providing

consequently he was absolved from the covethat one who sells the good will of a business may agree with the buyer to refrain from carry

nants of the contract. ing on a similar business.

1. The court found that during these times Department 1. Appeal from superior court,

plaintiff had continuously carried on the Sonoma county; R. W. Crawford, Judge.

business of making abstracts, searching recAction by J. W. Ragsdale ag nst F. G.

ords, and conveyancing in Sonoma county, Nagle to enjoin the defendant from carry

and this finding meets with our approval.

The evidence discloses: That Ragsdale did ing on the business of searcher of records or abstracter, under an alleged contract,

business under the name of the Sonoma whereby defendant had agreed not to carry

County Abstract Bureau prior to its incoron such business in a specified territory.

poration, and that it was incorporated by From a judgment granting the injunction as

him for the sole purpose of securing funds prayed for, and an order denying a new

by placing the stockas collateral. He subscrib

ed for all the stock save 40 shares, which trial, defendant appeals. Affirmed,

passed to the other four directors without J. T. Campbell, A. B. Ware, and Ruth

consideration, they being accommodation diledge & Pressly, for appellant. J. A. Bar

rectors only. That during this time, and ham and C. S. Farquar, for respondent.

up to the date of the aforesaid contract with

the defendant, plaintiff had full and entire GAROUTTE, J. This is an action to re- charge of the business; hired, paid, and disstrain the defendant from carrying on the charged employés; appropriated the receipts; business of searcher of records, or abstract- accounted to nobody; did not consult the er, in the county of Sonoma. An injunc- directors; and in every way carried on the tion as prayed for was issued by the trial business as an owner and proprietor. This court, and an appeal has been taken from was all done, not only without objection the judgment, and from the order denying by the directors of the corporation, but with a new trial. The cause of action is based their knowledge and consent. As far as upon a certain contract entered into be- conduoting the business was concerned, the tween plaintiff and one Brown, upon the one corporation was entirely passive, and, judgside, and defendant Nagle, upon the other. ed by the evidence, it certainly was a matter At the date of the contract, both plaintiff in which it manifested no interest. The corand defendant were engaged in the business poration was created, and the title to the of abstracting in the county of Sonoma, and, property used in the abstract business was in consideration of the sum of $7,000, Nagle vested in it, for a certain purpose, to wit, transferred to Ragsdale and Brown the per- the raising of money. It served the pursonal property then used by him in the busi- pose of its creation, and, having done so, ness, also the good will; and he further cove appears to have been entirely satisfied. Such nanted that he would not carry on the busi- was the condition of things at the date of ness of searcher of records in Sonoma coun: the contract, and they so remained. The ty, or th ausiness of conveyancing in the business was conducted the same after the city of sauta Rosa, so long as either Rags- inaking of this contract as it was before. Ir dale or Brown should carry on a like busi- Ragsdale was out of the business at any ness in said county. In accordance with the time thereafter, he was out of the business terms of his agreement, defendant ceased at the time he entered into the contract; yet business for the time being, but some months such cannot be the case, and counsel for thereafter re-entered the field and was ac- defendant do not claim it. It is claimed tively engaged in the abstract business at that Ragsdale went out of business when he the time this action was begun. Defendant transferred the personal property obtained denies that he has violated the terms of his from Nagle to the corporation; but such agreement, and justifies his acts upon the plea a result does not follow. The location of that neither plaintiff, Ragsdale, nor Brown the legal title to this property in some parwas engaged in the business when he enter- ticular person or corporation in no way casts ed the field the second time. Upon this light upon the question at issue. That fact question it appears by the evidence that, in no way determines who is carrying on prior to the contract with the defendant, the business of abstracting by the use of plaintiff, Ragsdale, had transferred to a cor- that property. The title to the property

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may be in one person, and the business of tion District, No. 531, against P. O. Phillips abstracting with it in another.

and another to recover from the said Phil. 2. It is claimed that the contract is vold lips an assessment levied on his land by because it goes beyond the scope of the law said district, and also to procure an order in certain particulars. For present purposes for the sale of the land to satisfy the as only, let us concede that the contract is sessment. From a judgment in favor of broader in certain respects than the law; plaintiff, and denying a new trial, defendstill, it is entirely valid in all those particu- ants appeal. Reversed and remanded. lars in which it comes within the provisions of the law. Brown v. Kling, 101 Cal. 295,

Daggett & Adams, for appellants. 8. C. 35 Pac. 995; City Carpet Works V. Jones,

Denson, for respondent. 102 Cal. 506, 36 Pac. 841.

