Appeal from Superior Court, Santa Cruz | decision that the act has been held constiCounty; Lucas F. Smith, Judge.

Petition by the State Board of Health of the State of California for writ of mandate against the Board of Trustees of Watsonville School District of Santa Cruz County and others. Judgment for defendants, and plaintiff appeals. Reversed, with directions.

tutional in Abeel v. Clark, 84 Cal. 227, 24 Pac. 383, and in French v. Davidson, 143 Cal. 659, 77 Pac. 663.

The statute is not directory, but mandatory. It provides: "The trustees of the several common school districts in this state and boards of common school government in

J. E. Gardner, for appellant. James A. the several cities and towns are directed to

We have no doubt as to the constitutionality of the act. wise. The Legislature must necessarily be the judge as to legislation under the police power for the public health and for the purpose of preventing the spread of contagious diseases, the means used to prevent such spread, and the diseases regarded as contagious. It is invested with a large discretion within the scope of its powers, which discretion cannot be controlled by the courts except in cases where such discretion has been plainly abused. Its acts are the acts of the people; and as the Legislature is selected by the people for the purpose of enacting legislation, if an act is oppressive and unjust, the remedy is with the people through the Legislature. It is not for the courts to interfere, or in any way to set up their judgment against that of the Legislature, as to the general police powers of the state. It is sufficient for the purposes of this

(13 Cal. App. 564)

Ex parte MILLER. (Cr. 119.) (Court of Appeal, Third District, California. June 6, 1910.)

1. LICENSES (§ 40*)- FAILURE TO OBTAIN CRIMINAL PROSECUTIONS-"LAW."

Though an ordinance of a county requiring one engaged in the business of raising cattle to pay a license fee does not denounce failure to obtain the license as a crime, one so failing is subject to prosecution by virtue of Pen. Code, $435, declaring guilty of a misdemeanor every person who commences or carries on any business without procuring a license required by "any law of this state" for the carrying on of the same; an ordinance being a law within such code provision.

[Ed. Note. For other cases, see Licenses, Dec. Dig. § 40.*

For other definitions, see Words and Phrases, vol. 5, pp. 4014-4023; vol. 8, p. 7701.]

2. LICENSES (§ 7*)—REGULATION OF BUSINESS -FEES.

The license fee, imposed by a county ordinance on the business of raising cattle, of seven cents for each head of cattle, the entire tax in the county for any year not amounting to over $700, cannot be held unreasonable, as against the presumption to the contrary, in view of the probable expense to the county that may be caused by the business.

[Ed. Note. For other cases, see Licenses, Cent. Dig. § 15; Dec. Dig. § 7.*] 3. HABEAS CORPUS (§ 11*)-VOLUNTARY RE

STRAINT.

purpose of regulating the business therein referred to, but was passed solely for the purpose of raising revenue."

The ordinance does indeed omit to denounce as a crime the failure to secure said license, but petitioner was amenable to prosecution by virtue of section 435 of the Penal Code, providing that "every person who commences or carries on any business, trade, profession, or calling, for the transaction or carrying on of which a license is required by any law of this state, without taking out or procuring the license prescribed by such law, is guilty of a misdemeanor." It has been held by the Supreme Court that "any law of this state" includes ordinances of counties and municipalities. Ex parte Christensen, 85 Cal. 208, 24 Pac. 747; Ex parte Mansfield, 106 Cal. 400, 39 Pac. 775; Ex parte Bagshaw, 152 Cal. 701, 93 Pac. 864.

The second ground of attack is equally untenable. It is well settled that the "police power, the power to make laws to secure the comfort, convenience, peace, and health of the community, is an extensive one, and in its exercise a very wide discretion as to what is needful or proper for the purpose is necessarily committed to the legislative body in which the power to make such laws is vested." Ex parte Whitwell, 98 Cal. 73, 32 Pac. 870, 19 L. R. A. 727, 35 Am. St. Rep. 152. "The manner and extent of such regulation are primarily legislative questions, and the courts will not interfere, unless it clearly appears that the Legislature has, under the guise of regulation, imposed an arbitrary or uareasonable burden upon the use of property Application of Dave Miller for writ of haor the pursuit of an occupation." County of beas corpus. Plumas v. Wheeler, 149 Cal. 762, 87 Pac. 911. Writ discharged and proceeding dismissed. "It is always a judicial question whether a particular regulation of the right to pursue a Edward F. Treadwell, for appellant. Pat. useful business is a valid exercise of the R. Parker, for respondent.

