Section 67 provides that the review thereby authorized shall not extend further than to determine whether the commission "has regularly pursued its authority," but adds that the review may include the question whether the decision of the commission "violates any right of the petitioner under the Constitutions" of California and the United States, respectively. In view of our conclusions on the merits presently to be considered, we find it unnecessary to determine or discuss the question whether this additional clause enlarges our powers in certiorari, upon which the court has hitherto been equally divided. See Pacific T. & T. Co. v. Eshleman, 166 Cal. 651 and 692, 137 Pac. 1119, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915C, 822, for the opposing views on this point. There is also a provision excluding questions of fact from review. Notwithstanding this, however, the law remains that, when a finding or conclusion of fact is based on uncontradicted evidence, its accuracy usually becomes a mere question of law, and in that event the question may be reviewed if it goes to the jurisdiction. With this preliminary statement we proceed to consider the objections to the proceedings. tial element of judicial power, distinguishing | mission had exceeded its authority. Section it from legislative power, is that it requires 47, however, refers to section 67 of the Public "the ascertainment of existing rights." Peo- Utilities Act. ple ex rel. Dean v. Board of Supr's of Contra Costa County, 122 Cal. 424, 55 Pac. 131. "It is not to be disputed that, as a general proposition, the judicial function is the determination of controversies between parties." Title, etc., Co. v. Kerrigan, 150 Cal. 319, 88 Pac. 356, 8 L. R. A. (N. S.) 682, 119 Am. St. Rep. 199, 11 Ann. Cas. 465. See, also, Robinson v. Kerrigan, 151 Cal. 47, 90 Pac. 129, 121 Am. St. Rep. 90, 12 Ann. Cas. 829; Sinking Fund Cases, 99 U. S. 761, 25 L. Ed. 504; 23 Cyc. 1620. "A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end." Prentis v. Atlantic, etc., Co., 211 U. S. 226, 29 Sup. Ct. 67, 53 L. Ed. 150. "The Legislature may determine what private property is needed for public purposes; that is a question of a political and legislative character; but, when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through Congress or the Legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry." Monongahela Navigation Co. V. United States, 148 U. S. 327, 13 Sup. Ct. 622, 37 L. Ed. 463. In the present case a controversy exists between the public corporation desiring the property and the private owners thereof conducting the public utility concerning the compensation to be paid to such owners for the property when it is taken by the public corporation. The initiation of the proceeding before the commission necessarily raises that controversy, if it did not exist before, and presents it for decision. Its determination establishes the right and obligation of the parties, respectively, in the expected action in eminent domain, the right of the owners to receive and the obligation of the public corporation to pay the sum fixed as compensation for the property if it is taken. It comprises an essential part of the action; it conclusively determines one of the facts to be determined therein for the purposes of that action. It is, to that extent, as much an exercise of judicial power, as above defined, as is the judgment of the court in the action to condemn the property. [4] The functions of the commission being judicial, the Supreme Court would have had jurisdiction in certiorari to review its final decision in the proceedings without the express grant of such jurisdiction in the act itself. Const. art. 6, § 4; Code Civ. Proc. § 1068. The jurisdiction derived from the Constitution and from the Code of Civil Procedure, under the well-established rules, could extend only to the inquiry whether the com [5] At the hearing objection was made to Wells to testify as a witness on the subject the action of the commission in calling W. N. of the values of the several properties. He was sworn and testified at the instance and request of the commission and against the [6] It is also contended that Wells was an incompetent witness on the subject, and hence that the commission went beyond its power in considering his testimony. We think he was shown to be competent. He was regularly examined and cross-examined at great length as to his knowledge of the subject. His testimony showed that for the purpose of forming an opinion as to its value he had viewed and examined all the property with care and had made exhaustive inquiries regarding the previous sales of property of similar character in the vicinity and of the different uses to which the properties in question were adapted. He appears to have fol lowed substantially the same course in arriv-1 ing at his opinions that was adopted for that purpose by the expert value witnesses called by the petitioner. See Spring V. W. W. v. Drinkhouse, 92 Cal. 535, 28 Pac. 681; Vallejo, etc., Co. v. Reed Orchard Co., 169 Cal. 574, 147 Pac. 252. In our opinion, the commission did not exceed its authority in considering the testimony of such a witness together with the other evidence produced before it bearing on the question of use and value. In view of these conclusions, we find it unnecessary to consider how far the commission is bound by the rules of evidence and procedure in courts of law. It did not, in these