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The source of Decker's title was not pleaded. , clusions in the language of the statute, is not A general allegation of ownership of real adequate. Ricketson v. Richardson, 26 Cal. property is all that is required, and under 149. But if the evidentiary facts set forth such allegation any proof tending to establish in the affidavit have a "legal tendency" to the title alleged is admissible.

show the ultimate facts, the order for publica[4] 2. Under section 28 of the act, the pur- tion is sufficiently supported. Rue v. Quinn, chaser must, at least 30 days before he ap- supra; People v. Wrin, 143 Cal. 11, 76 Pac, plies for a deed, serve on the owner of the 646; People v. Norris, 144 Cal. 422, 77 Pac, property, and the occupant thereof, if it be 998; Sharp v. Salisbury, 144 Cal. 721, 78 occupied, a written notice setting forth vari- Pac. 282; Shepard v. Mace. 148 Cal. 270, 82 ous matters. If the owner "cannot be found, Pac. 1046; Roberts v. Jacob, 154 Cal. 307, 97 after due diligence," the notice must be post-Pac. 671. In all of these cases the court uped upon the property. "The person apply- held orders based on affidavits which, in their ing for a deed must file with the street super- statement of facts tending to show the exerintendent an affidavit or affidavits showing rise of due diligen

wing cise of due diligence, were not materially that notice of such application has been giv

stronger than the one here involved. The en, * * *” and if the notice was not

property in question is an unoccupied city lot. served on the owner of the property person

The affidavit states that the affiant made inally, that due diligence was used to find such

quiry of persons residing at two certain adowner. There was no personal service in this

dresses. It is true, as claimed by the appelcase. It is claimed that the affidavit filed by

lant, that it does not appear how near these the purchaser was insufficient to show that

places were to the property in question. But due diligence had been used to ascertain the

it is stated that the occupants of these places whereabouts of the owner.

were "the neighbors nearest said property." The declarations of the affiant in this re

The statement of the affidavit that search had gard were:

been made of "the city directory and the tele. That he had “inquired of Miss Nelson at 857

phone directories" is not very satisfactory, East Adams street and of the occupants of 848 East Adams street for the address or where

in view of the omission to specify the years abouts of Annie L. Tilton, or Annie L. Tilden, for which such directories were issued. But or the owner of said property, and said persons taking the whole affidavit together, we think were unable to give any information relative to the whereabouts of said person, said per

it cannot be said that it is lacking in the sons being the neighbors nearest said property. allegation of facts tending to prove due dili

"That the name of Annie L. Tilden is given gence in seeking to ascertain the whereabouts on the assessment roll as the owner of said prop- of the owner. It is not unreasonable to say erty. "That he has searched the city directory and

that the persons living nearest an unoccupied the telephone directories, seeking to ascertain city lot are likely to know who owns the lot the address and whereabouts of the said Annie and where he is to be found. The affidavit L. Tilton, or Annie L. Tilden, and to find the

held insufficient in Hennessy v. Hall, supra, same affiant has been wholly unable, and that he knows of no other place or person where he

was decidedly weaker than the one now becould learn the address or whereabouts of said fore us. It appeared that the person whom persons.

the affiant had sought to locate was not the "That the property is vacant and unoccupied."

owner of the property at the time of the In Hennessy v. Hall, 14 Cal. App. 759, 762, search, but had parted with all interest there113 Pac. 350, 352, the court said:

in nearly 4 years before. That “to warrant the execution of a deed to It is sought to distinguish Rue v. Quinn, the purchaser and foreclose the owner's right of

supra, and similar cases, on the ground that redernption upon such constructive service, an affidavit must be filed showing, not merely stat

ato in ordering a publication of summons the ing, that due diligence was used to find the court or judge passes upon the sufficie owner."

