intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction". (Civ. Code, sec. 1292.) The allegations of the petition for revocation were to the effect that the wife of the decedent, respondent herein, some time after the execution of this will, was requested by the decedent to destroy the same, that thereupon in his presence she did destroy an envelope, declaring to the decedent at the time that the will was enclosed therein, that the decedent then believed that the said will was in the envelope and was then destroyed by burning the same, that from that time forward until his death he continued to believe that the said will had been destroyed, that in fact some other paper was enclosed in said envelope, that the will aforesaid was not destroyed or burned, and that all this was done by the said respondent for the purpose of deceiving the decedent and securing to herself the property left to her by said document. These acts did not, under the statutory provisions aforesaid, constitute a revocation of the will. [7] In order to constitute such revocation, there must be an actual burning, tearing, cancelling, obliteration or destruction, with the intention to revoke the document as a will. The mere intent unperformed, to destroy or burn the will, is not sufficient. There must be a joint union of act and intent in order to accomplish the revocation. (Estate of Olmsted, 122 Cal. 229; 1 Underhill on Wills, secs. 223-226; Boyd v. Cook, 3 Leigh 32; Kent v. Mahaffey, 10 Ohio St. 204; Hise v. Fincher, 32 N. Car. 139; Clingan v. Mitchelltree, 31 Pa. St. 25; Mundy v. Mundy, 15 N. J. E. 290.) The decisions in other states having no statute similar to section 1292 of our Civil Code are inapplicable here. (In re Comassi, 107 Cal. 5.) Inasmuch as there was no allegation to show revocation, it was not error to refuse evidence in support thereof.

[8] In a proceeding under the statute for the revocation of the probate of a will, the court cannot give relief for a fraudulent prevention of a revocation of the will. The statute does not provide for the presentation of such an issue as ground for revoking the admission to probate. If relief can be given at all for such a wrong it must be sought by suit in equity to declare the wrong-doer a trustee for the heirs with respect to the property received by such wrong-doer in virtue of the will. (1 Underhill on Wills, sec. 153.)

[9] The last point urged by the appellants is that the court erred in giving the following instruction:

"The court instructs you that it is not necessary that a testator should in words say that an instrument is his will or request the subscribing witnesses thereto to witness the same as such. Such statement and request on the part of the testator may be indicated by his manner, conduct or demeanor."

We see no error in this instruction. It is in accord with the law on the subject as we understand and have stated it to be. [10] It was not error for the court to instruct the jury that it was immaterial whether the testator signed his name before or after the witnesses signed their names to the document executed

as a will, if it appeared that all the parties signed it at the same time and as a part of the same transaction. The statute does not make the order of signing material. We find no other objections worthy of consideration.

The order denying new trial is affirmed.

We concur:

SLOSS, J.

ANGELLOTTI, C. J.

SHAW, J.

S. F. No. 6215. In Bank. January 8, 1915.

*GUY FORD, Plaintiff and Appellant, v. WEED LUMBER COMPANY (a Corporation), Defendant and Respondent.

[1] ACTION FOR DAMAGES-PERSONAL INJURIES-DENIAL OF REHEARING OF APPEAL-CONTRIBUTORY NEGLIGENCE OF PLAINTIFF-PORTION OF OPINION OF DISTRICT COURT OF APPEAL NOT APPROVED. It is held in denying the petition for a hearing of this appeal in the supreme court after decision in the district court of appeal, that the portion of the opinion (19 Cal. App. Dec., p. 593) holding that the plaintiff, as matter of law, was guilty of contributory negligence contributing to his injury, is not approved.

Appeal from the Superior Court of the City and County of San Francisco-George A. Sturtevant, Judge.

For Appellant-E. Lyders and Bernard Silverstein.
For Respondent-Linforth & Herrington.

BY THE COURT,

The petition for a hearing in this court after decision in the district court of appeal of the first district is denied. [1] In denying such hearing it is proper to say that we are not satisfied with the conclusion of the district court of appeal, that the plaintiff must be held, as matter of law, to have been guilty of negligence contributing to his injury, and we are not to be understood as approving the portion of the opinion so holding.

S. F. No. 7011. In Bank. January 8, 1915.

WESTINGHOUSE ELECTRIC AND MANUFACTURING COMPANY, Plaintiff, v. JOHN S. CHAMBERS, State Controller, Defendant.