3. Section 1674 of the Civil Code says that VANCLIEF, C. The plaintif purports to one who sells the good will of a “business" be a corporation organized under the provi. may agree with the buyer to refrain from sions of Pol. Code, $ 3146 et seq., for the reccarrying on a similar "business." It is now lamation of swamp and overflowed lands, claimed that abstracting is not a business, a majority of which are situate in the county but a profession or trade; and that, there- of Fresno, and the remainder in the county fore, the provisions of the Code do not apply of Tulare; and the proceedings for the orto the present case. It is sufficient to say ganization of which were taken by petition the section is broad enough to bring the to the board of supervisors of the county of present case within its scope. As to the mean. Fresno. The object of this action is to reing of the word “business," see 2 Am. & cover from the defendant Phillips an assessEng. Enc. Law, p. 699.

ment of $1,542.45, levied upon a tract (300 For the foregoing reasons, the judgment acres) of his land situate within the plainand order are affirmed.

tiff district, and in the county of Fresno,

where this action was tried; and also to We concur:

HARRISON, J.; VAN procure an order for the sale of said land to
FLEET, J.

satisfy the assessment. The San Francisco
Savings Union (a corporation) is made a par-

ty defendant on the ground that it claims a (108 Cal. 306)

lien on the assessed land. The unverified LOWER KINGS RIVER RECLAMATION

complaint is composed of allegations of all DIST., NO. 531, v. PHILLIPS et al.

facts necessary to show that the district (No. 18,311.)

was duly organized, that the assessment was (Supreme Court of California. March 11, properly levied, and that the defendant re1895.)

fused to pay the assessment. The answer RECLAMATION OF SWAMP LAXD-ASSESSMENT-CON.

of defendants admits that the defendant CLUSIVENESS-SUFFICIENCY OP DESCRIPTION QUALIFICATION OF COMMISSIONERS.

Phillips owns the land alleged to have been 1. An order of the board of supervisors ap

assessed to him, but denies all other allegaproving the organization of a reclamation dis- tions of the complaint and then alleges the trict organized under Pol. Code, 8 3446, is con- following further defenses: "(1) That defendclusive, in an action by the district to recover

ant's lands were not subject to be embraced an assessment against the owner of land situated therein, that the district was lawfully organized, in any swamp and overflowed land district and that such land is overflowed land, but not formed under the provisions of the Political that the assessment was lawfully made, so as to Code, for the reason that they are not, and preclude evidence that his land was not benefited, and was excessively assessed.

never have been, swamp or overflowed land, 2. Such landowner is not deprived of the but are, and always have been, high and dry right to defend because of the alleged inequal- lands; that they were originally owned by ity of the assessment on the ground that such de fense is a collateral attack upon the determina

the government of the United States, and tion of the assessment commissioners, there be

never granted to the state of California, but ing no law giving him an opportunity to be were granted by said government directly to heard at the time of such assessment of his land.

the grantors of the defendant Phillips under 3. The lands included in a reclamation district assessment are sufficiently described in a

the laws of congress providing for the sale list which contains such abbreviations as are

of lands belonging to the government of the uniformly used in such lists, and which must United States. (2) That the commissioners have been understood by all taxpayers who ex

appointed to view and assess said lands were amine them. 4. A person appointed a commissioner to

not disinterested persons; that one of them, view and assess the lands in a reclamation dig- F. A. Blakely, was interested, and therefore trict is a "disinterested person," within Pol. Code, disqualified to act as such commissioner, be8 3156, where he owns no land in the district, and has no pecuniary interest that could have

cause he was secretary of the board of trusaffected the assessment, although he was secre- tees of plaintiff, under a salary, at the time tary of the board of trustees of the district, he was appointed, and during all the time be and received a salary as such.

acted, as such commissioner. (3) That the Commissioners' decision. Department 1. commissioners appointed to view and assess Appeal from superior court, Fresno county; the lands in said district did not view the M. K. Harris, Judge.

lands which they assessed to the defendant Action by Lower Kings River Reclama- Phillips, and did not assess them in propor

Cal.) LOWER KINGS RIVER RECLAMATION DIST., No. 531, 0. PHILLIPS.