the affidavit. The requisite facts must “apIn other words, the affidavit must set forth pear by affidavit to the satisfaction of the evidentiary facts which justify the conclu- court or * * * judge." Code Civ. Proc. sion that due diligence was used. In this $ 412. The finding (implied in the making respect the requirement of the statute is not of the order) that a sufficient showing has unlike that of section 412 of the Code of Civil been made will be sustained if the facts alProcedure, authorizing service of summons by leged in the affidavit justify a finding either publication when the person to be served way. Bender v. Hutton, 160 Cal. 372, 117 "cannot after due diligence be found within | Pac, 322. the state * * * and this fact appears by [5] The Street Opening Act, however, does affidavit to the satisfaction of the court or a not in terms empower any one to find the judge thereof." In order to justify publica-existence of the facts which are to be "shown" tion of summons "the affidavit must show two by the affidavit. The street superintendent facts, viz., the exercise of due diligence to (or, in the city of Los Angeles, the board of find the defendant within the state, and a public works, which has, by charter provision, failure to find him after the exercise of such succeeded to the duties of such superintenddiligence." Rue v. Quinn, 137 Cal. 651, 66 ent); is to execute the deed after the filing Pac. 216, 70 Pac. 732. An affidavit which with him of the prescribed affidavit. He is merely states these “ultimate facts,” or con- therefore called upon to determine, in the first instance, whether the affidavit shows the | not necessary to the defendant's case, the requisite facts. But, conceding that no par-deed itself furnishing prima facie evidence ticular weight is to be given to his action of the regularity of the prior proceedings. in accepting the affidavit and executing a But since the certificate was in fact introdeed, the sufficiency of the affidavit must nec-duced, its insufficiency might have been essarily be a subject for determination by any l reached by an attack on the findings. The court in which the validity of the proceed- specifications of insufficiency are, however, ings is put in issue. In the present case the so limited as to exclude such attack. lower court has, by finding in favor of the [8] But, in any view, we think the certifirespondent, ruled that the affidavit was suffi- cate did recite correctly the time when the cient. We cannot overturn this conclusion. purchaser would be entitled to a deed. UnWhether we could sustain a holding to the der the act the deed is to issue at any time contrary is a question that is not presented. after the expiration of 12 months from the

[6] 3. Section 18 of the act requires that date of sale if the purchaser has complied after the assessment is completed and filed with the provisions of the section and the with the city council, the council shall give property has not been redeemed. The purnotice of such filing "by publication for at chaser is therefore entitled to a deed at any least ten days in a daily newspaper published time after the expiration of 12 months upon and circulated in the city. * * *” The giving the proper notice, unless said properaffidavit of publication states that the notice ty is redeemed prior to the delivery of such was published for “ten consecutive days (Sun- deed. If we interpret the word "sooner" in days excepted), commencing on the 8th day the recital to refer to the date when the purof October, 1909, and ending on the 18th day chaser will be entitled to a deed-a perfectly of October, 1909, both days inclusive, and permissible construction—the recital is in exas often during said period as said newspaper act conformity with the provision of the law. was issued, to wit, daily." October 9 and 16, (9, 10] 5. The deed recites that the certifi1909, were Sundays, and there had, therefore, cate set forth various matters, including "the been only 9 publications. This is claimed time when the purchaser would be entitled to be insufficient under the statute.

to a deed.” It did not repeat in detail the The expression “publication for ten days," recital of the certificate setting forth the found in section 22 of the act, does not require time when the purchaser would be entitled any specific number of publications. It des- to a deed. It is claimed that such recital was ignates a period of time during which the necessary under the provision of section 28 publication is to be made. The intervening that there shall be recited in the deed "subSundays are properly counted as a part of stantially the matters contained in the certhis period. Taylor v. Palmer, 31 Cal. 240; tificate." Assessments for street iniproveCal. Imp. Co. v. Reynolds, 123 Cal. 88, 55 Pac. ments, like tax proceedings, are in invitum, SO2. A paper published only 6 days of the and where the statute prescribes the form of week is a "daily newspaper" (Richardson v. the instrument which is to divest the title of Tobin, 45 Cal. 30), and a publication for the the owner, such form must be followed. A required period in every issue of such a paper want of the recitals required by law will is a compliance with the statute (Cal. Imp. make the deed void. Grimm v. O'Connell, Co. v. Reynolds, supra).