[1] JUDGMENT RECOVERY AGAINST STATE-MODE OF PAYMENT GENERAL RULE. The general rule is well established that a judg ment against the state, in cases wherein the state has permitted actions to be maintained against it, merely liquidates and establishes the claim against the state, and that, in the absence of an express statute so providing, such judgment cannot be collected by execution against the state or its property, or by any of the ordinary processes of law provided for the enforcement of judgments, but it remains for the state, after such judgment, to provide for the payment thereof in such manner as it sees fit, or to refuse to do so at its pleasure, and the judgment creditor can obtain payment in no other way than that provided.

*On hearing after judgment in District Court of Appeal, First District (19 Cal. App. Dec. 593).

[2] ID.-ID.-JUDGMENT FOR ILLEGALLY COLLECTED STATE TAXESPAYMENT FROM TREASURY ON WARRANT OF CONTROLLER-PROVISION OF POLITICAL CODE INAPPLICABLE-CONSTITUTIONAL LAW. The payment of a judgment obtained by a foreign corporation doing business in this state against the state for taxes illegally collected, is not authorized by the provisions of section 3669 of the Political Code, as amended in 1905, which provides for the payment under protest and recovery of state taxes illegally collected.

[3] ID. TAXATION-RECOVERY OF ILLEGALLY COLLECTED TAXES--APPLICABILITY OF CODE SECTIONS-RAILROAD TAXES UNDER OLD SYSTEM OF TAXATION-RECOVERY UNDER NEW SYSTEM-ACT OF 1910 ALONE APPLICABLE.-The provisions of sections 3664 to 3670, inclusive, of the Political Code, were intended to apply and do apply exclusively to taxes therein provided for under the old system of railroad taxation, and the provisions of the act of April 1, 1911, passed to carry out the new constitutional scheme of taxation, were intended to and do apply exclusively to taxes levied and collected under the constitutional amendment of 1910 and the latter act covers the entire legislation applicable to the recovery of such taxes by action.

[4]

ID.-ID.-CONSTITUTIONAL LAW-PAYMENT OF JUDGMENT FOR ILLEGALLY COLLECTED TAXES-VOID CODE PROVISION.-The clause of section 3669 of the Political Code providing that "if the final judgment be against the treasurer, upon presentation of a certified copy of such judgment to the controller he shall draw his warrant upon the state treasurer, who must pay to the plaintiff the amount of the taxes so declared to have been illegally collected", is invalid under section 22 of article IV of the constitution which provides that "no money shall be drawn from the treasury but in consequence of appropriations made by law, and upon warrants duly drawn thereon by the controller", and under section 34 of the same article which provides that "no bill making an appropriation of money, except the general appropriation bill, shall contain more than one item of appropriation, and that for one single and certain purpose to be therein expressed".

[5]

ID.-ID.-ID.-ID.-ID.-NATURE OF TAX MONEYS PAID INTO TREASURY-MANNER OF WITHDRAWAL.-The opening provision of section 3669 of the Political Code that the person assessed must pay the taxes each year levied upon the property assessed to it, to the state treasurer "as other moneys are required to be paid into the treasury", makes the money thus paid a part of the general fund not distinguishable from any other money, and therefore not subject to withdrawal "but in consequence of appropriations made by law" and upon the warrant of the controller duly drawn.

[6] ID.-ID.-ID.-ID.-ID.-CODE PROVISION NOT A SPECIFIC APPROPRIATION BILL.-Such paragraph of section 3669 of the Political Code is not a specific appropriation bill of the kind described in section 34 of article IV of the constitution.

[7]

ID.—ID.—ID.—STATEMENT IN RECENT CONSTITUTIONAL AMEND MENT CODE PROVISION NOT AFFIRMED.-The statement in subdivision g of section 14 of article XIII of the constitution that after payment "action may be maintained to recover any taxes illegally collected in such manner and at such time as may now or hereafter be provided by law", is not an affirmance of such paragraph of section 3669 of the Political Code, or in effect, a constitutional declaration that an action may be maintained for such taxes, and judgment recovered against the state therefor, and that such judg ment when final shall be paid out of the treasury on warrant drawn thereon by the controller.

[8] ID-STATUTORY CONSTRUCTION-RELINQUISHMENT OF PUBLIC RIGHTS. It is a rule of statutory construction that public rights will not be treated as relinquished or conveyed away by inference or legal construction.

[9] ID.-WORDS AND PHRASES-MEANING OF WORD "RECOVER.”—

The word "recover" when used in connection with actions at law for money does not necessarily, or even ordinarily, include the actual payment of the money sued for.

[10] ID.-ID.-"MAINTENANCE" OF ACTION-COLLECTION OF JUDGMENT NOT INCLUDED.-The declaration of such constitutional subdivision that an action may be "maintained" to recover any illegally collected taxes does not include the collection of the money after judgment.

