equivalent of an order granting a new trial. The order refusing to grant the motion for a new trial, under the circumstances attending its making, was void upon this direct appeal, as being an order made by a judge disqualified to sit on the hearing. For this reason the order refusing a new trial is not reversed, but is vacated and declared null, and the cause will be restored to the jurisdiction of the trial court, with directions to the qualified judge who may be called in to hear and determine that motion. It is ordered accordingly.

We concur:
SHAW, J.
SLOSS, J.

LORIGAN, J.

MELVIN, J.

ANGELLOTTI, C. J.

HENSHAW, J.

L. A. No. 3839. Department One. March 31, 1915.

In the Matter of the Estate of R. T. HARRIS, Deceased; CLARA G. FULSOM, Appellant; MARIA L. HARRIS, Respondent.

[1] JOINT TENANCY-PERSONAL PROPERTY-CREATION BY ORAL AGREEMENT.-A joint tenancy in personal property may be created by an oral agreement by which the title to the property is transferred to two persons as joint tenants.

[2] ID. DEATH OF JOINT TENANT-RIGHT OF SURVIVORSHIP.-One of the incidents of a joint tenancy is that, upon death of one of two joint tenants, the survivor thereupon becomes the sole owner of the entirety, not by descent, but by survivorship and in virtue of the original grant creating the tenancy.

[3] ID.-HUSBAND AND WIFE-AGREEMENT AS TO PROPERTY-HOLDING IN JOINT TENANCY-JOINT BANK ACCOUNT-PROPERTY ACQUIRED FROM WITHDRAWALS-JOINT PROPERTY.-Where a husband and wife enter into an agreement which in effect provides that all the property held or acquired by either or both of them during marriage should be held in joint ownership as joint tenants, and to carry out such agreement the money received from earnings, proceeds of property and all other sources by either of them is deposited in a bank from time to time to their joint account in pursuance of an agreement between them entered in the pass book which recites that the money shall be held in joint tenancy and at the death of either the balance shall belong to the survivor, property acquired with money drawn from such account is likewise joint property, and upon the death of the husband belongs to the wife.

Appeal from the Superior Court of Orange County-Z. B. West, Judge.

For Appellant-Williams & Rutan.

For Responent-Scarborough & Forgy.

Personal property may be held by two or more persons in joint tenancy. There is no distinction, in this respect, between real property and personal property (Denigan v. San Francisco Sav. U., 127 Cal. 159; Kennedy v. Kennedy, 146 Pac. 647.)

"A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or

when granted or devised to executors or trustees as joint tenants." Civ. Code, sec. 683.)

"A transfer may be made without writing, in every case in which a writing is not expressly required by statute." (Civ. Code, sec. 1052.) Section 1091 of the Civil Code provides that an estate in real property can be transferred only by operation of law, or by a duly executed instrument in writing. But there is no provision of the code which requires the execution of a writing to effect a transfer of personal property. [1] It follows, therefore, that a joint tenancy in personal property may be created by an oral agreement by which the title to the property is transferred to two persons as joint tenants.

[2] One of the incidents of a joint tenancy is that, upon death of one of two joint tenants, the survivor thereupon becomes the sole owner of the entirety, not by descent, but by survivorship and in virtue of the original grant creating the tenancy. (Hannon v. Southern P. R. R. Co., 12 Cal. App. 356; Kennedy v. Kennedy, supra; De Witt v. San Francisco, 2 Cal. 297; Greer v. Blanchar, 40 Cal. 97.) No rights of creditors are involved in this case, and consequently, we need not determine whether or not a creditor would have a right to resort to the estate of a decedent in property held in joint tenancy by him and another person.

[3] These propositions determine the rights of the parties here and uphold the decision of the court below. The decedent and Maria L. Harris were married twenty-three years before his death. Each had some separate property and they accumulated other property by their joint efforts during the marriage. An agreement was made between them in the early years of their marriage, which, in effect, provided that all the property held or acquired by either or both of them during the marriage should be held together in joint ownership as joint tenants. To carry out this agreement, the money received from earnings, proceeds of property and all other sources by either of them, was deposited in a bank from time to time to their joint account in pursuance of an agreement between them which was entered in writing in the pass book of said account as follows: "It is expressly agreed that the money represented by the within account is, and all future deposits of the account shall be, the joint property of the undersigned, and is and shall be held in joint tenancy, subject to checks by either of us during life, and at the death of either the balance remaining in this account does and shall belong to the survivor, and the bank is directed to pay such balance to such survivor upon his or her check and the return of this book." All the property in controversy was acquired with money from this joint account, and it was agreed between them that the title thereto should be taken and held by them as joint tenants in the same manner as the money was deposited. Some of it was corporate stock, the certificates whereof were issued to R. T. Harris and were by him indorsed and placed in a safe deposit box in which they kept the papers pertaining to the joint property. Part of it was loaned upon a note made payable to "R. T. Harris or Maria L. Harris".

Upon the death of R. T. Harris, his widow, respondent herein, was appointed administratrix of his estate. She filed her final account as such administratrix showing total receipts of $5040 and that she had paid out all of it and a little more on debts of the decedent and on expenses of administration. She did not include in the account the joint property in controversy nor account for it at all in the administration. There were no children of the marriage and Harris left no father, mother, or issue, surviving. The appellant, a sister of Harris, objected to the final account, claiming that the property acquired as above stated was not held in joint tenancy, but was either community property of the marriage or the separate property of the decedent, in either of which alternatives, a portion of it would descend to the sister and all of it would have been subject to administration. The court overruled her objections, decided that the property belonged to Maria L. Harris, that nothing remained to be accounted for in the estate and adjudged the account settled. From this order the sister appealed. The case is not essentially different from Kennedy v. Kennedy, supra. The property acquired with money taken from the bank account would retain the character of joint property, the same as the money with which it was obtained, unless by some agreement between the parties its character was changed. No such agreement was made, but the contrary was agreed upon. On the authority of the case of Kennedy v. Kennedy, the order of the court below is correct.

The order is affirmed.

We concur:

SLOSS, J.
LAWLOR, J.

SHAW, J.

Sac. No. 2118. In Bank. March 31, 1915.

CITY OF HANFORD, Plaintiff and Respondent, v. HANFORD GAS & POWER COMPANY (a Corporation), Defendant and Appellant.

[1] GAS CORPORATION-OCCUPATION OF STREETS FOR ILLUMINATING PURPOSES-FRANCHISE FOR HEAT AND POWER-LIABILITY FOR PAYMENT OF PERCENTAGE OF GROSS RECEIPTS.-A public service corporation occupying the streets of a city with mains and laterals for the supplying of the inhabitants with gas under the constitutional grant and permission of section 19 of article XI of the constitution, as it read prior to the amendment of October 10, 1910, is required to pay to the city two per cent of its gross annual receipts arising from the use and operation of a franchise granted to it under the act of 1901 "to lay pipes for the purpose of carrying gas for heat and power" purposes.

[2] ID. CONSTITUTIONAL LAW-FREE USE OF STREETS FOR ILLUMINATING PURPOSES-PURPOSES OF HEAT AND POWER NOT INCLUDED.---While a gas company has the right under the constitution to use city streets for the purpose of supplying its inhabitants with gas for illuminating purposes without being subject to any charge for such use by the municipality, it does not follow that it has the same right to use the same for the purpose of furnishing gas for the purposes of heat and power.

Appeal from the Superior Court of Kings County-J. A. Allen, Judge.

For Appellant-John G. Covert.

For Respondent-F. E. Kirkpatrick.

The city of Hanford, a city of the sixth class, sued defendant, the Hanford Gas & Power Company, to recover judgment for a specific sum with interest, this sum being two per cent of the gross annual receipts of the defendant, earned by operating its plant in the city of Hanford, under the provisions of ordinance No. 115 of that city. Defendant demurred to the complaint. The demurrer was overruled. Defendant declining to answer, judgment was given against it and it appeals. It appears that the defendant, a public service corporation, was and had been for many years occupying the streets of the city of Hanford with mains and laterals for the supplying of gas to the inhabitants of the city. It was exercising this franchise under the constitutional grant and permission of section 19, article XI of the constitution as it read prior to the amendment of October 10, 1911. The legislature in 1901 enumerated certain franchises which a municipality might dispose of by sale, and provided for the manner of disposition. (Stats. 1901, p. 265.) Amongst these franchises was the franchise "to lay gas pipes for the purpose of carrying gas for heat and power". In 1902 an application was filed with the board of trustees of the city of Hanford for a franchise for the privilege of using the public streets and thoroughfares of the city for the purposes of laying pipes and conduits therein to supply the city and its inhabitants with gas "for heat, light and power". Pursuing the course prescribed by the act of 1901, above cited, the city of Hanford advertised for bids and sold this franchise to the applicant Young, who, in turn, conveyed and assigned all his franchise rights to defendant corporation. The act of 1901 required that the successful bidder and his assigns must, during the life of the franchise, pay to the municipality two per cent of the gross annual receipts arising from the use and operation or possession of the franchise. Such provision was contained in the grant to Young. It is this two per cent which defendant has refused to pay, and for which judgment was sought and obtained. Upon appeal appellant places reliance upon such cases as In re Johnson, 137 Cal. 115; Denniger v. Recorder's Court, 145 Cal. 629; People v. Los Angeles Gas Co., 150 Cal. 557, and Town of St. Helena v. Ewer, 19 Cal. App. Dec. 819. To sum up its argument under these cases, appellant declares that by virtue of the constitutional grant in section 19, article XI, it had the free right to use the streets for gas mains and laterals without being subject to any charge for such use by the municipality. This may at once be conceded to be true. It argues that while the constitution limits the right of public service corporations to the use of the streets for the purpose of supplying "gaslight or other illuminating light", the fact that by the same mains and laterals the gas so carried and purveyed may be used for heat or power, imposes no additional burden upon the municipality or its streets, and does not therefore become

the legitimate subject-matter of a new franchise, with onerous payments and exactions thereunder; that therefore it acquired nothing by virtue of the franchise which it secured for the furnishing of gas for heat and power, and as it acquired nothing, can be made to pay nothing for nothing. The cases upon which appellant relies, however, are not decisions in accordance with its contention, which contention was in no one of them involved. In re Johnson, 137 Cal. 115, merely decided that certain onerous provisions of an ordinance of the city of Pasadena unconstitutionally hampered the right of public service corporations to lay their pipes for illuminating gas or water in the streets of that city, and so far as the matter before us is concerned it decided nothing more. To the suggestion on the part of the city of Pasadena that it was the purpose of the corporation to supply gas for other than illuminating purposes, this court answered that even if the suggestion were founded upon fact, it did not deprive the corporation of the right conferred upon it by the constitution (to lay pipes for the furnishing of gas for light) "or authorize the municipality to prevent it from enjoying that right". In Denniger v. Recorder's Court, 145 Cal. 638, an ordinance regulating and fixing gas rates was under consideration. The petitioner was convicted of having collected a rate in excess of the municipal rate. The conviction was upheld. In the course of the discussion this court said: "Section 19 of article XI does not directly confer upon any individual or company the right to lay pipes and conduits in the streets of a city in order to supply gas for cooking and heating purposes, but only so far as may be necessary for supplying the city and its inhabitants with gaslight. The same gas, however, which furnishes light also serves for cooking and heating, and the pipes and connections necessary for the one purpose make the gas available for the other purposes without subjecting the streets to any additional burden." In People ex rel. City of Los Angeles v. Los Angeles Independent Gas Co., 150 Cal. 557, the state, by quo warranto, sought to forfeit the unquestioned constitutional franchise of the defendant Gas Company to use the streets for the supplying of gas for illuminating purposes because the company was also through the same mains, laterals and connections supplying the same gas for purposes of heat, power and cooking. It is to be borne in mind that the effort was not to prevent the defendant company from using a franchise which it did not possess, namely, the franchise to supply the gas for purposes other than illumination, but it was to forfeit its franchise for the supplying of gas for illumination because it was permitting the gas to be used for other purposes. The trial court refused to forfeit the franchise, and this court affirmed the judgment. In so doing it nowhere declared that a gas company, purveying gas under the constitution for illuminating purposes, had under that constitutional franchise the right to supply it for other purposes. It held merely that it would not forfeit the franchise because it was so doing. It is not even intimated as to what the decision of this court would have been had the action been addressed to an effort to restrain the defendant