54 Cal. 522; Simmons v. McCarthy, 118 Cal. [7] 4. Under section 26 the street superin- 622, 50 Pac. 761; Baird v. Monroe, 150 Cal. tendent must execute a certificate of sale set- 560, 564, 89 Pac. 352. "It is not for the ting forth “* * * the time when the pur- court to inquire whether the required recitals chaser will be entitled to a deed." Under are of material facts. * *" Baird v. section 27 redemption may be made at any Monroe, supra. time prior to the execution and delivery of The statute does not specify, in terms, the a deed therefor. The deed is to be executed precise 'recitals to be contained in the deed. (section 28) at any time after the expiration It merely calls, by reference, for "substanof 12 months from the date of sale, if the pur- tially the matters recited in the certificate.” chaser has given 30 days' notice, as required The particular recital here involved relates by said section 28, of the time when he will to the happening, in terms of futurity, of an apply for a deed. The certificate of sale in event which is to occur after the issuance of this case stated that:

the certificate, but will have taken place when "The purchaser or his assignee will be entitled the deed is executed. Of a somewhat siinto a deed of said property at any time after ilar provision in section 3786 of the Political the expiration of 12 months from the said dateCode this court said (ewes v. McLells of sale, upon giving notice of application therefor as provided by law, unless said property

| Cal, 393, 395, 22 Pac. 287, 288): shall be sooner redeemed."

“The requirement of the Code that the deed This, it is claimed, does not comply with to it is absurd, and results from the general pro

shall recite when the purchaser will be entitled the requirement of section 26.

vision that it shall contain the recitals containIt is questionable whether the alleged de- ed in the certificate, which was enacted no doubt fect in the certificate may be complained of

without observing that one at least of the reci

tals proper in the certificate would be entirely by the appellant. The certificate was admit improper and useless in the deed as the recital

ficient that the deed recited the fact that this tion 47 as amended it appeared that the evistatement was contained in the certificate.” dence had been taken before the Constitution Under the case just cited it would clearly :

had confirmed the amendment to that section,

and that the matter had been submitted and the have been sufficient if the deed had repeated commission's decision made after such confirmathe recital of the certificate. It did not do tion, and that the petitioner had waived any obthis, merely reciting, as has already been Ject

eady beenjection which might have been urged before such

amendment. Held, that the court would constated, that the certificate set forth "the time sider the case on the theory that the commission, when the purchaser would be entitled to a from the beginning, was authorized to entertain deed.” We think, however, that the reason- | the proceeding. ing in Hewes v. McLellan justifies the con- [Ed. Note.--For other cases, see Eminent Do

main, Cent. Dig. $$ 681-686; Dec. Dig. Com clusion that this was a substantial compli- 12621 ance with the statute, in view, especially, of

3. CONSTITUTIONAL LAW 62 - "JUDICIAL the rather indefinite language ("substantially POWER" - DELEGATION - CONSTITUTIONAL the matters contained in the certificate") in AND STATUTORY PROVISIONS. which section 28 defines the necessary re

Under Public Utilities Act, $ 47, as amend

ed in 1913, authorizing the Railroad Commiscitals in the deed. For the purposes of the

sion to fix compensation to be paid owners of particular recital here in question, we hold public utility property condemned by a munici. that every demand of the law, reasonably pal water district, etc., the commission is given construed, is fully satisfied by such a deed as

judicial powers, as its determination in eminent

domain proceedings establishes the right to the the one before us.

owners to receive and the obligation of the pubThe judgment is affirmed.

lic corporation to pay some fixed compensation

for the property taken;"judicial power” being We concur: SHAW, J.; LAWLOR, J. the power to determine what shall be adjudged

or decreed between the parties and with whom
is the right of the case; determination of the
rights of the individual under the existing laws;

the ascertainment of existing rights; the de MARIN WATER & POWER CO. V. RAIL termination of controversies between parties; ROAD COMMISSION OF STATE OF the power to investigate, declare, and enforce CALIFORNIA. (S. F. 7451.)

| liabilities as they stand on present or past fact

and under the laws supposed already to exist. (Supreme Court of California. Jan. 17, 1916.

[Ed. Note. For other cases, see Constitution. Rehearing Denied Feb. 16, 1916.)

al Law, Cent. Dig. 88 94-102; Dec. Dig. 62. 1. EMINENT DOMAIN m71-REGULATION AS For other definitions, see Words and Phrases,

TO PUBLIC UTILITIES-CONSTITUTIONAL AND | First and Second Series, Judicial Power.)
STATUTORY PROVISIONS.