631

tion to the whole expense of the works, and of defendant and others against the incluto the benefits resulting to them from such sion of their lands in the district, presented works, but, on the contrary, fraudulently and to the board of supervisors of Fresno counarbitrarily assessed the lands of the defend- ty in answer to the petition for the forma ant Phillips without regard to any benefit tion of the district; (4) the testimony of the to them resulting from said works; and that defendant Phillips and five other witnesses, said works do not and will not benefit de- -P. Byrd, George D. Wood, J. T. Brooks, M. fendant's lands in any form or to any extent C. Wood, and T. J. Hames,-tending to prove whatever.” The court found as facts “that that only a small part of defendant's land all and singular the allegations contained in had ever been overflowed, and only five or plaintiff's amended complaint are true as six times within 30 years; that such overaverred,” and further specially found for flows did not prevent the raising of a crop plaintiff on all issues tendered by the answer, thereon during the years of the overflow; and thereupon rendered judgment in favor and that defendant's land was not swamp or of plaintiff in accordance with the prayer overflowed land, and would not be benefited of the complaint. The defendants have ap- by the reclamation works. Before finding pealed from the judgment and from an order the facts, the court expressly sustained the denying their motion for a new trial.

objections of plaintiff to all evidence offered The assessment list shows that the whole by defendant "touching the character of the number of acres assessed was 8,490; that lands in the district, the due incorporation of the amount of the assessment was $42,786.48, plaintiff, or the question of benefits to the and that the average rate was $5.04 per lands”; to which rulings defendants duly acre; that 28 distinct tracts of land were excepted. The most important question to assessed, each to a distinct owner, at rates be decided is whether or not the court erred ranging from $1.11 to $5.55 per acre, except in thus excluding defendant's evidence. The one tract of 26 acres, which was assessed to evidence excluded was amply sufficient to a railroad company at $10.28 per acre, while justify a finding that at least five-sixths of the rate of the assessment on defendant's defendant's land was not, in fact, swamp tract of 300 acres involved in this action is nor overflowed land, and would not be ben$3.14 per acre, being 10 cents above the aver- efited by the reclamation works. age. For the purpose of proving that the 1. The due organization of the district was 300 acres of land assessed to defendant was alleged in the complaint and denied in the not and would not be benefited by the rec- answer, and therefore was in issue; and this lamation works, and that the assessment issue was tendered by plaintiff, and was mathereof at $5.14 per acre had been arbitrari- terial. On the part of the plaintiff, the afly imposed, without regard to benefits, and firmative thereof was proved by the order was grossly excessive and oppressive, and of the board of supervisors of Fresno county, also to show that the district was not law. made upon a proper petition, after due nofully organized, the defendant offered certain tice to, and appearance and answer (remondocumentary evidence and the testimony of strance) by, the defendant in this action. several witnesses. All such evidence was That order of the board of supervisors was, objected to by plaintiff's counsel on the therefore, conclusive evidence against the ground of incompetency for the following defendant that the district was lawfully orreasons: (1) That the order of the board of ganized, including his land (though it may supervisors approving the organization of the not have been so against the state), because district is conclusive evidence that all the it was an adjudication of the same issue lands included in the district are swamp and tried in this case, and between the same paroverflowed lands in the sense of section 3446 ties, and not because the attack upon that of the Political Code, and are susceptible of order was a collateral attack, nor because the benefit by reclamation; and (2) that the ac- district may have been a de facto corporation of the commissioners in apportioning the tion. The rules as to collateral attack and assessment is likewise conclusive that the de facto corporations do not apply, it being assessment of defendant's land is propor- a case of res judicata. Van lieet, Coll. Attionate to the benefits resulting from the tack, $ 17, and cases there cited as to the reclamation works. The court heard the ey- distinction between res judicata and collatidence offered by defendant without ruling eral attack. In this connection it is to be upon the objections thereto at the time they noted that the grounds of the written remonwere made, but with the understanding that strance filed by defendant with the board of the questions raised by the objections would supervisors in answer to the petition for the be expressly decided before the decision of formation of the district were that defendthe case. The substance of the evidence ant's land was not swamp nor overflowed thus received subject to the objections was: land, and would not be benefited by the pro(1) A map of the township according to gov- posed works in any degree. Therefore the ernment survey, showing that defendant's order of the board including defendant's land land was segregated from swamp and over- in the district is conclusive against him that flowed land by the government survey; (2) the land included was of a character which patent for said land from the United States the law authorized to be included in the disto defendant's grantor; (3) written protest trict. But the question whether the law au

ed.