Application for Writ of Mandate prayed to be directed against John S. Chambers, State Controller.

For Petitioner-J. C. Campbell, Weaver, Shelton & Levy; Edward F. Treadwell, as amicus curiae.

For Respondent-U. S. Webb, Attorney-general, and Raymond Benjamin, Chief Deputy Attorney-General.

Mandamus to compel the state controller to issue a warrant in favor of the plaintiff on the state treasury for the amount of a judgment recovered by the plaintiff against the state of California in an action to recover state taxes illegally collected.

The plaintiff was a foreign corporation doing business in this state. Subdivision (d) of section 4, article XIII, of the constitution, provides that the franchises of all corporations, other than those engaged in certain public service, insurance or banking, shall be valued, in a manner to be provided by statute, and taxed at the rate of one per centum each year on such value. This section was added to article XIII by an amendment adopted in November, 1910. Section 14 of the act of 1911, passed to carry out this provision (Stats. 1911, 530), prescribes the method of valuation. Under these laws, the plaintiff was regularly taxed in the sum of $2700 as one per centum of the value of its franchise to do business in this state. This business consisted entirely of interstate commerce. For this reason it claimed exemption from this tax, and upon that claim it paid the tax under protest and thereupon brought suit to recover the amount paid and obtained the judgment in question. This judgment has become final. With its merits we have nothing to do, our concern in this proceeding being wholly upon the question of the mode of obtaining payment from the state.

[1] The general rule is well established that a judgment against the state, in cases wherein the state has permitted actions to be maintained against it, merely liquidates and establishes the claim against the state, and that, in the absence of an express statute so providing, such judgment cannot be collected by execution against the state or its property, or by any of the ordinary processes of law provided for the enforcement of judgments; it remains for the state, after such judgment, to provide for the payment thereof in such manner as it sees fit, or to refuse to do so at its pleasure, and the judgment creditor can obtain payment in no other way than that provided. (Sharp v. Contra Costa Co., 34 Cal. 291; Smith v. Broderick, 107 Cal. 650; Gilman v. Contra Costa Co., 8 Cal. 57; Emeric v. Gilman, 10 Cal. 404, 410; 68 Am. Dec., note on p. 297; People v. San Joaquin etc. Assn., 151 Cal. 806.)

The petitioner claims that a provision for the payment of this judgment and for the issuance of the warrant therefor is made by section 3669 of the Political Code as amended in 1905. The material parts of the section are as follows:

"Each corporation, person or association assessed by the state board of equalization must pay to the state treasurer, upon the order of the controller, as other moneys are required to be paid into the treasury, the state and county and city and county taxes each year levied upon the property so assessed to it or him by said board. Any corporation, person or association dissatisfied with the assessment made by the board, upon the payment of the taxes due upon the assessment complained of, . . . and the filing of notice with the controller of an intention to begin an action, may . . bring an action against the state treasurer for the recovery of the amount of taxes and percentage so paid to the treasurer, or any part thereof. .. When any person, corporation or association has made payment of any of the taxes . . . previously referred to, which have been subsequently adjudged illegal, and still remain in the hands of the state treasurer, such person, corporation or association shall be entitled to a refund thereof, although the payment of such taxes .. may not have been under protest, nor a notice filed with the controller, . ., as hereinbefore provided. . . And in case of failure or refusal by the state treasurer to pay the same to such person, corporation or association upon its demand, an action may be brought against the state treasurer for the recovery of the amount of taxes and percentage so paid to the treasurer or any part thereof. . . . If the final judgment be against the treasurer, upon presentation of a certified copy of such judgment to the controller he shall draw his warrant upon the state treasurer, who must pay to the plaintiff the amount of the taxes so declared to have been illegally collected; and the cost of such action, audited by the board of examiners, must be paid out of any money in the general fund of the treasury, which is hereby appropriated and the controller may demand and receive from the county or city and county interested, the proportion of such costs."

We have italicized the particular clause which, it is claimed, authorizes the issuance of the warrant to the plaintiff. If this clause is valid, and is applicable to the taxes in question, the warrant should be issued as prayed for. We have reached the conclusion that the clause is both invalid and inapplicable. We proceed to state the reasons.

[4] This provision for the payment of money out of the state treasury is contrary to the specific mandates of the constitution. Section 22 of article IV, provides that "No money shall be drawn from the treasury but in consequence of appropriations made by law, and upon warrants duly drawn thereon by the controller." Section 34 of the same article is as follows: "No bill making an appropriation of money, except the general appropriation bill, shall contain more than one item of appropriation, and that for one single and certain purpose, to be therein ex