particulars, transgress those rules. [8] The company claims that by means of additional dams the amount of water stored on its land annually could be greatly increased, that these possibilities of future advantage largely increased the value of the property, and that the commission did not allow anything therefor. We do not think this claim is sustained by the record. The commission refused to make a separate statement of the value of these future possibilities, but it appears that it did allow a value for the potential storage of storm water on the land by giving it a present additional value because of that fact. Although the expert witnesses for the petitioner adopted a different method, they practically arrived at [7] The principal objection to the testimony the same result. They estimated the run-off of Wells relates to his method of valuing and storage and probable expense of storage, the lands belonging to the petitioner from distribution, and sale, the probable selling which water could be obtained. These lands price, capitalized the net profit, and added are mountainous, and so situated that the the present value of the result to the value annual rainfall thereon may be convenient- of the land as estimated apart from its value ly collected, stored on the land, and thence for water. While the values were larger than those given by the commission, the principle is the same in either case if the valuation is honestly made. distributed and sold to consumers. There was evidence tending to show the average annual rainfall upon these lands, the quantity thereof that could be annually collected and stored, and the selling price paid by the consumers. Wells did not give this advantage of water storage a separate value, but As witnesses for the municipal water district [9] It appears from the record that the fixed certain values for the property in controversy, that the witnesses for the power merely added it to the land value and reported it all as one item. company also fixed certain somewhat differThe commission appears to have believed that separate values ent values therefor, and that the value as fixcould not be given to the land and water re-ed by the commission falls below that fixed spectively, basing its opinion upon the propby the witnesses on either side, and corre osition that water which falls upon the sponds more nearly to the values fixed by ground as rain and runs off into the reser- the witness Wells. This, they say, is a devoir as surface water does not constitute a cision outside of the issues, upon evidence legal water right. We think this is no rea- which neither party offered, and is upon a son for saying that the two elements of value controversy which neither party submitted could not be separately estimated, or that to the commission for its consideration. We there is any distinction in this respect be- do not so understand the law. Wells testified tween the added value to the land by reason in the presence of the parties, and was duly of the water privilege from this cause and examined and cross-examined by them. the added value which land may have by heretofore stated, this constituted legal evireason of a riparian right or a right appurte- dence upon the issue as to the value of the nant in a stream. Whether it is properly a property in controversy. The commission water right or not is immaterial. The fact was not bound to limit itself to the testimony that water can annually be obtained there- of the witnesses offered by the respective from for sale is the material element for con- parties, but had the power to take the other sideration. Both the commission and the evidence produced at the hearing. We need witness, however, did consider this element not inquire concerning the additional point and gave the land additional value on that that the commission claimed that, under secaccount. There can be no doubt that this tion 70 aforesaid, it was "empowered to resort element of the value of land is as much the to any other source of information availaproperty of the landowner as any other ele- ble," including evidence not introduced at ment which gives it value. So far as the the hearing. Some remarks in its opinion incommission appears to have held that it was dicate that the commission may believe that not a property right, it was in error, but, in- it has that power. But it did not exercise asmuch as it did give the additional value it in this proceeding. It considered only the to the land, it is immaterial whether the evidence actually produced. commission, in allowing this element of value, styled it a technical water right, or a mere advantage of water storage giving additional value to the land. The refusal to give it a separate value would not deprive the commission of jurisdiction or make its award It is not to be supposed, from what has been said, that the objections we have considered would, if well taken, operate to avoid the award of compensation. It may be that they are matters not going to the jurisdiction, and hence not reviewable in cer on their merits. As we find them not well taken, the question whether or not they would invalidate the proceeding becomes immaterial. * [10] Further objection is made on the ground that the commission did not find separately the value of each separate parcel of the property of the water company. Section 47 requires the commission to "proceed to fix and determine the just compensation * in the manner and in accordance with