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DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF CALIFORNIA.

W. W. COPE,

REPORTER.

VOLUME 71.

WITH

NOTES ON CAL. REPORTS

SAN FRANCISCO:
BANCROFT-WHITNEY COMPANY,
Law PUBLISHERS AND LAW BOOKSELLERS.

1906.

Entered according to Act of Congress, in the year 1887 by

BANCROFT-WHITNEY CO.
In the Office of the Librarian of Congress, at Washington.

COPYRIGHT, 1899,
By BANCROFT-WHITNEY CO.

COPYRIGHT, 1905,
By BANCROFT-WHITNEY CO.

COPYRIGHT, 1906,
By BANCROFT-WHITNEY CO.

SUPREME COURT.

NILES SEARLS, Chief Justice.*

DEPARTMENT ONE.
E. W. McKINSTRY, Presiding Justice.
JACKSON TEMPLE, Justice. †
A. VAN R. PATERSON, Justice. I

DEPARTMENT TWO.
J. D. THORNTON, Presiding Justice.
J. R. SHARPSTEIN, Justice.
T. B. McFARLAND, Justice. I

COMMISSIONERS.
I. S. BELCHER, C. C.
H. S. FOOTE, C.
R. Y. HAYNE, C.

OFFICERS OF THE COURT. GEORGE A. JOHNSON.

Attorney-General. W. P. JOHNSON..

Deputy Attorney-General. W. W. COPE..

Reporter. C. P. POMEROY..

Deputy Reporter. J. D. SPENCER.

Clerk.

Appointed April 19, 1887, to succeed Hon. R. F. Morrison, deceased.

† Succeeded Hon. E. M. Ross, resigned. Succeeded Hon. S. B. McKee and Hon. M. H. Myrick, whose terms of office expired January 3, 1887.

$ Appointed April 26, 1887, to succeed Hon. Niles Searls, appointed Chief Justice.

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ORGANIZATION OF SUPREME COURT.

[Constitution, article 6, section 2.] § 2. The Supreme Court shall consist of a chief justice and six associate justices. The court may sit in departments and in Bank, and shall always be open for the transaction of business. There shall be two departments, denominated, respectively, Department One and Department Two. The chief justice shall assign three of the associate justices to each department, and such assignment may be changed by him from time to time. The associate justices shall be competent to sit in either department, and may interchange with each other by agreement among themselves, or as ordered by the chief justice. Each of the departments shall have the power to hear and determine causes and all questions arising therein, subject to the provisions hereinafter contained in relation to the court in Bank. The presence of three justices shall be necessary to transact any business in either of the departments, except such as may be done at chambers, and the concurrence of three justices shall be necessary to pronounce a judgment. The chief justice shall apportion the business to the departments, and may, in his discretion, order any cause pending before the court to be heard and decided by the court in Bank. The order may be made before or after judgment pronounced by a department; but where a cause has been allotted to one of the departments, and a judgment pronounced thereon, the order must be made within thirty days after such judgment, and concurred in by two associate justices, and if so made it shall have the effect to vacate and set aside the judgment. Any

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