453.

respondent shows that the plaintiff, Gerald to injure him or permit the premises to be in Giannini, was 14 years old and resided such condition that injury results. 29 Cyc. across the street from the stable owned by the defendant, who employed a colored sta- [3] The first question is whether the rebleman to take care of the horses and wag- quest of the stableman in this case is such ons and keep the stable in order. On the an invitation as to render the respondent an morning of the accident respondent saw the invitee. Without regard to defendant's testistableman leaving in a baggy and at that mony that he forbade the stableman to pertime the stableman requested the boy to clean mit any one else to do the work about the the stable during his absence and promised stable, the facts themselves show that the to pay him a nickel upon his return. A small duties of the stableman were of such a menial door, which was a part of a large sliding character that the position could not have door, was left open for the boy. Subsequent- carried with it the implied right to delegate ly the respondent and two other boys enter- the work or hire others to assist in the same. ed the stable, and while respondent was on See Curry v. Addoms, 166 App. Div. 433, 151 the premises the large sliding door fell, N. Y. Supp. 1017; Formall v. Standard Oil breaking respondent's leg and inflicting oth-Co., 127 Mich. 496, 86 N. W. 946. In fact, the er injuries. It appears that a large number duties were such that the stableman could of boys frequently congregated about the stable, and at times went into the stable while the stableman was there, but at no other time did any of the boys enter while the stableman was away. Upon several occasions respondent performed errands for the stableman at the latter's request and received some sort of remuneration. It also appears that at times the stableman and the defendant himself would drive the boys away from the stable. The door which fell down had previously been out of order, and the stableman had attempted to remedy the defect. At the close of the trial in the lower court, respondent, with leave of the court, amended his complaint to allege that the stable was attractive to children, presumably to bring the case within the rule of the "turntable cases."

[1, 2] Upon behalf of defendant evidence was produced to show that the stableman had not requested respondent to clean the stable and had not left the small door open for him, but that in fact respondent upon this occasion was a trespasser.

very easily perform them without aid. It must therefore be held that the request to do the work was unauthorized, and could not impose any additional liability upon the defendant. The case last cited is one particularly applicable upon its facts, and there a like conclusion was reached. See, also, Nofsinger v. Goldman, 122 Cal. 609, 616, 55 Pac. 425; Clark v. A. T. & S. F. R. Co., 164 Cal. 363, 128 Pac. 1032.

[4] Respondent seeks to bring this case within the rule announced in several decisions in other states, where it is held that one who at the unauthorized request of an employé performs a service in which the former or his employer is also interested, as a shipper's teamster putting a freight car in place, that person occupies a middle position between a licensee and a servant and can hold the owner of the car for any injuries received. See Thompson on Negligence, § 4986. But there seems to be only one case, Cleveland Terminal Ry. v. Marsh, 63 Ohio St. 236, 58 N. E. 821, 52 L. R. A. 142, where the mere The stableman payment for the service raises a sufficient also testified that he had never employed re-interest in the work performed to bring the spondent to do any work about the stable, person within the above-mentioned rule. and defendant himself stated that whenever Without expressing any opinion upon the he saw any of the boys around the stable he propriety of this rule in other cases, we candrove them away. But, disregarding the tes- not see how the mere payment by the unautimony advanced by defendant, and looking thorized employé can change the relation of only to the case as presented by the respond- the employer to the third party from one of ent, no ground for holding the defendant lia- nonliability to one of liability. There are nuble appears. It is well settled that as against merous cases which hold that a bystander, a trespasser or mere licensee the owner of who performs a service at the request of an property owes no duty to keep the premises employé who has no authority to make the rein safe condition. The only duty is to ab-quest, is as to the employer a mere volunteer, stain from willful or wanton injury. In other respects one who thus enters upon the premises does so at his own risk and subject to all the ordinary risks which attach to such premises. Means v. Southern Cal. Ry. Co., 144 Cal. 473, 77 Pac. 1001, 1 Ann. Cas. 206;| Kennedy v. Chase, 119 Cal. 637, 52 Pac. 33, bystander for the work done can upon no 63 Am. St. Rep. 153; Schmidt v. Bauer, 80 basis of reasoning create a liability where Cal. 565, 22 Pac. 256, 5 L. R. A. 580. It is none existed before. In the case at bar, only in the case of one who has been express- therefore, the stableman's promise to pay rely or impliedly invited upon the premises spondent to clean the stable could not make that the duty exists to exercise due care not the latter an invitee. Neither can prior serv

to whom the employer owes no duty to safeguard from negligence. McDaniel v. Highland Ave. R. Co., 90 Ala. 64, 8 South. 41; Ga., etc., Ry. Co. v. Propst, 83 Ala. 518, 3 South. 764; Flower v. Penna. R. Co., 69 Pa. 210, 8 Am. Rep. 251. For the employé to pay the

ices raise such a relation, especially where it is not pretended that they were brought home in any way to the defendant. The fact that respondent is a minor does not give him any greater rights under the circumstances. "That might excuse him from concurring negligence, but cannot supply the place of negligence on the part of the company, or confer an authority on one who has none. It may excite our sympathy, but cannot create rights or duties which have no other foundation." Flower v. Penna. R. Co., supra.

[5] The only remaining question is whether the stable constitutes an "attractive nuisance" within the doctrine of the "turntable cases." That doctrine was adopted in this state in the case of Barrett v. Southern Pacific Co., 91 Cal. 296, 27 Pac. 666, 25 Am. St. Rep. 186, and is usually applied to instances where the owner of land has erected upon it dangerous machinery, the consequences of meddling with which are not supposed to be fully comprehended by infant minds. In Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598, 56 Am. St. Rep. 106, the rule was characterized as exceptional and "not to be carried beyond the class of cases to which it has been applied." This court, in Cahill v. Stone Co., 153 Cal. 571, 96 Pac. 84, 19 L. R. A. (N. S.) 1094, applied the rule to a heavily loaded push car which the defendant had allowed to stand upon tracks in a thickly populated district, where small children were known to play upon this car, which had not been made fast, and, being upon a down grade, was used to ride upon by children, in the process of which one of them was injured. But the court in that case expressly rested the decision upon the ground that the car, situated as it was, was dangerous machinery peculiarly attractive to children, who might be injured in riding upon it, though not comprehending the danger involved. We have not such a case here. If a stable is an attractive nuisance merely because boys like to congregate in and around it, then any place where boys like to play comes within the same category, yet it is clear that such is not the law. Peters v. Bowman, supra; Loftus v. Dehail, 133 Cal. 214, 65 Pac. 379.

[6] Moreover, it is an essential ingredient of a cause of action to which the "turntable cases" doctrine applies that the minor should have been attracted to the premises by a childish curiosity and desire to play thereon. Union Stockyard, etc., Co. v. Butler, 92 Ill. App. 166. In this case the reason for respondent's presence in the stable was the request of the stableman, and there is no pretense that upon this occasion the attraction of the stable had any influence whatever upon

his visit there.

The result reached renders unnecessary any consideration of alleged errors urged by appellant.

For the reasons above given, the judgment and order are reversed.

We concur: SHAW, J.; SLOSS, J.

HENSHAW et al. v. FOSTER et al., Board
of Sup'rs of San Diego County, et al.
(L. A. 5218.)

(Supreme Court of California. Nov. 19, 1917.)
1. WATERS AND WATER COURSES 182
MUNICIPAL WATER DISTRICT INTERFER-
ENCE WITH POWERS OF CITIES.

St. 1911, p. 1290, as amended by St. 1911, (Ex. Sess.) § 92, providing that the people of one or more municipalities in any county, with or without incorporated territory in the County, may organize a municipal water district, by proceedings therein provided, does not contravene Const. art. 11, § 19, empowering any municipality to establish and operate public ter and authorizing it to furnish such service to works for supplying its inhabitants with wainhabitants and people outside its boundaries, provided that it shall not furnish service to the inhabitants of any other municipality supplying the consent of such other municipality. the same service to such inhabitants without 2. CONSTITUTIONAL LAW 63(1)-TAXATION 38-WATERS AND WATER COURSES 182-MUNICIPAL WATER DISTRICTS-DELEGATION OF TAXING POWER.

St. 1911, p. 1290, as amended by St. 1911 (Ex. Sess.) p. 92, authorizing the people of several municipalities in a county to organize a municipal water district, and delegating to the district's board of directors its corporate authority, power to tax with reference to its affairs, does not contravene Const. art. 11, §§ 12, 13, denying power to the Legislature to tax counties, cities, or other municipalities for coungate power to any one else to control or superty, city, or other municipal purposes, or to delevise any county, city, or municipal affairs, but authorizing it to, by general law, vest in the corporate authorities thereof power to tax for such purposes.

3. CONSTITUTIONAL LAW 283 WATERS AND WATER COURSES 182-DUE PROCESS -FORMATION OF MUNICIPAL WATER DIS

TRICT.

St. 1911 p. 1290, as amended by St. 1911 (Ex. Sess.) p. 92, authorizing the people of several municipalities of a county to organize a municipal water district, the directors of which may tax for its purposes, does deprive a citizen of property without due process, because no inhabitant of the proposed district has opportunity, save by his vote, of declaring his unwillingness to come within its limits and under the authority of its officers, the board of supervisors, if the proper number of names are attached to the petition for formation of the district being required to call the election.

In Bank. Appeal from Superior Court, San Diego County; C. N. Andrews, Judge.

Action by William G. Henshaw and another against Joseph Foster and others, as members of and constituting the Board of Supervisors of the County of San Diego, From an adand another, for injunction. verse judgment, plaintiffs appeal. Reversed.

S. M. Marsh, Dist. Atty., and E. V. Winnek, both of San Diego, for appellants. Sweet, Stearns & Forward, of San Diego, for respondents.