the provisions of section 70." Section 70 provides that it "shall make and file its findings of fact in writing upon all matters concerning which evidence shall have been introduced before it which in its judgment have any bearing on the value of the property." Evidence was given showing separately the value of the respective parcels. Section 47 also provides that after the filing of the petition, and before payment of the compensation fixed, the commission may be required to find the amount of an alleged unreasonable depreciation in value, to be deducted from the compensation allowed; also that it may be called on to fix the amount the owner may have had to expend to preserve the property after the final judgment of condemnation and before payment, to the end that the owner may be reimbursed such amount. In fixing these amounts it might be found convenient to have the parcels separately valued. But, however, this may be, we do not think the failure to make such detailed findings causes a loss of jurisdiction or makes the proceeding void. It is admitted that the commission acquired full jurisdiction. When once it is made to appear that a court of limited jurisdiction has acquired jurisdiction of the parties and of the subjectmatter, the same presumptions as to subsequent proceedings apply as with respect to courts of general jurisdiction, and subsequent irregularities do not make its judgments void. Van Fleet on Collateral Attack, § 806; Long v. Burnett, 13 Iowa, 28, 81 Am. Dec. 420. In such a case "jurisdiction cannot be lost by the erroneous exercise of the power conferred." Brown on Jur. § 25. Section 70 leaves it to the discretion of the commission to determine whether or not it I will make detailed findings. It is not declared to be mandatory. At most, the making of a general finding is but an irregularity. If the parties have any remedy when injured by such failure, it is by mandamus, not certiorari. It does not go to the jurisdiction. If the undisputed evidence had shown that the property had a special additional value, as, for example, that by reason of the situation and topography of a parcel of the land a quantity of water could be annually caught, stored thereon, and sold at a profit, and that the commission had refused to allow such value, as a part of the compensation fixed, it may be conceded that this would have been a deprivation of property without due process of law, a disregard of the petitioner's right to just compensation, and therefore a violation of both the federal and state Constitutions. Appleby v. Buffalo, 221 U. S. 524, 31 Sup. Ct. 699, 55 L. Ed. 838; Chicago, etc., Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979; Davidson v. New Orleans, 90 U. S. 102, 24 L. Ed. 616; Backus v. Fort St., etc., Co., 169 U. S. 557, 18 Sup. Ct. 445, 42 L. Ed. 853; McGovern v. New York, 229 U. S. 363, 33 Sup. Ct. 876, 57 L. Ed. 1228, 46 L. R. A. (N. S.) 391. We do not find that the commission did thus refuse to allow an undisputed value, and therefore the argument founded on the above-stated proposition must fall. With respect to the contention that the commission did not allow the value of the water in storage at the time of the award, it is sufficient to say that our attention has not been directed to any evidence of such value, nor of the quantity in storage. It is difficult to see how it could be valued, under the circumstances. It was the store for daily use, and the quantity would change from day to day. The time when the water district would take possession of the plant could not be foretold. It seems difficult to fix such compensation except by finding the value per gallon and directing a measurement at the time of the transfer of possession. But this question is not now before us, and we express no opinion regarding it. The proceedings and determination of the Railroad Commission are affirmed. We concur: SLOSS, J.; HENSHAW, J.; MELVIN, J.; LAWLOR, J. The CHIEF JUSTICE took no part in the consideration of this cause, and does not participate in the decision. (29 Cal. A. 153) BANK OF BAKERSFIELD v. CONNER et al. (Civ. 1769.) (District Court of Appeal, Second District, California. Dec. 13, 1915. Rehearing Denied by Supreme Court Feb. 10, 1916.) 1. PAYMENT 22-CHECK-PERFORMANCE OF CONTRACT-CERTIFICATE OF STOCK." A contract for the purchase of shares of stock in a bank which acted as the seller's agent in the transaction provided that upon payment to such agent payment would be deemed sufficiently made, and when payment was due the buyer delivered to the bank, payable to it or bearer, a certified check for the price, which on the same day was delivered by the bank without indorsement to the seller. Held, in an action on the check, that it was given in payment, and not in tender of payment, and that the maker was liable thereon because he became and payment, and was entitled to compel dethe owner of the shares upon their identification livery of a certificate therefor; a "certificate For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of stock" not being the stock itself, but merely as executrix has demanded payment thereof. evidence of its title. [Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 87, 88; Dec. Dig. 22. For other definitions, see Words and Phrases, First and Second Series, Certificate of Stock.] 2. EVIDENCE 459 - PARTIES TO CHECK PAROL EVIDENCE. The defendants were required to interplead herein for the determination of their adverse claims in the premises. A judgment having been entered in favor of the executrix, the defendant Planz has appealed therefrom and also from an order denying his motion for a new trial. On July 21, 1908, an agreement in writing was entered into between C. L. Conner and one H. A. Blodget, whereby, in consideration of the sum of $5 in hand paid, Conner agreed to sell and deliver to Blodget, his nominee or assigns, 50 shares of the capital stock of the Kern Valley Bank, a corporation, upon the Where, under a contract of sale of stock, a bank is agent for the seller to receive payment, and a certified check for the price, payable to it or bearer, is delivered to it by the buyer and received by it as such payment, parol evidence is inadmissible in an action on the check to show that the word "bearer" was left therein by mistake and that the check was intended for the bank itself and not for the seller. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1722, 1906-1910, 2109-2114; payment of the sum of $3,799.66 on or before Dec. Dig. 459.] 3. CORPORATIONS 121 SHARES-ACTIONS-EVIDENCE. TRANSFER OF In such a case, evidence of the bank's delivery of the check to the seller is admissible. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 504, 505; Dec. Dig. 121.] 4. APPEAL AND ERROR ERROR. 1050-PREJUDICIAL The admission of such evidence, if erroneous for immateriality, is harmless. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.] Appeal from Superior Court, Kern County; J. W. Mahon, Judge. Action by the Bank of Bakersfield against Sarah L. Conner, as executrix of the last will of C. L. Conner, deceased, and G. J. Planz, to determine their rights to a sum of money, deposited with it, and for which the executrix held Planz's certified check. Defendants were required to interplead, and, from a judgment for the executrix and an order denying Planz's motion for a new trial, he appeals. Affirmed. E. L. Foster, of Bakersfield, for appellant. C. C. Cowgill, of Sonoma, and Peter A. Breen, of San Francisco, for respondent. The check was payable to the Kern Valley Bank or bearer. Immediately thereafter defendant Planz delivered the check to the July 21, 1909. It was agreed that upon payment to Conner on or before July 21, 1909, of the sum of $281.45, the time for payment of said larger sum should thereby be extended to, and the delivery of said stock extended to, July 21, 1910. It was agreed: "That payment shall be deemed to be sufficiently made to said C. L. Conner by payment to the Kern Valley Bank for account of C. L. Conner of either of the sums above specified. And the said fifty (50) shares of said stock of the said Kern Valley Bank shall, upon payment made as hereinbefore provided, be delivered, on demand, to the said H. A. Blodget, his nominee or assignee. together with all dividends that may be declared and paid on said shares of stock during the life of this agree ment.' On July 21, 1909, Blodget paid the sum required for extending the time of final payment to July 21, 1910, and on July 19, 1910, sold, assigned, and transferred to G. J. Planz "all my right, title and interest in and to the within and foregoing contract and the capital stock of the Kern Valley Bank, viz., fifty (50) shares thereof, therein described." Thereafter Planz delivered his certified check as hereinabove stated. [1] The court found that said check was paid to the Kern Valley Bank for the account of C. L. Conner and was accepted by that CONREY, P. J. On July 21, 1910, the de-bank for the account of C. L. Conner as and fendant G. J. Planz drew his check upon the in full payment of the purchase price of said Bank of Bakersfield for the sum of $3,799.66 50 shares of stock. Under his specifications and caused it to be certified by that bank. of insufficiency of the evidence to justify the findings, appellant claims that the evidence does not show his delivery of the check for Kern Valley Bank, and on the same day the the account of Conner or as payment on the cashier of that bank delivered the check, contract, but claims that it was merely a without indorsement, to C. L. Conner. Con-of the shares of stock. In our opinion, the tender of payment conditioned upon delivery ner died at some time between September, 1910, and March, 1911, and the check in evidence fully justifies the finding as made. In his testimony defendant Planz himself question came into the possession of the desaid: fendant Sarah L. Conner as executrix of his last will and testament. The plaintiff, the Bank of Bakersfield, filed its complaint herein showing that it holds and has in its possession money deposited with it by defendant He further testified that on July 23, 1910, Planz sufficient to pay said check; but also he demanded of Conner a transfer of the 50 that the defendant Planz gave notice and in- shares of stock, and that Conner refused this struction to the plaintiff to refuse payment demand and said that, if Planz would delivof the check, and that the defendant Conner er back to the Kern Valley Bank the receipt "On July 21, 1910, under the contract, ** * * I gave the Kern Valley Bank $3,799.