4. EMINENT DOMAIN 264 - REVIEW-CER. Const. art. 12, § 23, gives the Railroad

TIORARI-WRIT-SCOPE-STATUTE. Commission such jurisdiction to regulate pub

Const. art. 6, § 4, gives the Supreme Court lic utilities, etc., as shall be conferred by the

ne power to issue writs of certiorari. Code Civ. Legislature, and declares the legislative power

Proc. 1068, provides that the writ of review to confer jurisdiction on the commission plenary.

may be granted when an inferior board, etc., has Section 22 declares the authority of the Legisla

exceeded its jurisdiction, and there is no appeal ture to give the commission such powers to be unlimited by any provision of the Constitution.

or any adequate remedy. Public Utilities Act, s Section 14, art. 1, provides that, when private

47, as amended in 1913, gives the Railroad

Commission judicial powers in fixing compenproperty is taken for public use, the owner's

sation in eminent domain proceedings, and seccompensation shall be fixed by a jury, unless a jury is waived. Article 12, & 23a (adopted No

tion 67 provides that the review shall extend vember 3, 1914), declares the commission to have

only to the question whether the commission

has legally pursued its authority, and excludes such power to fix the compensation to be paid for property of any public utility acquired by

from review questions of fact. Held that, when

" " a finding or conclusion of fact is based on uncertain public corporations as the Legislature may confer upon it, and that the legislative

contradicted evidence, its accuracy is usually a

mere question of law reviewable if it goes to the power shall be plenary. Held, that Public titilities Act (St. 1911, Ex. Sess. p. 18) § 47,

jurisdiction. as amended (St. 1913, p. 684), empowering the

[Ed. Note. For other cases, see Eminent Docommission on petition of any water district in

main, Cent. Dig. $$ 688, 689; Dec. Dig. Como tending to take by eminent domain the property

264.] of any existing public utility to fix the compen 5. EMINENT DOMAIN Cm 231-RAILROAD Consation, is valid.

MISSION-POWER TO CALL WITNESSES-Ex[Ed. Note.--For other cases, see Eminent Do AMINATION JUDICIAL TRIBUNALS. main, Cent. Dig. $8 180-187; Dec. Diy. 71.] In a proceeding under Public Utilities Act, 2. EMINENT DOMAIN W262-REGULATION OF

$ 47, as amended in 1913, to have the Railroad PUBLIC UTILITIES - REVIEW OF PROCEED

Commission fix the compensation of lands, INGS-WAIVER-EFFECT.

rights, etc., of a public utility intended to be Public Utilities Act, $ 47, as amended in

acquired by eminent domain by a public water 1913, valid after Const. art. 12, $ 23a (adopted

district, the commission, as a judicial tribunal,

had power to call and examine witnesses in furNovember 3, 1914), gave the Railroad Commission power to fix the compensation payable to

therance of justice and against the will of either the owner of any public utility property taken

party. by a municipal water district, etc., in eminent

[Ed. Note.-For other cases, see Eminent Dodomain proceedings, and section 70 provided

main, Cent. Dig. 88 585-589; Dec. Dig.com that, if the owner whose property is sought to

231.] be taken does not file an acceptance of the com 6. EMINENT DOMAIN Cm 231--RAILROAD Covpensation fixed by the commission, the corpora MISSION -- POWERS--RECEIVING TESTIMONY. tion seeking to condemn must commence an emi. In such proceeding the Railroad Commisnent domain proceeding, in which the compensasion, after such witness was examined and crosstion so fixed shall be conclusive. On a proceed- examined as to his knowledge on the subject, ing in certiorari or review instituted under sec-1 he having viewed and examined all the property carefully and made exhaustive inquiries of the parties and the subject-matter, the same regarding the previous sales of similar property presumptions as to subsequent proceedings apin the vicinity, and of the different uses to which ply as with respect to courts of general jurisdicthe properties in question were adapted, did not tion, and subsequent irregularities do not make exceed its authority in considering his testimony, its judgments void. together with other evidence bearing on the sEd. Note. For other cases, see Eminent Do. question of use and value.

main, Cent. Dig. $8 585-589; Dec. Dig. Om [Ed. Note. For other cases, see Eminent Do-231.] main, Cent. Dig. 88 585-589; Dec. Dig. Om 231.)