Where, even if at the very moment petitioner applied for the writ, he was in the custody of the officer, it was only momentary and voluntary, and invited for the purpose of obtaining a decision as to the validity of an ordinance, habeas corpus will not lie.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 12; Dec. Dig. § 11.*]

BURNETT, J. The petitioner was charged in the justice court of Bridgeport township, county of Mono, with misdemeanor in having commenced and carried on within said county "the business of raising, grazing, herding, and pasturing cattle without having taken out or procured a license therefor, as required by an ordinance of the board of supervisors of said county."

The said ordinance requires on the part of every one engaged in such business the payment to the tax collector of the sum of seven cents for each cow, heifer, bull, or bullock, owned by, in the possession or under the control of, such person and used in such business in Mono county.

police power, though the authority of the courts to declare any regulation invalid will be exercised with the utmost caution. An ordinance must be clearly shown by the attacking party to be obnoxious and unreasonable to authorize the interference of the court." In re McCoy, 10 Cal. App. 116, 101 Pac. 419.

And, as stated in County of Plumas v. Wheeler, supra: "It is to be remembered that the presumption is in favor of the reasonableness of the charge, and that the county is not limited to the exact amount of the expense, as it may subsequently develop. "The municipality is at liberty to make the charge large enough to cover any reasonable, anticipated expense.' Atlantic, etc., Tel. Co. v. Philadelphia, 190 U. S. 160 [23 Sup. Ct. 817, It is claimed that petitioner is entitled to 47 L. Ed. 995]. What expense the county his discharge for two reasons: First, the or- will be put to in the enforcement of the ordinance does not provide that the act com-dinance cannot be determined from an inspecplained of shall be a crime; and secondly, tion of the ordinance itself. * 串 the ordinance is "unreasonable, unconstitu- rive at the amount of such expense it would tional, and void, and was not passed for the be necessary to consider the topographical

To ar

For the foregoing reasons, the writ is discharged and the proceeding dismissed.

We concur: CHIPMAN, P. J.; HART, J.

conditions of the county, the extent of the in- | making a case, the proceeding will be disdustry as practiced there, the effect of the in- missed." dustry on the roads, trails and other public property of the county, the probable cost of prosecutions for violations of the ordinance and any other matters having a reasonable tendency to indicate the cost to which the county would be subjected by the business sought to be regulated." It was there held that a tax of 10 cents per head upon sheep and lambs, in the absence of evidence as to cost of regulation, could not be adjudged un

reasonable.

Some evidence was taken in the matter before us, but it cannot be said that it clearly appears therefrom that the tax in question is unreasonable and oppressive. The amount realized from the license is comparatively small, and the showing made by petitioner falls far short of that considered by this court in the McCoy Case, supra. The amount of the tax upon all the owners of the cattle does not exceed-so it is admitted-the sum of $700 a year, and some years it is much less. This certainly appears quite reasonable in view of the probable expense to the county that may be caused by the business, and while the evidence as to this is unsatisfactory and indefinite, it cannot be said that the presumption is overcome that said expense may approximate the amount of the tax, or that the board of supervisors was not entirely justified in concluding that the tax was proper to meet "a reasonable, anticipated expense."

(13 Cal. A. 435)

SIRCH ELECTRICAL & TESTING LABO-
RATORIES v. GARBUTT. (Civ. 756.)
(Court of Appeal, Second District, California.
May 17, 1910.)