thorizes the inclusion of land, under any cir- it is declared a lien upon his land, or recumstances, which is not swamp nor over- duced to a personal judgment against him. flowed land, or which would not be benefited, And it appeared that in that case the de. is not a question of fact; and, as a question fendant had set up in his answer "that his of law, does not appear to have been decid- lands were not, and could not have been, ed by the board of supervisors. Perhaps benefited by the works of reclamation," but lands which are not, in fact, swamp nor over- that the trial court had expressly found flowed may be benefited in some degree by against him on that issue; and this court the reclamation of adjacent swamp and over- affirmed the judgment as being the result of flowed land; and in some cases it may be "due process of law." In a later case than impracticable to form a district without in- any of those above noticed, viz. Swampcluding some land that is not swamp nor Land Dist. v. Gwynn, 70 Cal. 566, 12 Pac. overflowed. But, however this may be, the 462, the identical question under consideralaw is imperative that all lands included in tion arose, and was decided adversely to a district must be assessed in proportion to the views of respondent's counsel. In that benefits resulting from the reclamation case the plaintiff, to prove the assessment, works; and, consequently, that lands which offered the duly-certified assessment roll, to are not in any way benefited by such works which the defendant objected, and offered should not be assessed at all. From the fore. to prove that the assessment was arbitrarily going considerations it follows, I think, tha. made, and not proportionate to benefits, etc. the court did not err in excluding all evidence To this evidence the plaintiff objected on offered to prove that the plaintiff district the ground that it was irrelevant, immate. was not lawfully organized.

rial, and incompetent; and the trial court 2. But I think the court erred in excluding sustained the objection. This was beld to the evidence tending to prove that defend- be error, for which alone the judgment was ant's land was not benefited by the reclama- reversed; this court saying that the assesstion works, and was arbitrarily and excess. ment roll - "was only prima facie evidence, ively assessed, without regard to proportion- and, as such, was subject to ise contradictate benefits. As to this, also, the pleadings

We think that, notwithstanding raised a material issue tendered by the plain- the certificate signed by the commissioners, tiff by the allegations that the duly-qualified the defendants were entitled to prove, if commissioners “did jointly view each and they could, that the assessment involved in every tract thereof [the district), and did this case was not made in conformity to the assess upon the same charges proportionate requirements of the law, and so was not to the entire amount assessed and to the binding upon them, and that the court erred benefits which would result to each tract in excluding the proper evidence"; citing from the reclamation works." This allega- People v. Coghill, 47 Cal. 361; People v. tion having been denied, it devolved upon Hagar, 19 Cal. 229; and People v. Ahern, the plaintiff to prove it; and it is claimed 52 Cal. 208.-which apply the same principle by respondent's counsel that plaintiff did to a different defect in assessments by conclusively prove it by the introduction in swamp-land districts. evidence of the assessment list duly authen- The constitutional question raised in Recticated by the certificate of the commission- | lamation Dist. v. Evans, supra, as to due

The contention of respondent's coun- process of law, arose in Hagar v. Reclamasel that the assessment roll in due form is tion Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. conclusive evidence that the assessment was 663, in which the opinion of the court was lawfully maile in proportion to benefits, etc., written by Mr. Justice Field, who admits seems to find countenance in the cases of that where a tax or assessment is required People v. Hagar, 52 Cal. 181, and People v. to be levied in proportion to the value of Hagar, 66 Cal. 59, 4 Pac. 951. But in Rec- the property assessed, or in proportion to lamation Dist. No. 108 V. Evans, 61 Cal. benefits to such property, it would not be 101, it was held otherwise. That was an due process of law to enforce the payment action to enforce a swamp-land district as- of such tax or assessment without giving sessment, in which it was contended that the owner of the land assessed an opportunithe law authorizing such assessment is un- ty to be heard on the question of value or constitutional, since it purports to authorize benefits; but holds that, where the assessa deprivation of the taxpayer of his propertyment can be enforced only by an ordinary without due process of law, in that it affords action at law, to which the taxpayer is made him no opportunity to be heard upon the a party, it is immaterial whether or not he question as to whether the assessment is had notice or opportunity to be heard be proportionate to benefits, as the law requires fore the commencement of the action. "In it to be. The only answer to this by this such cases," says the learned justice, "all court was that, inasmuch as the assessment the opportunity is given to the taxpayer to could be enforced only by an action to which be heard respecting the assessment which the taxpayer must be made a party, and to can be deemed essential to render the prowhich "the Code does not limit the defenses,” | ceedings due process of law.

The he is thereby given his day in court, with assessment under consideration could, by the full opportunity to contest the charge before law of California, be enforced only by legai

ers.

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