For other cases see same topic and KEY-NUMBER in all Kev-Numbered Digests and Indexes

follows:

MELVIN, J. Respondents, who are own- of this contention they rely principally upon ers of land in the county of San Diego, the declarations of this court in the opinion brought this action to enjoin the board of in Matter of the Petition of the Sanitary supervisors of that county from calling an Board of the East Fruitvale Sanitary Diselection for the purpose of determining trict, 158 Cal. 453, 111 Pac. 368. In that whether or not a district to be known as the proceeding the court was considering the San Diego municipal water district should effect of the annexation of the territory of a be incorporated under the provisions of an sanitary district to a city, and it was held act entitled "An Act to provide for the in- that the minor municipal corporation was corporation and organization and manage- merged in the major one and lost its identiment of municipal water districts, and to ty. The language of the court upon which provide for the acquisition or construction respondents place the greatest emphasis is as by said districts of waterworks, and for the acquisition of all property necessary there- "It is a well-settled doctrine that 'there canfor, and also to provide for the distribution not be at the same time, within the same terriand sale of water by said districts," approv-ercising the same powers, jurisdiction and privtory, two distinct municipal corporations exed May 1, 1911, together with the amend- ileges' 1 Dillon on Municipal Corporations (4th ment thereto approved December 24, 1911, Ed.) $ 184; King v. Pasmore, 3 Term R. 199, and the further amendment thereto approved 243; Bloomfield v. Glen Ridge, 54 N. J. Eq. 276, 283 (33 Atl. 925). May 29, 1915 (St. 1915, p. 921). A petition generally held that where one municipal corAccordingly, it is signed by the requisite number of qualified poration is annexed to another the annexing electors within the territory proposed as that city takes over the functions of the annexed of the contemplated district had been duly fil- municipality, and the latter by virtue of the annexation is extinguished, and its property, powed. The real property of the taxpaying plain- ers, and duties are vested in the corporation of tiffs is within this territory. The district, as which it has become a part. 28 Cyc. 217; Mt. outlined in the petition, includes lands not Pleasant v. Beckwith, 100 U. S. 514, 528 [25 now within any municipality, as well as the L. Ed. 6991; Adams v. Minneapolis, 20 Minn. 484 (Gil. 438); People v. Supervisors. 94 N. territory of three incorporated cities, San Die- Y. 263; Stroud v. Stevens Point, 37 Wis. 367; go, East San Diego, and La Mesa, and that Schriber v. Langlade, 66 Wis. 616, 29 N. W. of one irrigation district known as La Mesa, 547, 554. If this be true where one of two Lemon Grove, and Spring Valley irrigation municipal corporations having co-extensive powers is annexed to another, the same result must district. The plaintiffs alleged in their plead- follow a fortiori where a public corporation having that by the calling and holding of the ing powers more limited than those of a municielection certain of their constitutional rights pal corporation is annexed to a city which possesses all of the powers of the corporation would be violated. To their complaint a which has been annexed to it and others in addidemurrer was interposed and was overruled tion." by the court. The supervisors and county clerk refusing to plead further, judgment was accordingly entered. By it the plaintiffs were given the injunctive relief for which they had prayed. From said judgment this appeal is taken.

[1] Respondents set forth in their complaint and here contend that the act of the Legislature under which the petitioning electors proposed to organize the district was in violation of section 19 of article 11 of the Constitution of California. That section provides that:

"Any municipal corporation may establish and operate public works for supplying its inhabitants with light, water, power, heat, transportation, telephone service or other means of communication. *A municipal corporation may furnish such services to inhabitants outside its boundaries; provided that it shall not furnish any service to the inhabitants of any other municipality owning or operating works supplying the same service to such inhabitants, without the consent of such other municipality, expressed by ordinance."

It is their contention that since the three cities mentioned above (each being vested with the power of furnishing its inhabitants with water) are included within the limits of the proposed district, there would be necessarily an intolerable clash of authority between the governing bodies of these municipalities and the trustees of the water dis

This declaration is by no means decisive of the problem presented by the appeal now before us. Indeed, it is of little value, for it is not, as is the complaint herein, based upon constitutional grounds at all. In the next paragraph of the opinion the following language is used:

"These rules do not rest upon any theory of constitutional limitation. In the absence of any constitutional restriction, the Legislature has absolute power over the organization, the dissolution, the extent, the powers, and the liabilities of municipal and other public corporations established as agencies of the state for purposes of local government. In re Madera Irrigation District, 92 Cal. 296, 27 Am. St. Rep. 106, 28 Pac. 275, 675 [14 L. R. A. 755]. What shall be the effect of the enlargement or diminution of the boundaries of such corporations, or of the consolidation of two into one, or of the annexation of the territory of one into another, is a question to be answered by a determination of the legislative intent. The cases above cited declare the result of such action under laws which do not show affirmatively an intent to continue the existence of two separate public corporations within the same territorial limits."

In the statute before us the legislative intent is declared in plain language. The second section of the original act is as follows:

"The people of any county or portion of a county, whether such portion includes unincorporated territory or not, in the state of California, may organize a municipal water district under the provisions of this act by proceeding

The corresponding section of the amending | do not discover that section 19 of article 11 act approved December 24, 1911, is as fol- contains any constitutional inhibition upon lows: such legislation.

indebtedness of the county within which they | appear bad upon its face, and proceeds thereon reside. according to law, is usually held to be conclusive lateral attack." of the sufficiency of the petition against any col