1. CONTRACTS (§ 322*)—BREACH-KNOWLEDGE
OF OTHER PARTY.

Evidence held to support a finding that one who had contracted to have an electrical plant installed in a boat was fully informed that the plant had been improperly installed, acquiesced in all delays in the installment thereof, and with knowledge of such facts made a payment to the contractor.

[Ed. Note.-For other cases, see Contracts, Dec. Dig. § 322.*]

2. CONTRACTS (§ 305*)-BREACH-WAIVER BY ACCEPTANCE OF WORK.

furnished under contract, accepts them as in Where one, hiring work done and material accordance with the contract and pays therefor, with full knowledge that the work and materials do not comply with the contract, he waives the right to seek damages therefor.

[Ed. Note.-For other cases, see Contracts. Cent. Dig. §§ 1398, 1399, 1467-1475; Dec. Dig. § 305.*]

Appeal from Superior Court, Los Angeles
County; Chas. Monroe, Judge.
Action by the Sirch Electrical & Testing

Judgment for defendant on the complaint, and for plaintiff on the counterclaim, and defendant appeals. Affirmed.

J. L. Murphey and Murphey & Poplin, for appellant. C. S. Tappan, for respondent.

But there is another reason why the appli-Laboratories against F. A. Garbutt. cation should be denied, and that is found in the return of the sheriff "that on November 1, 1909, the said Dave Miller did come to me as said sheriff, and state that he desired to surrender himself to my custody and release his bail, and whatever custody or control I now have is solely under this surrender. Upon the said Dave Miller thus surrendering himself I did not assume actual custody or control of the person of the said petitioner, and he was permitted his own recognizance, and has never by me been in restraint or jeopardy." It thus appears that, if at the very moment the petitioner applied for the writ he was in the custody of the officer, it was only momentary and voluntary, and invited for the purpose of obtaining a decision as to the validity of said ordinance. This practice is said to be not within the spirit of the habeas corpus act, and not to be countenanced by the courts. In the case of In re Gow, 139 Cal. 243, 73 Pac. 145, the practice is condemned in the following language: "Our conclusion is that such a practice ought not to be countenanced, and hereafter the court will make strict inquiry in this class of cases whether the alleged imprisonment is actual and involuntary, and if it is found to be, as in this case, a merely nominal restraint, voluntarily submitted to for the purpose of

TAGGART, J. Action to recover balance due on contract for constructing and installing an electric lighting and heating plant, with counterclaim for damages for failure to comply with contract. Judgment was for defendant for his costs on the complaint, and for plaintiff on the counterclaim. Defendant appeals from that part of the judg ment which denies him relief on his counterclaim, and the record is presented under the alternative method.

The plaintiff agreed to construct, on a boat belonging to defendant, an electrical plant, to be comprised of engine, generator, switchboard, storage batteries, electric cooking range, searchlight, and the necessary wiring and equipment to operate the same, and to perform the labor necessary to install the plant, and do the engineering required for and the superintending of the installation of said plant, for which defendant was to pay the actual cost of material and apparatus purchased and manufactured, 75 cents per hour for labor in installing the

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

plant, transportation of workmen from Los Angeles to San Pedro, and their board and lodging at the latter place if they remained there while engaged in the work, and for engineering and superintending 15 per cent. of the actual cost of the plant, such cost in any event to be not less than $2,500 for this purpose. The complaint alleges that plaintiff expended $3,700.81; that there was additional apparatus purchased by it in the sum of $320.39 for use in the plant, which was billed to defendant, upon which it is entitled to a commission; that there have been paid on said items, respectively, $3,437.64 on account of materials, and $200 on account of commissions, leaving an unpaid balance of $666.72 due from defendant to plaintiff.