| 66. I paid it with my certified check on the Bank of Bakersfield." which that bank gave him, they would give him the money back or the check. On August 6, 1910, Planz filed a complaint in the superior court of Kern county against Conner and the Kern Valley Bank to enforce his demand for delivery to Planz of the 50 shares of stock to which he claimed to be entitled under the agreement with Blodget which had been assigned to him. In that complaint, verified under his oath, the plaintiff therein said that he had made the before-mentioned payment of $3,799.66 to the Kern Valley Bank for the account of C. L. Conner, and that "the said Kern Valley Bank, a corporation, received the sum of money for the account of C. L. Conner and now has the said sum of money in its possession and under its control for the account of C. L. Conner." The same statement was repeated in an amended complaint. To that complaint a demurrer was filed, and it appears that the action was pending without any other proceedings having been had therein at the time of the trial of the case now before us. [2] Defendant Planz in his answer states that the certified check was by mistake made out to bearer. At the trial he was asked to state why the word "bearer" was left on the check, or whether he intended that it should be left on the check at the time when he made it. The court sustained an objection that the question was irrelevant, incompetent, and immaterial and an attempt to vary the terms of the written instrument by parol in the absence of any appropriate pleadings for reforming the instrument. It is now urged on this appeal that this ruling was erroneous, because it prevented appellant from showing that he was paying the money to the Kern Valley Bank and to no other person, and from showing that he had intended case as made by the record. He refers us to authorities holding that refusal to perform a contract constitutes a rescission. Assuming that in some instances this principle would be applicable, we have here a case in which the purchaser, even though he had a right to claim a rescission, elected to continue his demand for performance of the contract and bring an action for that purpose. Therefore appellant is unable to recall the payment made by him, even if, as he contends, under the terms of the contract the obligation of the seller to deliver the goods and of the buyer to pay the price were concurrent conditions. The shares of stock were identified the price agreed upon was paid, and thereby Planz became the real owner of the shares. He was in a position which entitled him to compel the delivery to him of a certificate of stock. Certificates of corporation stock, it should be remembered, are not the shares, but are merely evidence of title. [3, 4] Exception is taken to the court's ruling in allowing the cashier of the Kern Valley Bank to testify that on the same day when the certified check was received at that bank he delivered it to C. L. Conner. If this evidence was immaterial, the only reason would be that payment had been completed when the check came into the hands of the bank as Conner's agent. We see no error in the ruling, and at all events it would be without prejudice to any right of appellant. The judgment and order are affirmed. (29 Cal. A. 131) (Civ. 1578.) KEITH v. HAMMEL, Sheriff. (District Court of Appeal, Second District, Cal ifornia. Dec. 7, 1915.) 1. MANDAMUS 154-SUFFICIENCY OF PETI TION-FEES OF COUNTY OFFICER. to strike out by drawing a line through the word "bearer." We think that the ruling was correct. Under the contract the Kern Valley Bank was agent of Conner for the A taxpayer's petition against the sheriff of purpose of receiving payment of the sum spec- a county for a writ of mandamus to compel the ified in the check. It is not claimed that sheriff's payment into the county treasury of the bank was aware of any mistake in the all fees collected by him as sheriff during three or four months, notwithstanding its insufficiencheck or informed that it did not fully ex-cy as to mileage, etc., claimed by the sheriff unpress the intention of the maker. Whether made payable to the order of the Kern Valley Bank or made payable to that bank or bearer, it was equally capable of being received and used for the purposes of the transaction. The specifications of insufficiency of the evidence, although not in the usual form and in some instances perhaps not legally sufficient, will be considered as sufficient to raise the only other important question in the case, which is whether the evidence justified the court in finding that Conner was the owner of the check, and that it is now the property of the defendant Sarah L. Conner as executrix, etc. On this phase of the case, it seems to us that appellant is relying upon propositions which are not applicable to the der the county charter and Pol. Code, § 4290, yet in view of other fees which the sheriff must collect and pay into the county treasury under sections 4300b and 4300c and its allegation that the sheriff had collected and appropriated to his own use $3,000 in fees belonging to the county, was good as against a general demurrer. Cent. Dig. §§ 296-316; Dec. Dig. 154.] [Ed. Note.-For other cases, see Mandamus, 2. SHERIFFS AND CONSTABLES 71 TION AGAINST PARTY PLAINTIFF-TAXPAYER-STATUTE. Ac Code Civ. Proc. § 526a, permits a taxpayer's action against public officers to restrain certain described illegal expenditures of county funds, not to affect any right of action in favor of a county or any public officer; Pol. Code, § 4041, subd. 16, gives boards of supervisors juriswhich the county is a party; Los Angeles Coundiction to direct the prosecution of all suits in ty Charter (St. 1913, p. 1490), § 21, declares that the county council shall have exclusive For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |