Where petitioner voluntarily submitted to imprisonment from which he seeks to be discharged for the purpose of presenting in the haWAIT v. SUPERIOR COURT IN AND FOR lidity of an order holding him to answer, the beas corpus proceeding the question of the vaSACRAMENTO COUNTY et al. petition will be dismissed.

(District Court of Appeal, Third District, Cali- son for a writ of habeas corpus. Denied. fornia. Nov. 19, 1917.).

MANDAMUS 16(1)-Moor QUESTION-PETI-
TION FOR MANDAMUS-DISMISSAL.

On petition for a writ of mandate to compel the superior court to grant petitioner's application to be allowed to prosecute his action in forma pauperis, where it appears that since the proceeding was commenced the lower court had granted a jury to petitioner in accordance with his application, the question is moot, and the petition will be dismissed.

Petition for writ of mandate by Charles T. Wait against the Superior Court of the State of California in and for the County of Sacramento and Hon. Chas. O. Busick, Judge.

G. H. P. Lichthardt, and Chester F. Gan- Upon the authority of In re Gow, 139 Cal. non, of Sacramento, for petitioner. Lester 242, 73 Pac. 145, Ex parte Schmitz, 150 Cal. J. Hinsdale, of Sacramento, for respondents. 663, 89 Pac. 438, and Ex parte Ford, 160 Cal.

334, 116 Pac. 757, 35 L. R. A. (N. S.) 882, Ann. | policy of insurance issued by them. SubseCas. 1912D, 1267, it is ordered that the pro-quent to the passage of this act, and on the ceeding be, and it is hereby, dismissed, and petitioner is remanded to the custody of the sheriff.

MACHADO v. ELLISON et al. (Civ. 2090.) (District Court of Appeal, First District, California. Nov. 19, 1917. Rehearing Denied

by Supreme Court Jan. 17, 1918.)

1. CONSTITUTIONAL LAW 154(3)-OBLIGATION OF CONTRACTS-RIGHT TO NAME BENEFICIARIES.

Fraternal Act 1911 (St. 1911, p. 1320), limiting the class who may be beneficiaries under insurance policies, does not violate the Constitution, prohibiting laws impairing the obligation of contracts, though it regulates future designations of beneficiaries under certificates previously issued.

2. INSURANCE

587 - BENEFIT SOCIETIES

--

BENEFICIARIES. Fraternal Act 1911, limiting the class who may be beneficiaries, is constitutional, and applies to a designation, after it became effective, of a successor to a deceased beneficiary under a certificate issued before the enactment. Appeal from Superior Court, Alameda County; William M. Finch, Judge.

17th day of July, 1912, the beneficiary named in the policy died, and Silveira thereafter designated Jose R. Neto, a son of the original beneficiary, and the assignor of the respondent herein, as the beneficiary in said policy. In May, 1914, Silveira, the insured, died, and this action was brought by plaintiff as the sole heir at law of Silveira, claiming title as such to the proceeds of the policy.

Judgment was rendered in favor of the assignee of the beneficiary named, and from this judgment plaintiff appeals.

[1] The main question presented by the appeal is the effect of the Fraternal Act of 1911 upon the rights of a member of a benefit society whose policy was issued prior to the time the statute went into effect, to change his beneficiary after such time, contrary to and in contravention of the terms of the statute.

The contention of appellant is that, as the act limits the class of persons who can legally be designated, and the selected beneficiary having been nominated after the act Action by Antone Manuel Machado against became operative and admittedly one not the Conselho Supremo da Unuias Portugeza within such class, that there was no legal do Estado da California, in which W. H. El-designation by the insured, and the proceeds lison and another were interpleaded. From of the policy should be paid to plaintiff as a judgment for said Ellison, plaintiff ap- the next of kin and only heir at law of the peals. Reversed.

KERRIGAN, J. This action was originally brought by the sole heir at law of one Theodore Silveira to recover from the Conselho Supremo da Unuias Portugeza do Estado da California, a fraternal and benefit society, the amount due under a certificate of insurance issued by it. The society admitted liability, but, being in doubt as to the person to whom the fund belonged, respondent and his codefendants were interpleaded, and on payment into court by the society of the sum of $1,200, the net amount due on said policy, it was discharged from liability as to all parties to the action.

insured.

As opposed to this contention respondent argues in support of the judgment that, as there is no language in the act showing that it was intended to have a retroactive effect or operation, it should be construed prospectively so as not to restrict the vested right of unlimited selection possessed and enjoyed by members who had contracted with the society prior to its passage; that such right of unrestricted selection in the beneficiary that might be made in the future was one of the considerations entering into the contract; that it was a material and vested one, valid at its inception, and one that could not be destroyed or taken away by the Legislature, and any attempt so to do makes it violative of those sections both of the state and federal Constitutions, providing that the Legislature or Congress shall pass no laws impairing the obligations of a contract.

The conflicting claims to the fund arose in the following manner: In November, 1894, Theodore Silveira became a member of the We do not think that the application of above-named society, and designated as his the statute to the contract of the insured has beneficiary one J. S. Neto. At that time the effect claimed for it by the respondent. there was no restriction upon the rights of The principle involved is not an entirely new a member to make such designation; there one in this state. In the case of Caldwell v. being no limitation, statutory or otherwise, Grand Lodge, 148 Cal. 195, 82 Pac. 781, 2 as to the class of persons who could become L. R. A. (N. S.) 653, 113 Am. St. Rep. 219, 7 beneficiaries under the policies issued by the Ann. Cas. 356, it was held that, where an society. In 1911 the Legislature passed an insured, on joining a beneficial society, agrees act for the regulation and control of frater-specifically to abide by and conform to the nal benefit societies which, among other by-laws in force at the time, and also to things, limited the class of persons who those that might be subsequently enacted, might be named as beneficiaries under a upon the adoption of a by-law limiting his

selection to a beneficiary of a designated and change a beneficiary was a vested right class he was bound by the change, and had of which he could not be deprived by the no right to name one other than in the class Legislature; and it was there held, citing designated. See, also, Wist v. Grand Lodge, the Caldwell Case, that the insured had no 22 Or. 271, 29 Pac. 610, 29 Am. St. Rep. 603. such vested right under his original contract Here the insured agreed at the time he join- which could not be affected by limitations ed the society to so conform to its laws. imposed by a statute subsequently enacted True, the society did not by an express by- requiring designations made thereafter to law at any time impose any limitation or conform to its terms. And it is there furrestriction upon the insured in the selection ther held that such a statute is not retroacof his beneficiary. It is not contended, how-tive in its operation, but rather relates to ever, by respondent, nor could it be, that if the society had adopted a by-law in conformity with the statute the rule laid down in the Caldwell Case would not apply. The only distinction, therefore, between the case last cited and the instant one is that here the insured was restricted by the terms of a statute, whereas in the Caldwell Case he was limited by the adoption of a by-law.

Upon principle we see no difference between the two cases. If an insured is bound in the manner indicated in the Caldwell Case by reason of his express agreement, he is at least equally bound by a statutory enact ment he is required to obey. The by-laws of a fraternal organization must conform to the Constitution and statutes of the state, and when the statute changes the by-laws must change with them. The statutes, of course, must be reasonable and within the law; but the statute here involved is beyond all question one of that nature, and its character is so declared to be in the Caldwell Case. The contract entered into by the insured was made up of his benefit certificate, the by-laws of the society, and the laws of the state. The statute became an integral part of the charter of the society, and was at least as binding upon the insured and other members when they attempted to change their beneficiaries after its passage as any by-laws that could have been adopted by the order. The fact that there was no limiting statute in existence at the time the insured joined the order can make no difference. The statute does not attempt to disturb members in their original selections; it only affects the issuing of certificates after its passage, and all designations so made must conform to it.

The conclusion we have reached finds support in authority of other jurisdictions. In Grand Lodge of McKinstry, 67 Mo. App. 82, under similar facts it was held that all changes in selection of beneficiaries must conform to a new law, as such change must be considered as an amendment to the charter of every such corporation, and that the right to take must be governed by it. To the same effect is Bush v. Modern Woodmen (Iowa) 152 N. W. 31, where it was contended, as here, that the law in force at the time the insured became a member, and at the time his first certificate was issued, governed the case, and that the right to freely name

and controls the action of the insured at the time of its exercise. We are aware that cases may be found holding a contrary doctrine, but they are not in harmony with the reasoning in the Caldwell Case.

[2] We conclude, therefore, that the act in question applies to all designations made after it went into effect, and that, the beneficiary here named by the insured not being one of the class named in the act, his selection was in contravention thereof, and therefore void, and that appellant, being the only heir at law of the insured, is entitled to the amount due under the policy.

In view of the conclusion we have reached, it becomes unnecessary to discuss other questions relied on for a reversal of the judgment.

The judgment is reversed.

1.

INDICTMENT AND INFORMATION 110(15)— CHARGING IN WORDS OF STATUTES-FRAUD. sufficient for an indictment under Pen. Code, § To charge in the words of the statute is in72, making it an offense for one, with intent to defraud, to present for allowance or payment to a state, county, or municipal board or officer authorized to allow or pay it, if genuine, a false or fraudulent claim; but the circumstances of the offense must be set out. 2. FALSE PRETENSES 30-INDICTMENT — FRAUDULENT CLAIM TO OFFICERS-KNOWL

EDGE.

It is not enough for an indictment under Pen. Code, § 72, for presenting to county supervisors a claim with intent to defraud, to allege the claim was fraudulent, but it must allege or show defendants knew it was fraudulent.

3. FALSE PRETENSES 29- INDICTMENTFRAUDULENT CLAIM TO OFFICERS-AUTHORITY TO ALLOW.

An indictment under Pen. Code, § 72, for presenting for allowance and payment to county supervisors, with intent to defraud, a claim for roadwork, fraudulent in that it claimed for more work than was done, should allege authority to do work on the road was given by one authorized to incur a claim against a county, to show that the claim, if genuine, was one the supervisors would be authorized to allow. 4. FALSE PRETENSES 30-INDICTMENT — FALSE CLAIM-PARTIAL INVALIDITY.

An indictment under Pen. Code, § 72, for presenting to county supervisors with intent to defraud a claim for roadwork containing two

items, one for work by defendant, the other for work by another, each for more days work than either had performed, is bad in toto, being bad as to the item of work by the other; defendant's knowledge of the falsity thereof not being alleged.

Appeal from Superior Court, County; Emmet Seawell, Judge.

Charles H. Butler and C. L. Patteson were indicted. Demurrer to the indictment was sustained, and the People appeal. Af

firmed.

U. S. Webb, Atty. Gen., and J. Chas. Jones, Deputy Atty. Gen., for the People. J. R. Leppo, of Santa Rosa, for respondents.

and taken before the said C. L. Patteson, as such supervisor, who then and there attached his name thereto as said supervisor together with a statement that the said oath was subscribed and sworn to before him, the said C. L. Patteson, the 4th day of May, 1914.

"That in truth and in fact said claim which Sonoma was then and there so presented to said board of supervisors was false and fraudulent in this, that it contained an item for nine days' labor by said Charles H. Butler with a team and wagon at the rate of $4.50 per day, at the price of $2.50 a day for the labor of said Charles H. Butler, and at the price of $2 a day for his team and wagon, when in truth and in fact said team April, employed in roadwork, and did not, durand wagon were not, during the said month of ing said time, perform any roadwork in said district as set forth in said claim or at all, and the charge of $2 a day for nine days for said team amounting to $18, and being a part of the total sum of $124.50 for which said claim that said demand and claim also contained an was presented, was false and fraudulent, and, item for six days' labor by L. Kelley and a wagon at the rate of $4 per day, amounting to $24, and which said item was false and fraudulent, in this, that in fact said L. Kelley was so employed by himself and team and wagon for four days only during the month of April, 1916, and that the said charge on account of the services of L. Kelley was for two days in excess of the amount of labor so performed by him and for the sum of $8 in excess of the amount due on account of labor and services performed by said L. Kelley.