The answer denies that the materials were of any greater value than the sum paid by defendant to plaintiff, and denies any indebtedness on account of commissions, for the reason that the contract was not complied with by plaintiff and no commissions earned. The counterclaim of defendant of $5,754.03 is made up of the $3,437.64 paid to plaintiff for materials, which it is contended are lost to defendant, because the plant is valueless and useless to him, except that portion thereof which may be used as a lighting plant which is of the value of $1,000, and certain fixtures, air compressor, and searchlight, of the value of $320.39, and the further alleged items of $1,000 damages for loss of use of the boat for two months, owing to delay of plaintiff with the work done; $500 damages for loss of use of the plant for six months, and $500 for completion of installation of parts of the plant left unfinished by plaintiff.

edge of said facts, the defendant paid said sum of $3,610.98 to plaintiff." "(9) The court further finds that, in respect to the counterclaim of defendant against plaintiff, any damage suffered by reason of the nonperformance of said contract by plaintiff has been waived by reason of defendant, with full knowledge of said facts, having paid for and accepted said work."

We are of opinion that there is evidence in the record to sustain these findings. While defendant testified that he was not an electrical expert, he further testified that, after he became suspicious of the electrical ability of plaintiff's supervising manager, Mr. Sirch, he consulted experts and took their advice in the matter; that he was "on the job" generally six or seven times a week, always once a week, for two or three hours; and that, at the second visit of Sirch to the boat, he (Sirch) was guilty of such manifest absurdities in his attempts to take measurements of the boat for the purpose of installing the plant as caused the defendant and his construction foreman to look at each other and smile. This was before any work was done on the contract. The witness Sirch also testified that defendant personally directed the designing, the placing of the conduits, and their quality, and passed upon every step as the work progressed, including the wiring of the circuits, and how they would have to be, and the location of each piece of machinery. "He instructed what he wanted there, and I did what he said." The bill of particulars rendered by plaintiff shows services performed and material furnished between April and December, 1907, principally prior to September; and the 14 checks of defendant introduced as evidence. of payments made by him to plaintiff for the work done under the contract bore dates running from April 29, 1907, to December 21, 1907. This would seem to support finding 6 without further examination of the record. That the later correspondence be-, tween the parties contained charges of mis

The trial court found: The contract to have been made as alleged; that plaintiff pursuant thereto purchased material and apparatus and performed labor to the value of $3,610.98, but did not complete said plant in accordance with the contract; that "defendant had paid to plaintiff" said sum ($3,610.98) "with full knowledge that said contract representation and bad faith made by each had not been carried out in accordance with to the other is not evidence that defendant the agreement entered into between plaintiff did not accept the work as done by plaintiff. and defendant"; "that by reason It was not necessary that the entire work be completed before there could be an acceptance of any of the work by the defendant. There was evidence to sustain the finding of the court to this effect.

The contention of appellant that the decision is against law is equally untenable. The defendant, with full knowledge of all

of said failure to complete said contract" plaintiff "is not entitled to recover any further or additional remuneration for said services rendered, other than said sum of $3,610.98, paid by defendant to plaintiff under the terms of said contract"; that defendant was not damaged in any sum whatever by reason of the delays in installing the the defects in the work, accepted and paid plant; and that defendant is not indebted for it, and he thereby waived his claim for to plaintiff in any sum under the contract. damages. This is not a case in which judgThe two findings, however, as to which ap- ment has been given on a quantum valebant pellant principally urges error, are as fol- or quantum meruit count, but one in which lows: "(6) That defendant was fully inform- the court has found that goods and labor to ed of the fact that said plant had been im- a certain value have been furnished under properly installed by plaintiff, and defendant the contract and so accepted by defendant, acquiesced in any and all delays in the in- notwithstanding they were not up to the

words, there has been an extinction of the obligation of plaintiff to make od the breach of contract of which it was guilty by an acceptance of the work by defendant, which is in the nature of an accord and satisfaction. The court did not recognize the plaintiff's right to retain the amount received by it from defendant on the ground that the goods furnished and services rendered were reasonably worth that amount, but because defendant accepted them in compliance with the contract and paid that amount for them. There is no common count in the complaint. The residue of the damage claim of defendant, which covered all but the matters which the court found were accepted, consisted of damages for delay, repairs, etc., and all these were negatived by the court's findings.

Judgment affirmed.

We concur: ALLEN, P. J.; SHAW, J.