In Bank. Proceeding in certiorari or re7. EMINENT DOMAIN C 231-COMPENSATION

view by the Marin Water & Power Company, -EVIDENCE-METHOD OF VALUATION.

instituted under the provisions of the PubIn such proceeding, where it appeared that lic Utilities Act as amended in 1913, against the land belonging to the public utility froin the Railroad Commission of the State of Caliwhich water might be obtained was so situated that the annual rainfall thereon might be con- Tornia.

nofornia. Proceedings and determination of

Proceedings and determinati veniently collected, stored on the land, and the Commission affirmed. thence distributed to consumers, and there was evidence as to the average rainfall upon such! Lilienthal, McKinstry & Raymond, of San lands, the quantity which could be annually Francisco, for petitioner. Douglas Brookcollected and stored, and the selling price, a man. of San Francisco (Max Thelen, of San witness' method of valuing the land without giving the advantage of water storage a sepa-| Francisco, of counsel), for respondent. rate value, but merely adding it to the land value and reporting it all as one item, where SHAW, J. This is a proceeding in certhe commission gave additional value to the land on such ground, the refusal to require the wit

tiorari or review, instituted under the proviness to state its separate value or to give it a sions of section 47 of the Public Utilities Act separate value, while erroneous, did not deprive as amended in 1913 (Stats. 1913, p. 684), and the commission of jurisdiction or make its award Lof section 67 of said act. invalid. [Ed. Note.--For other cases, see Eminent Do

Section 47 originally gave the Railroad main. Cent. Dig. $$ 585-589: Dec. Dig. Ons Commission power to ascertain the value of 231.)

the property of public utilities and to make 8. EXINENT DOMAIN 234-WATER RIGHTS revaluations thereof from time to time, but -ELEMENTS OF DAMAGES.

for purposes of regulation only. The amendIn such proceeding the claim that by means

ment of 1913 empowers the commission, on of additional dams the amount of water stored on the land annually could be greatly increased, peut

ased petition of any county, municipal corporathat such possibilities increased the value of the tion, or municipal water district which inproperty, and that the commission allowed noth

tends to acquire, under eminent domain proing therefor was not sustained by a record showing that, while the commission refused to

ceedings, or otherwise, the property of any make a separate statement of the value of such existing public utility, or any part or portion possibilities, it did allow a value for the poten- thereof, to fix and determine the just cointial storage of storm water on the land by giving

pensation to be paid for such property in the land a present additional value because of such fact.

such condemnation proceedings. The com[Ed. Note. For other cases, see Eminent Do

mission is also empowered to fix and determain, Cent. Dig. $8 592-600, 603; Dec. Dig. mine such value upon the filing of a petition 234.)

stating that such county, municipal corpora9. EMINENT DOMAIN em 231-COMPENSATION tion, or district intends to submit to the vot-VALUE-METHOD).

ers thereof a proposition to acquire the propIn such proceeding the valuation of the property by the commission, corresponding with

ith erty of any existing public utility or any the values fixed by a certain witness called by part thereof. the commission, who had been examined and On May 20, 1914, the Marin municipal wacross-examined by the parties, was proper, as the ter district. a public corporation created uncommission was not bound to limit itself to the testimony of witnesses offered by the parties, but I der the act of May 1, 1911, and the amendmight take the other evidence produced at the ment of December 24, 1911 (Stats. 1911, p. hearing.

1290; Spec. Sess. 1911, p. 92), filed with the [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. 88 585-589; Dec. Dig. Om

commission a petition under the provisions 231.)

of section 47, asking the commission to fix

and determine the compensation to be paid 10. EMINENT DOMAIN ON 231-PROPERTY OF WATER AND POWER COMPANY-METHOD OF

by said district for all the lands, property, COMPENSATION - IRREGULARITY - PUBLIC and rights of the petitioner, Marin Water & UTILITY ACT.

Power Company, connected with its business Under Public Utility Act, $ 47, as amended in 1913, requiring the Railroad Commission to

of selling water for domestic and other uses fix the compensation to be paid for property of in Marin county. Such proceedi

in Marin county. Such proceedings were had a public utility in accordance with section 70, thereon that the commission heard the eviwhich provides that it shall file its findings of Idence of the respective parties and made a fact upon all matters as to which evidence was introduced which in its judgment had any bear

final determination as to the value of the ing on the value of the property, the commis- property in question, which decision became sion's failure to find separately the value of each final on May 10, 1915. This proceeding was separate parcel of the property, while an ir- begun within the time allowed by the Public regularity, did not cause a loss of jurisdiction or make the proceeding void, as, when a court Utilities Act for the review of said deof limited jurisdiction has acquired jurisdiction cision.

For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1] At the time of the enactment of the tioner now expressly waives any objection amendment of section 47 aforesaid, and at that might be urged because of the enactthe time of the filing of the petition to the ment of said amendment of section 47 before Railroad Commission and the hearing of the the amendment of the Constitution. This, evidence thereon, the Constitution, by sec- of course, includes all objections on the tion 23, art. 12, provided that:

ground that the proceeding was begun and "The Railroad Commission shall have and ex. the evidence taken therein before the comercise such power and jurisdiction to supervise mission was authorized to act in such matand regulate public utilities, in the state of Cali

Arters, if such objection would otherwise lie. ornia, and to fix the rates to be charged for commodities furnished, or services rendered by We have no doubt that the petitioner may the public utilities as shall be conferred upon it effectually waive a matter of that character. by the Legislature, and the right of the Legisla- As this would make the adjudication of the ture to confer powers upon the Railroad Commission respecting public utilities is bereby de- / commission valid, so far as such objections clared to be plenary and to be unlimited by any are concerned, it is unnecessary for us here provision of this Constitution.”

to express any opinion as to the soundness Section 22 of the article also provided that of the objections, or as to the effect, in this the authority of the Legislature to give the particular, of the several amendments to the commission powers of the same kind or dif- Constitution above mentioned. We proceed, ferent from those conferred upon it therein therefore, to consider the case upon the the"is expressly declared to be plenary and un- ory that the commission, from the beginning, limited by any provision of this Constitu- had lawful authority to entertain the protion." Section 14 of article 1 provides that, ceeding. when private property is taken for publici Section 47 of the Public Utilities Act, as use, the compensation to the owner shall be amended, after giving to the Railroad Comfixed by a jury, unless a jury is waived. So mission power to "fix and determine the just far as private property belonging to public compensation that should be paid to the ownutilities is concerned, this statute purports er" of the public utility property, the proto abrogate the guaranty of section 14. The cedure to be as provided in section 70 of the proposition that the above clauses of sec- act, also provides that, if the owner whose tions 22 and 23 were intended to authorize property is thus sought does not, within 20 the Legislature, by the simple device of giv-days after the commission has certified its ing additional powers to the Railroad Com- findings as to such compensation, file with mission to nullify all the other constitutional the commission an agreement to accept for guaranties for the protection of persons and the property the amount so fixed, the public property is certainly startling. It may well corporation at whose instance such compenbe doubted if the people understood that they sation was fixed must, within 60 days after were thus investing the Legislature with all the filing of such findings, commence a prothe powers of state. If this proposition ceeding in eminent domain for the condemnaa rose, the question whether the rule of ejus- tion of such property for its use. Similar dem generis would require a different con- provisions are made for the case where the struction would be presented. But after the public corporation in its petition states its enactment of said amendment to section 47 intention to submit such proposition to the the Constitution itself was amended by the voters. It further provides that the compenadoption on November 3, 1914, of section 23a sation so fixed by the commission shall be of article 12, declaring that the Railroad conclusive as to the amount to be allowed Commission should have such power to fix for the property in the proceeding in eminent the just compensation to be paid for the domain begun pursuant thereto, leaving the property of any public utility, when it is court therein to decide only the remaining sought to be acquired by any of the public material issues. corporations above named, as the Legislature [3] The first proposition to which the peshould confer upon it, that “the right of the titioner here directs our attention is that, in Legislature to confer such powers upon the making this determination as to compensaRailroad Commission is hereby declared to be tion, the commission exercises judicial power. plenary and to be unlimited by any provi. To this counsel for the other parties and for sion of this Constitution," and that "all acts the commission make no answer. They apof the Legislature heretofore adopted, which parently concede it. We have no doubt that are in accordance herewith, are hereby con- this is correct. The judicial function is to firmed and declared valid." This, of course, "declare the law and define the rights of the removes all doubt of the present validity of parties under it.” Frasher V. Rader, 124 the said amendment of section 47.

Cal. 133, 56 Pac. 797. To determine "what [2] The proceedings here under review shall be adjudged or decreed between the were begun, it must be noted, and substan- parties, and with whom is the right of the tially all the evidence was taken therein, be- case, is judicial action.” Rhode Island v. fore the Constitution had confirmed said Massachusetts, 37 U. S. (12 Pet.) 718, 9 L amendment to section 47. But the matter | Ed. 1233. “A determination of the rights of was submitted to the commission, and the de- an individual under the existing laws" is cision was made thereon after said confir- an exercise of judicial power. Quinchard v.

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