CHIPMAN, P. J. Defendants were jointly indicted by the grand jury of Sonoma county for the violation of section 72 of the Penal Code. There are four separate counts in the indictment, and the charging matter or body of the indictment is substantially identical in each count, excepting the amounts therein named. The charging part of the indictment, as set forth in the first count, is as follows:

the clerk of the board of supervisors three days "That said claim so made out was filed with prior to the time of the meeting of said board visors was asked to allow the said claim, and of supervisors, at which said board of superthe said claim was allowed by the said board of supervisors on the 9th day of May, 1916, at a regular meeting of said board, and ordered to be paid out of the road fund of the said Mendocino road district, and all work for which said demand and claim purported to be presented, purported to have been performed under the direction and supervision of the said Charles H. Butler, who was then and there the timethat said L. Kelley before the presentation and keeper and roadmaster of said road district; filing of said claim as aforesaid by an instrument in writing duly transferred and assigned and delivered to said Charles H. Butler his claim against Sonoma county for all services performed in Mendocino road district by him between the 1st day of April, 1916, and the 1st day of May, 1916, and appointed said Charles H. Butler as his attorney in fact to present his claim and to collect and receipt for the samecontrary to the form," etc.

"That the said Charles H. Butler and C. L. and in the said county of Sonoma, state of CalPatteson on or about the 4th day of May, 1916, ifornia, did willfully and unlawfully and feloniously, with intent to defraud, and with the intent to defraud Sonoma county, present for allowance and payment to the board of super visors of Sonoma county, who were then and there duly authorized to allow and pay the same, if genuine, a false and fraudulent claim, bill, account, voucher, and writing, and which said claim was in writing, and was a demand of Charles H. Butler on the treasury of the county of Sonoma, state of California, for the sum of $124.50 for roadwork performed on the public roads in Mendocino road district in said Sonoma county during the month of April, 1916, and which said demand purported to be for roadwork upon the public roads in said road district performed at the request and pursuant to the direction therefor by Charles H. Butler, who was then and there, and at all times herein mentioned, the roadmaster of said road district and the employé, agent, and servant of said C. L. Patteson, as supervisor, and said Patteson was then and there and at all times herein mentioned the duly elected, qualified, and acting supervisor of the fourth supervisorial district of Sonoma county, in which said road district was and is located; that said claim and demand was itemized and gave names, dates, and services rendered, and character of work done, number of days engaged, and price per day of the services of each man employed in the performance of said roadwork for which said demand and bill was presented, and that said claim was duly verified to be correct by the affidavit of Charles II. Butler, and annexed thereto in writing, in and by which said oath said Charles H. Butler, after being first duly sworn, deposed and said that the work mentioned in said claim was of the nature and was performed by the persons and at the time specified therein in each case, and no part thereof had been paid, and that said labor was performed under his direction as timekeeper, and that the report thereof covered all work performed under his direction for the time covered by the said claim, and that cach of the claims within said demand and claim was presented within one year after the last item thereof accrued, and which said oath was

Section 72 of the Penal Code is as follows: "Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town, city, ward, or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of felony."

The defendants interposed a demurrer to each count of the indictment on various grounds, general and specific, and on which it was alleged in the demurrer that the indictment does not specifically conform to the requirements of sections 950, 951, 952, and 954 of the Penal Code, or to either of said sections; that the facts stated in said indictment do not constitute a public offense; that neither of said counts contains a statement

by; nor is either of said counts direct or certain in its terms regarding the offense; nor is either of said counts certain or direct "as regards the particular circumstances of the offense." The demurrer also sets forth a number of matters alleged to be essential to a good indictment which are not stated or alleged in any of said counts. The demurrer also sets forth a number of matters and things as to which each count of the indictment is uncertain.

ordinary and concise language or in such and in the said county of Sonoma, state of Calmanner as to enable a person of common un-ifornia, did willfully and unlawfully and federstanding to know what is intended there- loniously, with intent to defraud, and with the intent to defraud Sonoma county'- To stop there would be pleading the offense in the language of the statute, but the pleader goes on and undertakes to set up the particular acts which constitute the crime. In the transaction is brought a man by the name of Kelley, and who, I presume or assume, was acting under authority of Mr. Patteson, the supervisor, although that is not positively alleged, that he of either Butler or Patteson, as supervisors. was acting under authority and by direction There is no allegation that Patteson or Butler knew the claims presented to the board of supervisors were false and fraudulent. That, in my judgment, is absolutely essential. I have taken notice of all of the indictments of all the states that I have examined where the language is very much like ours. In some states the statute includes the word 'knowingly.' In our statute the word 'knowingly' is not set out. In this indictment it is simply alleged that Patteson and Butler both presented a claim to the board of supervisors, which claim was fraudulent. That would not be an offense. They must have the knowledge of the fraudulency of the claim or demand. That is elementary, and that is the matter that has been uppermost in my mind since I first heard this indictment read about two weeks ago. I think that is fatal. I am satisfied it is fatal.

After argument and submission of the demurrer, the court made the following order: "It is the order of the court that the demurrer be sustained to each and every count of the indictment. The court directs the case to be submitted to the present grand jury. This matter has been a long drawn out affair, brought about by events over which no one had control. The court suggests that the grand jury be convened at once, and this matter presented to them in order that it may be determined."

[1-3] The district attorney took exception to the ruling of the court sustaining the demurrer "and the ruling made by the court in connection therewith," and gave notice of appeal therefrom. By request of the district attorney and order of the court, the phonographic reporter transcribed, among other documents, those portions of the notes taken of the oral opinion pronounced by the court "embodying the decision and opinion of said court sustaining the demurrer of defendants to the indictment." As we find ourselves in agreement with the learned trial judge, we take the liberty of quoting certain parts of his opinion:

"The claim has been made that the indictment does not state a criminal offense. That is one matter that attracted my attention upon the first reading of the indictment, and that has been with the court a very grave question for consideration. Whatever ruling the court makes upon this indictment is not made upon technical grounds. It is based on what I understand to be broad and substantial grounds, as defined by the courts of California and of all of the states of the Union.

"It is established beyond controversy, in the case of People against Mahony, 145 Cal. 104 [78 Pac. 354], that in an attempt to charge an offense under section 72 of the Penal Code of this state, it is not sufficient that you allege it in the language of the statute. Being in line with all cases in which fraud and deceit is involved, there must be a statement of the facts, and from such statement of facts an inference or a conclusion must be reached which is, of course, a question of law. In the case of People v. Carolan, 71 Cal. 195 [12 Pac. 52], our Supreme Court held it was sufficient to charge the offense in the language of the statute. In the later Mahony Case Justice Angellotti, writing the opinion, held that it was not sufficient to charge in the language of the statute, but that the circumstances of the of fense must be set out. That, of course, has been the law ever since, and it is the law to-day. "The particular matter that suggested itself to the court as possibly being sufficient is this: "That the said Charles H. Butler and C. L.

"The next defect in the indictment is that

this work was done on the public highway. to do work on the public highway in front of Of course, it would not be any crime for a man his house and present a claim to the board of supervisors and ask for the payment of that claim. The decisions have repeatedly held, and the statute itself is sufficient on the subject, that the claim must be such a claim as, if genuine, would be authorized to be paid under the law and be such a claim as the board of supervisors could pay. In other words, if I were to present a claim for bounty on squirrels, and there is no ordinance of the board of supervisors authorizing the payment of such bounty, that would not be a criminal offense under the statute. Some of these questions have been passed on so often that it is hardly necessary to enumerate them, but I do so in going through this matter briefly, if not as thoroughly as I would like to.

"There should be an allegation in the indictment that Butler and Kelley, who also, it would seem, did work upon the highway, were acting under the authority of Patteson, who is the supervisor, and were authorized to incur a claim against the county. In my judgment, those two points are unanswerable and controlling in this case.

"In reference to section 72 of the Penal Code, there have been but three cases that have gone to the Supreme Court of our state. One is The People against Carolan, in the 71st California. The next is People against Mahony, in the 145th California; and the next is People against Lantorman, 9th California Appellate, 675 [100 Pac. 720]. Dr. Lantorman was the coroner of the county of Los Angeles. That case was reversed after conviction. It was reversed on the ground of failure to state an offense. It was permissible under the law of the state for the coroner to collect his necessary traveling expenses when traveling without the county. He filed his claim for $8.40, which, I infer from the decision, was perhaps morally an illegal claim, and should have been disallowed. Whatever that particular fact may be, it is not important here. This was the point: He filed, as a private citizen, a claim for necessary traveling expenses without the county. He did not state, nor was it shown in the indictment, that he was the coroner of Los An