(13 Cal. App. 561)

paid to Glassell pursuant to the contract; that the deed to plaintiff Carol Crouse-Prouty did not describe the land set out in the complaint; that at the time defendant Julia Nolan Rogers received the deed to the lot she had no notice, either actual or constructive, of the deed from the corporation to plaintiff, and that plaintiff had no claim of right, title, or interest in and to the lot in question, as to all of which findings the evidence was conflicting.

The grounds of the motion for a new trial were insufficiency of the evidence to justify the decision, newly discovered evidence embodied in affidavits used upon the hearing of the motion, and errors of law occurring at the trial. In such cases, where the order, as here, is general, this court will not disturb the ruling of the trial court, unless the making of the order constitutes an abuse of discretion. Brooks v. San Francisco, etc., Ry. Co., 110 Cal. 178, 42 Pac. 570; Cole v. Wilcox, 99 Cal. 552, 34 Pac. 114; Von Schroeder v. Spreckels, 147 Cal. 186, 81 Pac. 515.

On December 26, 1885, Andrew Glassell,

CROUSE-PROUTY et al. v. ROGERS et al. who was the common source of title, entered

(Civ. 825.)

(Court of Appeal, Second District, California.
June 6, 1910. Rehearing Denied
Aug. 4, 1910.)

1. APPEAL AND ERROR (§ 977*)-DISCRETION
OF TRIAL COURT-MOTION FOR NEW TRIAL.
Where a new trial is asked for insufficien-
cy of evidence, newly discovered evidence em-
bodied in affidavits used on the hearing of the
motion, and errors of law occurring at the trial,
and the order granting the motion is general,
the ruling will not be disturbed on appeal, in
the absence of an abuse of discretion.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977.**]

2. NEW TRIAL (§ 68*)—Grounds—DISCRETION

OF COURT.

Where the evidence, including newly discovered evidence, tended to establish facts contrary to those found by the court, the granting of a new trial was not an abuse of discretion.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 135-140; Dec. Dig. § 68.*]

Appeal from Superior Court, Los Angeles County; Chas. Monroe, Judge.

Action by Carol Crouse-Prouty and another against Julia A. N. Rogers and another. There was judgment for defendants, and from an order granting a new trial they appeal.

Affirmed.

Haas, Garrett & Dunnigan, for appellants. O. B. Carter and Schweitzer & Hutton, for respondents.

SHAW, J. Action to quiet title. Judgment went for defendants; plaintiffs moved for a new trial, which motion was granted, and defendants prosecute this appeal from the order granting the same.

The judgment was based upon certain findings of the court to the effect that the purchase price of the lot in controversy was not

into a contract with Ralph and W. E. Rogers, whereby he agreed to sell and convey to them a large tract of land, which included the lot in controversy. On March 24, 1886. Ralph and W. E. Rogers transferred this agreement for purchase to a corporation known as the Garvanza Land Company. which, under the terms of the agreement. caused a portion of the land to be subdivided into lots and blocks and designated it as "Garvanza Addition No. 1," map of which was duly recorded. On June 19, 1886, the corporation, for a valuable consideration, executed a deed, which was duly recorded, to plaintiff Carol Crouse-Prouty, whereby it conveyed to her the lot in question. After the execution of this deed by the corporation, and on December 15, 1886, the corporation transferred the Glassell contract to W. F. McClure, who, on the day following, assigned it to Ralph Rogers. On July 12, 1888. Glassell executed a grant deed to Ralph Rogers of the lands described in the said contract, excepting therefrom certain tracts, which excepted lands did not, however, include the lot involved in this action. W. E. Rogers joined Glassell in the execution of this conveyance. This deed recited payment of the consideration mentioned in the contract, and that "this deed is delivered and accepted in satisfaction of the existing obligations of the party of the first part (Glassell) by reason of said contract of December 26, 1885." On January 2, 1892, Ralph Rogers conveyed the lot in question, together with other lands, to one Conway, from whom, by mesne conveyance, defendants acquired whatever title they have to the lot. It thus appears that plaintiffs' claim of title to the lot is by virtue of the deed from the Garvanza Land Company,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes